State ex rel. Bingham v. Home Brewing Co. of Indianapolis. No. 21689

• Decision Date: 23 June 1914
• Citation: 182 Ind. 75,105 N.E. 909
• Parties: STATE ex rel. BINGHAM, Atty. Gen., v. HOME BREWING CO. OF INDIANAPOLIS. No. 21689.
• Court: Indiana Supreme Court

182 Ind. 75

105 N.E. 909

STATE ex rel. BINGHAM, Atty. Gen.,

v.HOME BREWING CO. OF INDIANAPOLIS. No. 21689.

Supreme Court of Indiana.

June 23, 1914.

Appeal from Superior Court, Marion County; Pliny W. Bartholomew, Judge.

Information in the nature of quo warranto, by the State, on relation of James Bingham, Attorney General, against the Home Brewing Company of Indianapolis. From a judgment for defendant, the relator appeals. Affirmed.James Bingham, Wm. H. Thompson, Edward M. White, and Alexander G. Cavins, all of Indianapolis, for appellant. Henry Warrum, of Indianapolis, for appellee.

COX, C. J.

This was an information in one paragraph in the nature of quo warranto, brought on the relation of the Attorney General against appellee, a manufacturing corporation engaged in the brewing business. The information alleges: That the appellee has persistently and openly abused and exceeded its corporate powers for ten years: (1) By engaging in the real estate business and owning real estate other than that necessary for its business; (2) by loaning money, advancing money to pay retail liquor license fees, and defraying expenses incidental to the issuance of retail liquor licenses; (3) by acting as surety on liquor license bonds; (4) by owning, holding, and leasing saloon fixtures for the purpose of fitting up and operating retail liquor saloons in Indiana; (5) by owning, operating, maintaining, and conducting retail liquor saloons; (6) by violating a large number of criminal statutes of this state, selling to minors, to intoxicated persons, and on Sundays, running gambling rooms, houses of assignation and prostitution, and blind tigers, and by selling intoxicating liquors directly to consumers, etc.; (7) by entering into unlawful conspiracies, undertakings, and combinations to monopolize the business of selling beer and other intoxicating liquors; and (8) by violating the act approved March 11, 1907, commonly called the anti-trust law. That appellee has done all of these acts continually within the state of Indiana and claims the right to do them under its charter. A temporary injunction, judgment to dissolve the corporation, and the appointment of a receiver to wind up its affairs are prayed for. Appellee demurred to the information on the following grounds: (1) That the court had no jurisdiction over the subject-matter of the action; (2) that the plaintiff had no legal capacity to sue; (3) that there was a defect of party plaintiff in that the Attorney General was not a proper relator in said proceedings, but that the proper relator was the prosecuting attorney; and (4) that the complaint did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court over appellant's exception, and appellant refused to plead further and elected to abide by the sufficiency of its complaint. Judgment was rendered for appellee and against appellant, and that appellant take nothing by its complaint and information. From this judgment this appeal is brought, and the ruling on demurrer is presented for review by proper assignment of error.

If any one of the grounds stated in the demurrer is valid, the ruling of the lower court must be sustained and the judgment affirmed.

The foundation upon which the complaint must primarily rest is the authority of the Attorney General as relator to exhibit an information in quo warranto to forfeit corporation charters. The ruling of the trial court, we are informed by briefs of counsel, was predicated on such lack of authority in the Attorney General in this state. The position of appellant on this question is thus stated in the Attorney General's brief:

“Appellant claims that the Attorney General is a proper relator and has the power to exhibit information in the nature of quo warranto: First, by reason of his inherent power as a common-law officer; and, second, by virtue of the statutes of this state relating thereto.”

The first contention of the Attorney General so stated has its foundation on a theory that the action before us is of common-law origin, and governed by the common-law rules with respect to the relator; that the office of Attorney General in this state being one known to the common law is endowed with all the authority with which the common law invested it; that, as there was lodged with the Attorney General at common law, as the chief law officer of the crown, authority to exhibit such informations, this common-law power follows and attaches itself to the office of Attorney General in this state by reason of the name of the office.

