January
10, 1867; January 11, 1867, Heard
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Information in the nature of a quo warranto.
The
information was filed to determine the legality of the
election of the wardens and vestrymen of St. Paul's
church, in the city of Detroit.
The
pleadings were as follows:
Information:
"Albert
Williams, attorney-general of the state of Michigan, who sues
for the people of the said state, in this behalf, comes here
before the justices of the Supreme Court of the same people,
on the eighteenth day of October, in the year one thousand
eight hundred and sixty-six, and upon the relation of Elon W.
Hudson, Frederick A. Stokes, Kirkland C. Barker, Thomas J.
Cram, Alonzo D. Denny, Alexander W. Copland, Marcus Stevens,
Thomas Woodhams, Israel Mowry and Charles F. Clark, according
to the form of the statute in such case provided, gives the
court here to understand and be informed that Peter E.
DeMill, Benjamin Vernor, James V. Campbell, Thomas Radcliff,
Allen S. Sweet, Willard Parker, Lorenzo M. Mason, Edward
LeFavour, Robert P. Toms and Richard H. Hall, of the city of
Detroit, in the county of Wayne, and state aforesaid, for the
space of one month now last past, have held, used and
exercised, and still do hold, use and exercise, without any
legal election, appointment, warrant, or authority
whatsoever, the office of wardens and vestrymen, to wit, the
said Peter E. DeMill and Benjamin Vernor the office of
wardens, and the said James V. Campbell, Thomas Radcliff,
Allen S. Sweet, Willard Parker, Lorenzo M. Mason, Edward
LeFavour, Robert P. Toms and Richard H. Hall, the office of
vestrymen, in St. Paul's church in the said city, a
corporation created by the authority of the said state, under
the name and style of 'The rector, wardens and vestrymen
of St. Paul's church, in the city of Detroit.'
"And
the said attorney-general further gives the court here to
understand and be informed, that at an election for wardens
and vestrymen, held on the sixth day of September now last
past, the said Elon W. Hudson and Frederick A. Stokes were
duly elected and chosen wardens of said corporation, and
Kirkland C. Barker, Thomas J. Cram, Alonzo D. Denny,
Alexander W. Copland, Marcus Stevens, Thomas Woodhams, Israel
Mowry and Charles F. Clark, were duly elected and chosen
vestrymen of said corporation, and that the said Elon W.
Hudson and Frederick A. Stokes have ever since been, and
still are, rightfully entitled to hold, use and exercise the
said office of wardens; and Kirkland C. Barker, Thomas J.
Cram, Alonzo D. Denny, Alexander W. Copland, Marcus Stevens,
Thomas Woodhams, Israel Mowry and Charles F. Clark, have ever
since been, and still are, rightfully entitled to hold, use
and exercise the said office of vestrymen in said
corporation; which said office of wardens the said Peter E.
DeMill and Benjamin Vernor, during all the time aforesaid,
have usurped, intrude into, and unlawfully held and
exercised, and still do usurp, intrude into, and unlawfully
hold and exercise; and which said office of vestrymen the
said James V. Campbell, Thomas Radcliff, Allen S. Sweet,
Willard Parker, Lorenzo M. Mason, Edward LeFavour, Robert P.
Toms and Richard H. Hall, during all the time aforesaid, have
usurped, intruded into, and unlawfully held and exercised,
and still do usurp, intrude into, and unlawfully hold and
exercise, to wit, in the state and county aforesaid, in
contempt of the people of the state of Michigan, and to their
great damage and prejudice.
"Whereupon
the said attorney-general prays the advice of the court here
in the premises, and for due process of law against the said
Peter E. DeMill, Benjamin Vernor, James V. Campbell, Thomas
Radcliff, Allen S. Sweet, Willard Parker, Lorenzo M. Mason,
Edward LeFavour, Robert P. Toms and Richard H. Hall, in this
behalf to be made to answer to the said people by what
warrant they, the said Peter E. DeMill and Benjamin Vernor,
claim to hold, use, exercise and enjoy the said office of
wardens in said corporation; and the said James V. Campbell,
Thomas Radcliff, Allen S. Sweet, Willard Parker, Lorenzo M.
Mason, Edward LeFavour, Robert P. Toms and Richard H. Hall
claim to hold, use, exercise and enjoy the said office of
vestrymen in said corporation.
"Albert
Williams,
"Attorney-General,
Michigan.
"Hovey
K. Clarke,
"Of
counsel."
