Gunton v. Ingle

11 F. Cas. 116 | U.S. Circuit Court for the District of District of Columbia | 1834

Cranch, C. J.

This is an information in the nature of a quo warranto, charging that the defendants use and exercise the " office of president and directors of the Washington, Alexandria, and Georgetown steam-packet company, without any warrant or lawful authority therefor, which said offices they have usurped, and still usurp to the great damage of the lawful authority of the United States.

To this information the defendants, demur,

1st. Because the offices, said to be usurped, are not averred to be offices of a public nature.

2d. Because the information is against divers persons, for divers and distinct offices.

I am satisfied that an information may be sustained at the relation of a private person against a person usurping an office under a private corporation ; that it is in the discretion of the Court to allow, or to refuse to allow such an information to be filed.

I am also of opinion that, in the present case, the information is defective in not showing that the offices exercised by the defendants, are corporate offices. They may be offices held under a company, or limited partnership assuming to itself the name of the Washington, Alexandria and Georgetown steam-packet company. There was once a private association bearing that name ; and, for any thing that appears to the contrary in this information, it may still exist, and be the company named therein.

Every thing averred in the information may be true, and yet the Court may have no authority to interfere by an information in the name of the United States. It must be a case in which the Court would have power to impose a fine. It must be a case in which the public is concerned, or in which the authority of the United States is contemned or abused. For although an information in such cases has become, in effect, a civil proceeding, yet its form is criminal, and indicates that the cases in which it may be used, are such as directly or indirectly concern the public.

But I think it is competent for the relator, with the leave of the Court, to amend the information.

If the information-should be amended, and the Court should be of opinion that the election of the defendants to the offices they claim was illegal, I think they may be amoved, and a mandamus awarded to the president and directors to hold a new election.

MoRsell, J., concurred. Thruston, J., did not sit in the case.

(See also 2 B. & A. 485; 10 Johns. 496; Doug. 524.)