| Pa. | Sep 15, 1847
In Heydon’s case, 3 Rep. 7, the judges resolved that the true way to arrive at a sound construction of a doubtful statute, is to consider the old law, the mischief, the remedy, and the true reason of the remedy; and it was said in Stowell v. Zouch, Plowd. 864, 365, as well as in Miles v. Williams, 1 P. Wms. 252, that
The great English commentator tells us that the writ of quo warranto lies, at the common law, for the usurpation of a franchise in violation of the right of the king; and that it is in the nature of a writ of right for the king : consequently, that no one but the officer of the king can sue it out. That certainly was the law of the olden time. The judgment on it was conclusive of the right, even against the king; and that, together with the slow and unwieldy march of the remedy, made it give place in practice to the more simple and less decisive method of prosecution by information, in the nature of a quo warranto, filed by the attorney-general in the King’s Bench. Thus stands the common-law proceeding in that court. In our own, the common-law writ of quo warranto was not attempted; but, in place of it, recourse was had to the information in the nature of a quo warranto, pretty much as it stands in England at this day, notwithstanding the tenth section of the ninth article of the constitution, which declares, that “ no person shall, for any indictable of-fence, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia when in actual service, or in time of war or public danger.” In The Commonwealth v. Browne, 1 Serg. & Rawle, 382, it was held that an information in the nature of a quo warranto, being not a criminal but a civil proceeding, to try a right, was not within the constitutional prohibition. Though this decision was unquestionably founded on a sound construction, it still appeared to be not entirely reconcilable to the letter of the constitution.
These informations in nature of quo warranto were found to be so convenient in England, that they were allowed by the 9 Anne to be filed by leave of the court at the suggestion of a corporator, for the determination of disputes growing out of corporate rights, in which the prerogative of the crown was not involved; not, however, in the name of the attorney-general, but in the name of the master of the crown office. That statute, as I have said, was not
Thus stood the law of Pennsylvania at the enactment of our statute; and what were the defects in it which were proposed to be remedied ?
Though we are bound to take our positive law from the statute-book, we are at liberty, in doubtful cases, to go behind the curtain for the motives of the enactment; and haply we have not, in this instance, to deal with probabilities or conjectures. The defects pointed out by the commissioners were want of authority to give speedy remedy by writ, not only in cases at the common law, but in cases identical with, or similar to, those provided for by the statute of Anne; want of power in the Supreme Court to try issues of fact in the country; and the delay incidental to confining the remedy in all cases to a single tribunal. Did the legislature intend to do more than supply them ?
The statute gives the Supreme Court power not only to jjroceed by writ, but to send issues to the county courts in cases of which it has exclusive jurisdiction ; and for greater despatch, to give those courts concurrent jurisdiction in cases of usurpation, or forfeiture of county, township, or corporate franchises, offices, or liberties; but the commissioners proposed no allowance of the writ at the suggestion of a relator. That was added while the bill was under discussion, but limited, as we shall see, to county court cases. The bill was reported on the basis of' the common law, by which the attorney-general is the organ of prosecution, and the exception was introduced by the legislature in juxtaposition with, and as part of, the provision for private rights with which that officer and the public have no concern.
The first section of the statute declares, that “writs of quo warranto may be issued by the Supreme Court in the form and manner hereinafter provided, in all cases in which the writ of quo warranto at common law may have been issued, and in which the said court may have heretofore possessed the power of granting informations in nature of such writand consequently in a case like the present. What was meant by the words form and manner, I will presently attempt to make plain.
So much of the second section as gives rise to the question, is in these words: “Writs of quo warranto in the manner and form hereinafter provided, may also be issued by the several Courts of Common Pleas concurrently with the Supreme Court, in the following
Now what are we to understand by the words “ any such case ?” Upon every principle of grammatical relation and obvious meaning, we must intend that the legislature had in view the cases specified in the same section immediately preceding the final clause. It was of these it had been speaking, and it was of these it was continuing to speak. The words in brackets were judiciously added to provide, in imitation of the statute of Anne, for cases in which the public interest might not be involved, and in which the attorney-general might not be willing or bound to prosecute. For all cases within the exclusive jurisdiction of the Supreme Court, the omission of such a provision is proof of a design to leave the impetration of the writ to the regulation of the common law, and consequently to put the control of it exclusively within the power of the attorney-general. And the reason for such a disposition of it is an obvious one. In the usurpation of a municipal or corporate office, or in the retainer of one after forfeiture of it or expiration of the incumbent’s term, no franchise or liberty of the Commonwealth is invaded or, withheld; and her prerogative is not to be invoked to redress a grievance not her own. But as there may be an invasion of rights of a corporate or municipal nature, it was necessary to introduce the provisions of the statute of Anne, modified and enlarged, for their protection by writ of quo warranto, subject, just as the matter stands in that statute, to the direction and control, as well as at the risk and expense of the complainant.