Demurrer:
"And
now come the said defendants, by Levi Bishop, their attorney,
and having heard the said information read, they severally
say that they do not think that the said people ought to
impeach or trouble them, or any of them, by reason of the
premises in said information specified or mentioned; because
they severally say that the said information, and the matters
therein contained, are insufficient in law, and that they
need not, nor are any of them obliged by the law of the land
to answer thereto; whereupon, for the insufficiency thereof,
they severally pray judgment, and that they, and every one of
them, be discharged and dismissed by the court hereof, and
from the premises above charged upon them with costs. And the
said defendants would further severally say, that in addition
to all grounds competent to be urged under the above demurrer
to said information, they will also insist on the following
special causes, viz.:
"1.
It is not averred with sufficient certainty and precision in
said information that the 'rector, wardens and vestrymen
of St. Paul's church, in the city of Detroit,'
mentioned in said information, had actually been 'created
a corporation by the authority of this state,' and
continued to be such until said information was filed, so as
to bring the case within the purview of the statute.
"2.
It is not averred in said information by or under what law,
special or general, or when said parties had been so
incorporated.
"3.
Neither is it averred that said offices of wardens and
vestrymen had been created or provided for in such act of
incorporation; what the nature of their duties, or how
appointed or elected, and the tenures of their office.
"4.
It does not appear from said information whether the said
relators had been elected as a vestry at an annual or special
election or not, or whether the said election was authorized
by the provisions of the alleged act of incorporation, or
what the provisions of such act were.
"5.
It is not averred in said information that any particular
defendant usurped or exercised any office claimed by any
designated relator.
"6.
That the information presents the pretended rights of several
relators to several distinct and separate offices, and of
different classes, who, however, are not averred to have
accepted or claimed said offices.
"7.
The alleged corporation is of a private nature; has no
concern with the government or the administration of justice;
has nothing of a public nature about it, and does not come
within the purview of the statute on which the proceedings
are based.
"And
also, that said information is in other respects uncertain,
informal and insufficient, etc."
To
which a general replication was filed.
A. D.
Fraser and L. Bishop, for defendants, in support of demurrer:
1. It
is not averred in a direct, positive, and affirmative manner,
and with sufficient certainty and precision, that said
corporation had been created, and still existed, so as to
bring the case within the purview of the statute.
The
information is radically defective in not setting forth all
the facts necessary to be alleged, to show that the officers
of St. Paul's church had been incorporated according to
the laws of this state. It has been held by the courts of New
York, from which we have adopted the statute regulating these
proceedings, that all grounds of complaint under it must be
set out with all the exactness of pleading required in an
action for a penalty, or for a libel, etc.: 23 Wend. 193,
217, 221, 223, in which the case of the 9 Wend, 374, 375,
laying down the same rule, is fully approved of. To the same
effect are the following authorities: 5 Bacon's Ab.,
Information, C, p. 178, 179; Comyn's Dig., Plead., C, 76;
1 Lord Raymond, 107, 478; 1 Salk. 139; 2 Mass. 444; 4 Id.
471.
This is
essential, that it may appear, whether or not the act charged
comes within the purview of the statute: 1 Chitty's Pl.,
322, 324, and notes; 2 Doug. 159, 278; 5 T. R., 70.
Judge
Buller says: "The allegations must set forth everything,
which is matter of substance, material or essential, to the
plaintiff's demand:" 1 Esp. 299; Buller's N. P.,
167.
The
information must state, directly and affirmatively, the
grounds of complaint, so that they may be traversed: 7
Bacon's Ab., Information, B, Decln., 510; Graham's
Pr., 211; Phillips' Ev., 165, 166; 2 Str. 1151, 1162; 2
Salk. 636; 1 Chitty's Pl., 216, 217, 228.
Facts
only are to be stated, and not arguments or inferences, or
matters of law: 1 Chitty's Pl., 196; Cowp., 684; 5 East,
275; 10 Id. 205; 1 Johns. 468; Willcock on Corp., 466; 7 E.
C. L., 168; 4 Blackf. 392; 6 Ala. 169.
It
ought, in all matters, to state that which is the essence of
the action: 7 Bacon's Ab., Pleas and Pleadings, 510, 465,
477; and this must be done by positive and express averments:
Ibid., 510, 579.
If
these principles are applied to this information, it will be
found that it is destitute of those elements which are
essentially necessary for the object in view.
2. It
is not...