[1] The common law of this state, as it has always existed here by legislative adoption, is the common law of England and English statutes of a general nature and not local to that kingdom in aid thereof, as it was prior to the fourth year of the reign of James I (1607), with certain named exceptions, and when not inconsistent with our state or the federal Constitutions or statutes. It was first so adopted from Virginia by the Governor and judges of the Northwest Territory, and has since been so declared by subsequent legislative bodies of the state. Laws of the Northwest Territory 1795 (Reprint) p. 190, c. 64; Revised Laws (Ter.) 1807, p. 139; Laws 1818 (2d Sec. State) p. 308; R. S. 1824, p. 256; R. S. 1831, p. 330; R. S. 1838, p. 398; R. S. 1843, p. 1030; 1 R. S. 1852, p. 351; section 236, R. S. 1881; section 236, Burns 1914. But this provision of our law has not had the effect of making English statutes passed subsequent to 1607 a part of the body of our law. Holloway v. Porter (1874) 46 Ind. 62.

The law and practice of informations in the nature of quo warranto were not as comprehensive under the common law of that time as that embodied in our statutes on the subject as they are now and have been at least as far back as 1843. R. S. 1843, p. 935; sections 1188-1203, Burns 1914. When the ancient writ of quo warranto was supplanted in English practice by informations in the nature of quo warranto, these informations were filed and exhibited by and in the name of the Attorney General. They were not brought in the name of the crown on the relation of the Attorney General, but were filed by the officer in his own name. These were proceedings of a public nature involving public, or crown, rights.

Gradually the practice developed of allowing the master of the crown office (a different law officer, head of the Department of Justice of the King's Bench Division) to exhibit information in the nature of quo warranto on the relation of private individuals to enforce certain of their rights in offices, franchises, and the like. These actions were brought by the master of the crown office in his own name on the relation of the private individual. The vexatious and irresponsible character of this litigation led to the enactment of Statutes 4 and 5, William and Mary, c. 18, which required the private individual to enter into a recognizance in the sum of £20 and obtain leave of the court before he could require the master of the crown office to file such an information on his relation. As this statute was enacted long after 1607, it is no part of the common law of Indiana. Thereafter the practice in filing such informations on private relation was covered by the Statute 9 Anne, c. 20, enacted in 1711. This statute is no part of the common law of Indiana, although it may doubtless have suggested our statute, and the information statutes of other states; but our statute goes further and covers the entire field embracing those public causes which the common law intrusted to the Attorney General, as well as the suits of a private interest which the Statute of 9 Anne covered.

That part of the law of England concerning informations in the nature of quo warranto which prevailed at the date of the settlement of Virginia does not contain any discoverable act of Parliament, certainly not the Statutes of William and Mary, or of Queen Anne. And the practice concerning this extraordinary remedy which existed in 1607 amounted to this and no more: The writ having fallen into disuse, the information in the nature of quo warranto would lie at common law in the name of the Attorney General to secure a forfeiture, ouster and fine, in the case of a misuser of corporate franchises.

[2] But in this state the common-law remedies of the Attorney General in the one instance, or of the master of the crown office in the other, and the practice and the proceedings in filing informations in the nature of quo warranto, have been made the subject of special legislation. Sections 1188-1203, Burns 1914. And such legislation provides a definite, comprehensive, and sufficient method of enforcing these remedies, and especially of the remedy which the sovereign might seek to exercise against a corporation to secure a forfeiture of its franchise. This is the only statutory method in Indiana for forfeiting charters, or testing the usurpation of corporate franchises; and this statutory remedy takes the place of the common-law proceeding and is exclusive in all of the particulars of remedy and procedure which it covers. If matters of procedure essential to the remedy were in any respect absent from the statute, doubtless we might look to the common law to supply the omission.

Judge Potter of the state of New York, whose legislation on this remedy has not been unlike that of this state, in his work on Corporations, says:

“In most of the states, the proceedings are authorized and sometimes regulated by statute; where a statute provides the remedy to test the rights to exercise a franchise or office, it is generally held to be exclusive of all other remedies for that purpose, it being a universally recognizedrule that the sovereignty conferring the franchise may, at any time, in its own appointed way, and forms, inquire into the manner in which the franchise granted is used.” 2 Potter on Corporations, § 665; Palmer v. Foley, 36 N. Y. Super. Ct. 14;A.,...