State v. Elliott

• Citation: 44 P. 248,13 Utah 200
• Decision Date: 28 March 1896
• Docket Number: 698
• Court: Supreme Court of Utah
• Parties: STATE OF UTAH EX REL. BENJAMIN T. LLOYD v. WILLIAM M. ELLIOTT

44 P. 248

13 Utah 200

STATE OF UTAH EX REL. BENJAMIN T. LLOYD v. WILLIAM M. ELLIOTT

No. 698

Supreme Court of Utah

March 28, 1896

Application by the state, by Charles O. Whittemore, county attorney for Salt Lake county, on the relation of Benjamin T Lloyd, for a writ of quo warranto against William M. Elliott.

No brief was filed in this case.

Petition denied.

BARTCH J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This is an application for leave to file in this court an information in the nature of quo warranto, at the relation of a private person. The information states that at the election in November, 1893, one Joseph M. Watson was elected to the office of councilman of Salt Lake City, and thereafter qualified, entered upon, and discharged the duties of the office, until his death, which occurred on the 14th day of December, 1895; that previous to his death, at the election held in November, 1895, he was again elected to the same office for another term of two years, to commence on the 1st day of January, 1896; that on the 17th day of December, 1895, the city council, of which said Watson had been a member, appointed the relator to fill the vacancy occasioned by the death of said Watson; that the relator qualified, and entered upon the discharge of his duties, and continued in the discharge of the same until the 2d day of January, 1896, when the said council refused to recognize him as councilman, or to allow him to exercise any rights or privileges as such, and thereafter, on the 7th day of January, 1896, appointed the defendant to the office in place of the relator; and that the defendant thereupon unlawfully usurped said office. Other facts are stated, with considerable minuteness, to show that the relator is entitled to hold and exercise the duties of the office, and that the defendant is an intruder, and wrongfully withholds the same. The information then concludes with an averment that although the defendant's appointment was void, there being no vacancy, yet he refused, and still refuses, to surrender the office to the relator, and still continues to hold and usurp the same, to the exclusion of the relator and against his will. Such are the facts as they appear from the face of the petition, and as we were called upon to assume jurisdiction in like proceedings on a former occasion, in State v. Young, and as other similar cases will doubtless follow, it behooves us to determine to what extent this court has original jurisdiction, and, as near as may be, under what circumstances we will exercise it, and whether the circumstances indicated by the facts alleged in the petition in this case, are such as will move this court to interpose its authority, assuming that it has jurisdiction.

The constitution of this state, in article 8, § 4, among other things, provides: "The supreme court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus." It has been insisted, however, by some of the counsel, in their arguments before this court (especially in State v. Young, where the question of jurisdiction was raised by demurrer to the petition, and which demurrer was overruled in an oral opinion), that the authority conferred is limited to the ancient use of the writ of quo warranto proceedings, and that the power can only be exercised when the state is concerned, at the instance of the attorney general, and not at the relation of a private person. This position is doubtless the result of the changes in the form of the writ, as shown by its history, and of a confusion of the principles governing the jurisdiction under discussion, as well as to a want of proper appreciation of the meaning of the term "quo warranto," in its ancient and original use, and its use in modern and American parlance, respecting the results designed by these proceedings. The ancient writ of quo warranto was a high prerogative writ. Its origin is so hidden in antiquity that no courts or law writers have yet attempted to state the exact time when it first came into use. It is, however, known that it was a common-law proceeding, and was probably used in the twelfth century, about the time of Richard I. (A. D. 1198.) It was a civil remedy, in the nature of a writ of right, for the king, against any one who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim, in order to determine the right. It was also issued in the case of non-user or misuser of a franchise, and commanded the defendant to show by what warrant he exercised it; having had no grant of it, or having forfeited it by neglect or abuse. Originally the writ issued out of chancery, and the sheriff was commanded to summon the defendant to appear before the king's justices at Westminster; but afterwards, under the statute of quo warranto (6 Edw. I. A. D. 1278, and 18 Edw. I. A. D. 1290), the writ was returnable before the justices in eyre, and, after those justices gave place to the king's justices on the several circuits, the writ was again prosecuted before the justices at Westminster. If the defendant failed to establish his right to the franchise, judgment was given for the king, and the franchise was seized for the king, if it was such as subsisted in the hands of the crown. If not, then there was merely a judgment of ouster. The judgment on the writ (being a writ of right) was conclusive, even on the crown. 3 Bl. Comm. 262; High, Extr. Rem. § 592. The length of the process in quo warranto, together with the discontinuance of the justices in eyre, probably caused the introduction of the more modern and speedier remedy, by information in the nature of quo warranto, and occasioned the disuse into which the ancient writ has fallen. The information was a criminal process, and, in the event the defendant failed to establish a right to the franchise, warranted not only a judgment of seizure for the crown, or ouster, but also the imposition of a fine, as a punishment for the usurpation; the fine, however, being nominal only. The information was filed by the attorney general in the court of the king's bench, and no controversies could be determined by the use of the writ of quo warranto, or by information in the nature of quo warranto, except such as existed between--the crown and its subjects. The writ could not issue, nor the information be filed, at the relation of a private subject; and it appears there was no material change in the proceeding until, by the statute of 9 Anne, c. 20 (A. D. 1710), the province of the information was greatly enlarged. That statute permitted an information in the nature of quo warranto to be brought, at the relation of a private person, with leave of court, against any person who unlawfully held or usurped any office or franchise, and provided for judgment of ouster to follow conviction, and that the relator should pay or receive costs, according to the event of the suit. 3 Bl. Comm. 263, 264. The information was strictly a prerogative remedy prior to the passage of the statute of 9 Anne, and resembled the ancient writ of quo warranto, in that it was used to punish a usurpation of the privileges of the king; and, as has been stated, the proceeding was instituted by the attorney general, without leave of court. By virtue of the statute the machinery of the crown is put in motion at the relation of a private person. The name of the government's officer is used, because the public, as well as the relator, is supposed to have an interest in the proceeding; and leave of court is required to file the information, to prevent imposition upon the government and interference by evil-disposed persons. The information is criminal in form, but, in substance, it has long since been regarded as a civil proceeding for the correction of the usurpation, nonuser, or misuser of a public office or corporate franchise; and as now employed, both in England and America, its object is substantially the same as that of the ancient writ of quo warranto. It has entirely superseded the ancient writ in England, and in most of the states of the union. High, Extr. Rem. §§ 591, 601.

It may thus be observed, from an examination of the origin and nature of the writ of quo warranto, and of the information in the nature of quo warranto , that both were high prerogative writs; that both were employed to obtain the same ultimate result, viz., to test the right of the defendant to the office or franchise; and that prior to the statute of 9 Anne the title to a public office of franchise could be tested only at the instance of the king by his attorney general. The former was a tedious process; the latter, a more convenient, enlarged, and speedy remedy. The former fell into disuse; the latter became substituted for it. High, Extr. Rem. § 600. The expression "writ of quo warranto" is a short and more convenient term than the cumbersome "information in the nature of quo warranto." It can therefore readily be understood why legislators, courts, and law writers say "quo warranto" when they mean "information in the nature of quo warranto;" and such we think is the meaning of the words "quo warranto," as used in our constitution. Any other interpretation would do violence to their known meaning, as used in common parlance in the United States. It would be unreasonable to assume that the framers of our constitution, regardless of the meaning attributed...