But, by the words of the first section of our act, the writ is to issue from the Supreme’ Court in the form and manner subsequently provided; and hence an argument that the manner has regard to the application for it authorized by the second section. Though the manner of issuing a writ has no necessary connection with the right of the party applying for it to sue it out, which is a
But it has been said that, as the writ may issue from the Supreme Court in all cases in which informations in the nature of quo warranto had been granted, it may issue in the same manner, and consequently, at the suggestion of a relator, even without aid from the clause in the second section. But did the court ever allow an information on such suggestion for a public wrong ? Respublica v. Griffiths, 2 Dall. 112" court="SCOTUS" date_filed="1790-06-01" href="https://app.midpage.ai/document/respublica-v-griffiths-1303728?utm_source=webapp" opinion_id="1303728">2 Dall. 112, in which the court gave leave to file against a justice of the peace, establishes no such affirmative. That was an information, but not in nature of a quo warranto; for it was assumed, on all hands, that the gravamen was a personal tort. The distinction between public and private wrongs was evidently preserved; and the decision is consequently an authority for the motion before us — not against it. Nor was it overlooked in Respublica v. Prior, 1 Yeates, 206" court="Pa." date_filed="1793-01-15" href="https://app.midpage.ai/document/respublica-v-prior-6308904?utm_source=webapp" opinion_id="6308904">1 Yeates, 206, in which, also, the information was for a private injury. That the name of the attorney-general was used, proves nothing; for, as we have no master of the crown-office, it was necessarily used in all cases, just as it will have to be used in all cases under our statute. Nor can any adverse inference be drawn from the decision in the Commonwealth v. Browne, 1 Serg. & Rawle, 382, that leave to file an informa
As a remedy, for the usurpation of an executive office, or, in other words, an office which can be filled only by appointment of the Governor or by the choice of the people of the state, the statutory writ of quo warranto stands, as to every thing but the form of it, as stood the writ of quo warranto at the common law. The projet of the law, as it was reported by the commissioners, put it on the same footing, even as a remedy for the invasion of a private right; but that there was no design to let a private citizen prosecute for a public wrong, is plain from the third section, which commands the attorney-general to file the suggestion and prosecute the writ where an unchartered association shall have usurped the Commonwealth’s franchise by acting as a corporation. On the usurpation of a municipal or corporate office, as I have said, no franchise or exclusive right of the Commonwealth is invaded; and the intervention of a private prosecutor was extended to it, but not as a remedy for a public wrong. The Commonwealth has her own officer for the protection of her own rights ; and, as she has not explicitly allowed his office to be assumed by any one who may please to try his hand at the business of prosecution as his self-constituted locum tenens, we dare not assume the power to allow it. In Rush v. Caveneaugh, 2 Barr, 189, it was said that, as the office of the attorney-general is a public trust, which involves the exercise of an almost boundless discretion by an officer who ought to stand as impartial as a judge, it might be doubted whether even counsel employed by a private prosecutor should be heard; but that private counsel could, at most, be allowed to act by his permission and under his control. What impartiality is there to be expected from a private prosecutor flushed with the excitement of party victory or defeat ? The officer acts under the obligation of an oath, and at the peril of impeachment; a private prosecutor, under no obligation or responsibility at all; yet we are called upon, without any clear warrant, to let him wield at will the tremendous power of public prosecution. The old common-law right of prosecuting the higher felonies by appeal, which had sprung from a barbarous state of society, was left by our ancestors in the lumber garrets of the law at home ; yet there is as much reason
What induces the mind to pause, not as to the soundness of this conclusion, but as to the policy of the law, is the consideration that, as the governor controls the action of the attorney-general who is dependent on him for office, an unconstitutional appointment by the executive might be without remedy were his legal adviser in error, or regardless of his duty. But the same dependence on the predominance of a party must be felt, place the' power of appointment where we may. In other words, a work of human hands is never perfect; but it is better to bear the ills we have than fly to those we know not of. The legal presumption is, that an officer will do his duty; or that if he do not, the representatives of the people will impeach him, and the senators convict him. The American who denies it, denies a political aphorism, that public virtue is the basis of a republic, and one that is a postulate of his own government. If the presumption is false, it was the business of the convention which framed the constitution on that basis without providing counter-checks to the disturbing forces of party conflict, or of the legislature which framed the statute before us, to dispose of the fallacy. It is our business not to dislocate the joints and articulations of the government, to correct errors of legislation, whether immediately by the people or by their representatives ; but to pronounce the law as we find it. “ Contrary to the spirit and policy of the act,” said Lord Mansfield in Rex v. Saint Peter and Saint Paul, 1 Bott. 433, pl. 483, “ and not obliged by the letter, the court will not make an exception of a case which the act
It is needless to say that, had it been deemed the act of the House, it would have been quashed, as a legislative usurpation of his function. To say no more of that, the decision shows that, in the absence of specific enactment, a case like the present stands on the regulation of the common law. Rut it is very far from clear that a greater degree of inconvenience than arises from it, would not arise from exposing every officer to a writ of quo warranto at the suggestion of any person disobliged by him in discharging his duty. As the judgment in a previous instance might not bar another prosecution by a new relator, the incumbent might be plagued to death. In the Commonwealth v. Darlington, who died before judgment, and in the Commonwealth v. Collins, 8 Watts, 881, in which there was judgment of ouster, the writ issued at the suggestion of the attorney-general. The bill reported by the commissioners was based on the law as it stood; and the amendment of it was limited to specific cases, and, as the present is not one of them, it would be reached only by a writ issued by the attorney-general.
Writ quashed.