Commonwealth v. Lexington & Harrodsburg Turnpike Road Co.

45 Ky. 397 | Ky. Ct. App. | 1846

Judge Marshall

delivered the opinion of the Court.

This is a writ of error in the name of the Commonwealth, from a judgment of the Circuit Court of Mercer, quashing a writ of quo warranto, which had been previously ordered by the Court, upon the' affidavit and petition of John W. Adams. The complaint of the peti. tioner was, that said Turnpike Company had erected a toll gate on the road, &c., within one mile of the town of Harrodsburg, and were requiring and taking toll from the citizens, and from the petitioner, for passing the same, which is alledged to be in violation of law. On the prayer of this petition, the writ of quo warranto was issued and was executed on the defendants, who demurred to the petition, and also pleaded two pleas, in whjch, besides referring to the acts of incorporation as authorizing the erection of said gate, and demanding toll thereat, they deny that, the said gate was erected within one mile of the town of Harrodsburg, and aver that it had been erected more than five years before this proceeding was taken. Issues were taken on the demurrer and pleas, and the whole case was submitted to. the Judge, with an agreement that the facts stated in the survey, (one having been made by order of the Court,) were true. There is, however, no bill of exceptions stating the evidence. From which circumstance, as well as from the nature of the judgment, we infer that the case was decided upon the demurrer. But whatever may have been the fact in this respect, the first question to be considered in this Court is, whether the proceeding could be instituted and maintained on the motion and petition of an individual, without the sanction and co-operation of the attorney for .the Commonwealth, who alone is authorized to act for her in the assertion of public rights and the repression of public wrongs.

The statute of 9 Anne, G. 20, which gave an information in the nature of a writ of quo warranto, in the name of the Attorney General, is not in force in Ky. norany'statute of similar provisions.

The power to establish toll gates on the puelio roads in Ky. is grantable by legislative authority alone. The remedy for such usurpation is by a procedding in the name of the Commonwealth, not of an individual.

“A writ of quo warranto,. (according to the common law,) is in the nature of a writ of right for the King, (and here for the Commonwealth,) against him who claims or exercises any office, franchise, or liberty, to enquire by what warrant or authority he supports his claim: Finch’s L. 332; 2 Inst. 282; Tomlin’s L. Dict. 7, 3d vol. title Quo warranto, page 280. It is. in its nature, a public proceeding fora public injury, and although by virtue of the statute of 9 Anne, G. 20, an information in the nature of a quo warranto may, by leave of the Court, be brought in certain cases, on the relation of any person, desiring to prosecute the same, this principle seems to be confined to cases,-in which, the public, at large, is not intersted, and does not affect the course of proceeding for a public injury. Besides that statute has no operation in this State, and there is not only no similar enactment here, but there is no statute of Kentucky so far as we have discovered, which could affect the proceeding in this case. Even in England, and notwithstanding the statute of Anne, it seéms that a quo warranto information against a whole corporation, as a .body, can be brought only by, and in the name of the Attorney General; and we are satisfied, after all the research that we have been enabled to make, upon the subject, that the proceeding in this State, must be by information filed by the Attorney for the Commonwealth. The cases to which we have been referred, in the New Yerk Reports, and others which we have examined, all show that the proceedings by quo warranto whether against corporations, or individuals are carried on in that Slate, by information by the Attorney General; 15 John Rep. 358; 6 Cowan, 196, 212, 217; 21 Wendell, 235, 563; 2 John. Rep. 190; lb. 183.

It cannot Be doubted that the erection of toll gates, upon a public Turnpike road, and the demand and receipt of toll on passing such gate, upon the road, is a liberty, or franchise, grantable in this State by Legislative authority alone. The exercise of such aright, without such authority is a usurpation upon the Commonwealth, in whom alone the right of granting it resides. The object of the writ of quo warranto. in such a case, is to vindicate the public authority, which has been contemned, and to resume the usurped franchise, by an ouster of the usurper. . The remedy, therefore, is a public remedy, to be used in a case like this, 'for public purposes, and which, although it may be founded upon the affidavit of individuals, on which the ittorrney for the Commonwealth may act, cannot be wielded by any individual, who may choose to appear as the champion of the public interest but can be properly commenced in Court, only upon the motion and information of the person, appointed to represent the Commonwealth. Upon his motion, founded upon affidavits or other evidence, disclosing the wrong complained of, the Court might allow him, to file an information, on which the writ of quo warranto should issue; 2 John. Rep. 184. But no movement, having been made, by him, the writ was improperly issued, on the petition of Adams, and the error was properly corrected by its subsequent quashal on the demurrer.

Harlan fy Craddock for Commonwealth; Robertson, Daviess, and Morehead ty Reed for. defendants.

It should be stated, that the Attorney General representing the Commonwealth, in this Court, disclaims the prosecution of the writ of error. And the same considerations which show that Adams had no right to prosecute the remedy, in the Circuit Court, independently of the Attorney for the Commonwealth, prove also that he has no right, to prosecute the writ of error in this Court.

Wherefore the writ of error is dismissed.