State ex inf. Crow v. Atchison, Topeka & Santa Fe Railway Company

• Decision Date: 03 July 1903
• Parties: THE STATE ex inf. CROW, Attorney-General, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
• Court: Missouri Supreme Court

75 S.W. 776

176 Mo. 687

THE STATE ex inf. CROW, Attorney-General, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY

Supreme Court of Missouri

July 3, 1903

Writ quashed.

Edward C. Crow, Attorney-General, for informant; Frank Hagerman and Adiel Sherwood of counsel.

(1) Information in the nature of a quo warranto is now the proper remedy where a corporation having a legal existence has forfeited its charter as well as where a de facto corporation assumes to exercise corporate powers without authority. Scire facias having formerly been used in the first case and the information in the second. State v. Eq. Loan Ass'n, 142 Mo. 325. It is the proper remedy to test the right to exercise particular franchises not within the terms of the charter, and to oust the corporation therefrom. State v. Taylor, 25 Ohio St. 279; People v Board of Education, 101 Ill. 308; State v Regents, 55 Kan. 389; State v. Topeka, 31 Kan 454; People v. Trustees, 5 Wend. (N. Y.) 211; People v. Y. M. Ben. Soc., 41 Mich. 67; State v Railroad, 53 Ohio St. 190; Com. v. Eq. Ben Assn., 137 Pa. St. 412; People v. Railroad, 15 Wend. (N. Y.) 113; Com. v. Railroad, 53 Pa. St. 9; Com. v. Railroad, 53 Pa. St. 62; State v Cincinnati Gas L. Co., 18 Ohio St. 262. Gross abuse of a corporate franchise is a cause of paramount importance, of which the Supreme Court will take jurisdiction. State v. Railroad, 45 Wis. 585; State v. Ashley, 1 Ark. 304; State v. Stewart, 32 Mo. 379. Where the Legislature has not provided who shall determine whether quo warranto shall be brought (where the Legislature has power to so determine), the discretion is vested in the Attorney-General; the discretion is a judicial discretion over which the courts have no control. State v. Gleason, 12 Fla. 212; State v. McCann, 88 Mo. 386; State v. Meek, 129 Mo. 436; High, Extr. Leg. Rem. (3 Ed.), 615, 619. Information in nature of quo warranto lies in all cases where the ancient writ could be maintained. Lindsey v. Atty.-Genl., 33 Miss. 509; Com. v. Murray, 11 Serg. & R. 73; Rex v. Dawes and Rex v. Martin, cited in Rex v. Clarke, 1 East 43; Rex v. Trevenen, 2 B. & Ald. 482. The Attorney-General may file an information against a body corporate, in its corporate name, compelling it to show by what title it holds a franchise alleged to be usurped. Rex v. Cusack, 2 Roll. 115; Comyn's Dig., Quo Warranto (A); Rex v. Shepherd, 4 T. R. 381; Rex v. Williams, 1 Burr. 407; Selwyn, N. P. (9 Ed.), 1167; Rex v. Corp. of Carmathen, 2 Burr. 869 (1 W. Black. 187). The Attorney-General may also file an information against a corporate officer to compel him to show by what title he exercises a particular franchise, claimed in his official capacity. Rex v. Hertford, 1 Salk.; 1 Ld. Raym. 426; Rex v. Ogden, 10 B. & C. 230; State v. Patterson Turnpike Co., 1 Zab. (N. J.) 9; Com. v. Fowler, 10 Mass. 295; State v. Patterson Turnpike, 1 Zab. (N. J.) 9; People v. Geneva College, 5 Wend. 220. The writ of quo warranto is the proper remedy for usurpation of a franchise. Reynolds v. Baldwin, 1 La. Ann. 162; State v. Ramas, 10 La. Ann. 420. When the State creates a corporation, the grant of power is upon the implied condition that the corporation shall act within the powers thereby conferred. Ultra vires acts, whether wrong or not, are breaches of this condition; such acts do not of themselves end the existence of the corporation but are grounds for direct proceedings by the State for judgment of forfeiture. People v. N. R. Sugar Ref. Co., 121 N.Y. 582 (18 Am. St. Rep. 843); 1 Smith's Cas. 943; 1 Cum. Cas. 570; State v. Oberlin Bldg. Ass'n, 35 Ohio St. 258. For a neglect or abuse of its franchise, a corporation may forfeit its charter as for condition broken, or for a breach of trust. Ang. & Ames. Corp., sec. 774; Com. v. Railroad, 58 Pa. St. 26; Washington Road v. State, 19 Md. 239; Canal Co. v. Railroad, 4 G. & J. 1; Com. v. Ins. Co., 5 Mass. 230; State v. Manhattan Co., 9 Wend. (N. Y.) 351; People v. Kingston Turnpike Co., 23 Wend. (N. Y.) 193; People v. Washington Bank, 6 Cowan (N. Y.) 211; People v. Bank of Hudson, 6 Cowan (N. Y.) 217; Coon v. Railroad, 32 Mich. 248. (2) The remedy was frequently used to oust a corporation from franchises, rights, liberties and privileges illegally exercised, that is, exercised without authority of law, and without any attempt or intention of affecting the right of the corporation to be a corporation, and to exercise its proper rights, privileges and franchises, i. e., to secure a judgment ousting a corporation only from the exercise of the franchises, rights and privileges illegally assumed and usurped. When a corporation is guilty of exercising powers not authorized by charter, the State, instead of proceeding against it to obtain a judgment of forfeiture, may proceed in quo