People ex rel. O'Brien v. Society of Good Neighbors

• Decision Date: 18 May 1950
• Docket Number: No. 37,37
• Citation: 42 N.W.2d 761,327 Mich. 620
• Parties: PEOPLE ex rel. O'BRIEN, Prosecuting Attorney, v. SOCIETY OF GOOD NEIGHBORS.
• Court: Michigan Supreme Court

Page 761

42 N.W.2d 761

327 Mich. 620

PEOPLE ex rel. O'BRIEN, Prosecuting Attorney, v. SOCIETY OF GOOD NEIGHBORS.

No. 37.

Supreme Court of Michigan.

May 18, 1950.

Gerald K. O'Brien, Prosecuting Attorney for Wayne County, Arthur L. Robbins, Philip A. McHugh, Assistant Prosecuting Attorneys, Detroit, for relator and appellant.

Davidow & Davidow, Detroit, for respondent and appellee.

Before and Entire Bench.

NORTH, Justice.

The defendant and appellee in this case is a non-profit eleemosynary corporation. Its situs and principal place of operation is Wayne county. The prosecuting attorney of Wayne county instituted in the circuit court of that county a quo warranto proceedings in which he seeks 'that judgment be rendered that such corporation be ousted and altogether excluded from such corporate rights, privileges and franchises and that the said corporation be dissolved.' In brief, the prosecuting attorney in the information in the nature of quo warranto charges that defendant has been exercising a privilege or carrying on a business which by law and under its corporate franchise it was not authorized to do. More specifically, it is alleged that the president of the corporation, Morrison T. Wade, has converted the funds and property of the corporation to himself and his wife and 'that the funds and property of the corporation have not been acquired, held, and disposed of as provided by the said act*, or as provided by the purposes of the organization as set out in the articles of incorporation; but on the contrary there has been misapplication and misuse of the money and property belonging to the Society of Good Neighbors and held in trust for the purposes set forth in the articles of incorporation * * *.'

The defendant corporation, appearing specially, made a motion to dismiss. The material grounds urged in support of this motion were that the prosecuting attorney of Wayne county had no authority to institute this quo warranto proceedings, the attorney general of the State being 'the only State officer who may question the acts of a corporation'; and that the statutory authority of the prosecuting attorney to institute and prosecute quo warranto proceedings 'does not include actions as in the case at bar.'

Having heard defendant's motion, the circuit judge entered an order dismissing this quo warranto proceedings. The prosecuting attorney has appealed, leave having been granted. This appeal presents a statutory question since the right to prosecute a quo warranto proceedings of this character is purely statutory. The pertinent statutory law is embodied in chapter 38 of the Judicature Act. That chapter is entitled: 'Of Informations in the Nature of a Quo Warranto, and in Certain Other Cases.' See C.L.1948, § 638.1 et seq., Stat.Ann. § 27.2315 et seq. Section 1 of the chapter provides for filing an information in the nature of a quo warranto in the Supreme Court by the attorney general in the following cases:

'1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state; or any office in any corporation created by the authority of this state;

'2. Whenever any public officer, civil or military, shall have done or suffered any act which, by the provisions of law, shall work a forfeiture of his office;

'3. When any association or number of persons shall act as a corporation within this state, without being legally incorporated.'

Section 13 of the chapter in part provides as follows:

'An information in the nature of a quo warranto may also be filed by the attorney general, upon his own relation, or upon the relation of any private party, on leave granted, against any corporate body, whenever such corporation shall:

'1. Offend against any of the provisions of the act or acts creating, offering, or renewing such corporation; or * * *

'5. Whenever it shall exercise any franchise or privilege not conferred upon it by law * * *.' C.L.1948, § 638.13, Stat.Ann. § 27.2327.

A later section in chapter 38, § 26, provides that: 'An information in the nature of a quo warranto may be filed in the several circuit courts of this state, as well as in the supreme court, and all of the provisions of this chapter shall be applicable to such proceedings in such circuit courts, and all powers conferred upon the several judges of the supreme court by this chapter are hereby conferred upon the judges of the several circuit courts respectively: Provided, That no such information shall be filed and allowed by any such circuit court against any judge of the supreme court or any state officer.' C.L.1948, § 638.26, Stat.Ann. § 27.2340. The next section of the statute, § 27, provides: 'Informations under this chapter may be filed by the prosecuting attorney of the proper county, on his own relation, or that of any citizen of the county, without leave of the court, or, by any citizen of the county by special leave of the court or a judge thereof.' C.L.1948, § 638.27 Stat.Ann. § 27.2341.

As hereinbefore indicated, the sole question presented on this appeal is agreed upon by the parties as follows: 'Has the prosecuting attorney concurrent power with the attorney general to file and prosecute an information in the nature of quo warranto, in the circuit court of his county, for the purpose of forfeiting the charter of a domestic corporation, for (alleged) acts of misuse and abuse of...