warranto to obtain a judgment merely ousting it from the further exercise of the illegal and unauthorized powers. People v. Ins. Co., 15 Johns (N. Y.) 358; Attorney-General v. Salem, 103 Mass. 138; People v. Railroad, 12 Mich. 389. Quo warranto is the appropriate remedy to oust a corporation from the exercise of particular franchises and powers not conferred by law. State v. Topeka, 31 Kan. 452 (30 Kan. 653); State v. Bingham, 7 Ohio Cir. Dec. 532 (14 Ohio Cir. Ct. 245). And this ouster from franchises unlawfully assumed does not affect the corporation with respect to its proper franchises. State v. Equitable Loan Ass'n, 142 Mo. 341; State v. Borwalk Turnpike Co., 10 Conn. 167; Railroad v. People, 84 Ill. 426; People v. Railroad, 54 Ill.App. 348; Danville Plank Road Co. v. State, 16 Ind. 456; State v. Portland Nat. Gas Co., 153 Ind. 483; Attorney-General v. Railroad, 96 Mich. 65; People v. Railroad, 15 Wend. (N. Y.) 113 (30 Am. Dec. 33); People v. Geneva College, 5 Wend. (N. Y.) 211; State v. Dayton Traction Co., 10 Ohio Cir. Dec. 212 (18 Ohio Cir. Ct. 490); State v. Railroad, 53 Ohio St. 189; State v. Standard Oil Co., 49 Ohio St. 137; Com. v. Sturtevant, 182 Penn. St. 323 (37 A. 916); Com. v. Del. & H. Canal Co., 43 Penn. St. 301; State v. Portgage City Water Co., 107 Wis. 441; People v. Pullman Car Co., 175 Ill. 125. The right to build gates and collect tolls upon roads, bridges, canals, ferries or dams, or any other highway, is a franchise triable in quo warranto; also the right to use streets and highways for the purposes of laying pipes, street railroads, etc. To collect tolls: State v. Centreville Bridge Co., 18 Ala. 617; Chandler v. Montg. Co., 31 Ark. 25; State v. Volcano Rd. Co., 100 Cal. 87; State v. Norwalk Turnpike Co., 10 Conn. 166; Whelchel v. State, 76 Ga. 644; Com. v. Lexington T. R. Co., 6 B. Mon. (Ky.) 398; State v. Alcott, 6 N.Y. 74; State v. Barron, 57 N.H. 498; State v. Hillsdale T. R. Co., 23 Wend. (N. Y.) 254; Thompson v. People, 23 Wend. (N. Y.) 537; People v. Bristol T. R. Co., 23 Wend. (N. Y.) 193; People v. Kingston T. R. Co., 23 Wend. (N. Y.) 222 (35 Am. Dec. 551); Rixley v. Roanoke Nav. Co., 75 Va. 320. To operate ferries: Darnell v. State, 48 Ark. 321; Young v. Farrison, 6 Ga. 130; Com. v. Sturtevant, 182 Pa. St. 323. To build dams: Valentine v. Berrien Springs W. P. Co. (Mich.), 87 N.W. 370; Attorney-General v. Blosom, 1 Wis. 317; State v. Brown, 33 Miss. 500; State v. Com. Bank, 12 Smed. & M. (Miss.) 276. To use streets and highways: People v. Railroad, 117 Cal. 606; State v. Railroad, 140 Mo. 539; State v. Seattle Gas Co. (Wash.), 68 P. 946; State v. Portage St. Water Co., 107 Wis. 612; State v. Mil. Gas Light Co., 29 Wis. 454. "Information in the nature of quo warranto may be maintained by the State through the Attorney-General to restrain a corporation from exercising a particular franchise, power or authority, not possessed by it under its charter or governing statute." State v. N. Y., 32 Barb. (N. Y.) 35; Com. v. Del. & Hud. Canal Co., 43 Pa. St. 295; 3 Thompson, Corps., sec. 6807; Thompson v. People, 23 Wend. (N. Y.) 374. A private relator has no right in a matter involving no grievance peculiar to him to file an information in the nature of quo warranto under the statute of Anne or any statute fashioned thereon, that is to say, wherever the question of usurpation of a franchise by a corporation affects the public generally, and not a private person in particular, the State alone can act and through its Attorney-General or other prosecuting officer. Com. v. Allegheny Bridge Co., 20 Pa. St. 185; Murphy v. Farmers Bank, 20 Pa. St. 415; Com. v. Railroad, 20 Pa. St. 518; Com. v. Chuley, 56 Pa. St. 270, 94 Am. Dec. 75; State v. Vail, 53 Mo. 190; State v. Patterson Turnpike Co., 21 N. J. 9. The abuses of a franchise granted by the State being a public wrong, the proceeding should be instituted by the public prosecutor, and a private citizen is not entitled to the aid of this extraordinary remedy, even though he be a creditor of the corporation. The information in such case is a public prosecution involving the very existence of the corporation, having for its object the recovery to the State of a forfeited franchise, and not the redress of a private grievance. High, Ex. Leg. Rem. (3 Ed.), sec. 654. In this State the proceeding has always been regarded as a civil remedy. State v. Lupton, 64 Mo. 415, 27 Am. Rep. 253; State v. Equitable Assn., 142 Mo. 335; State v. Vail, 53 Mo. 97; State v. Lawrence, 38 Mo. 535; State v. Stewart, 32 Mo. 379; State v. Alt, 26 Mo.App. 673. (3) The Attorney-General, ex-officio, exercises his own discretion, and without leave of court has the right at any time to file in the Supreme Court an information in the nature of quo warranto. State v. Rose, 84 Mo. 198; State v. Stewart, 32 Mo. 379. When the Attorney-General files an information ex-officio for a writ of quo warranto, the writ goes as of right. State v. Berkley, 140 Mo. 184, 41 S.W. 732; State v. Balcom, 71 Mo.App. 27; State...