170 Mass. 71 | Mass. | 1898
We think that it must be regarded as settled in this Commonwealth, that an information in the nature of a quo warranto cannot be brought by private persons in their own names, except in cases authorized by statute, and that the only statutory provisions relating in terms to such an information are those contained in Pub. Sts. c. 186, §§ 17-25. This court has no authority to direct the Attorney General to file an information in the nature of a quo warranto. He is not an officer of the court, but an officer of the Commonwealth, and in the performance of his official duties he is not subject to the direction of the court. In Goddard v. Smithett, 3 Gray, 116, the court explain the practice of the Court of King’s or Queen’s Bench in England in directing the Master of the Crown Office to file an information in the nature of a quo warranto on application of a private person. The court there say: “ But there being no corresponding office or officer in this Commonwealth, having authority at common law to prosecute in the name and behalf of the public, and at the same time an officer of this court and subject to its orders and directions, no corresponding practice could prevail here.” The court also say of such an information, that, “ when filed by the Attorney General, it is done at his own discretion, according to his own view of the rights of the government, without leave of court, nor will the court direct or advise him on the subject.” The court'notice particularly the report of the commissioners
The suit of Goddard v. Smithett was brought under the practice act of 1852, c. 312, and, although some expressions in the opinion may not be strictly necessary to the decision, they were manifestly carefully considered, and were intended to remove the doubts which had theretofore prevailed in consequence of the English practice and the dictum in Commonwealth v. Union Ins. Co. There is no precedent in our reports for the court directing the Attorney General to file an information in the nature of a quo warranto in any case, or for permitting private persons to file such an information in their own names, except under the provisions of the practice acts of 1851 and of 1852, and the corresponding provisions of the General Statutes and of the Public Statutes.
In Rice v. National Bank of the Commonwealth, 126 Mass. 300, 303, the court say, “At common law, private individuals, without the intervention of the Attorney General, cannot, either as of right or by leave of court, file an information in the nature of a quo warranto.” In Attorney General v. Sullivan, 163 Mass. 446, the court say, “ The practice of permitting a private individual to apply to this court for leave to file an information in the nature of a quo warranto rests, it seems, in this Commonwealth, upon statute.” The recent case of Attorney General v. Drohan, 169 Mass. 534, was an information in the nature of a quo warranto brought by the Attorney General on the relation of certain private persons to try the right of the defendants to be members of the Democratic City Committee of the city of Boston. The case was heard upon an agreed statement of facts, and both parties were anxious to have the principal question determined. The court held that the information must be dismissed, because a member of the Democratic City Committee was not a public officer; but that, if an amendment was allowed, substituting the relators as plaintiffs, a decree might be entered for them. It was
At common law in England, an information in the nature of a quo warranto to try the title to an office was confined to public offices, and this is the rule in this Commonwealth. The King v. Ogden, 10 B. & C. 230. The Queen v. Mousley, 8 Q. B. 946. Darley v. The Queen, 12 Cl. & Fin. 520. The Queen v. Auchinleck, 28 L. R. (Ir.) 404. Pender v. Lushington, 6 Ch. D. 70. Pulbrook v. Richmond Consolidated Mining Co. 9 Ch. D. 610. Attorney General v. Simonds, 111 Mass. 256. Commonwealth v. Allen, 128 Mass. 308. Commonwealth v. Swasey, 133 Mass. 538.
Commonwealth v. Dearborn, 15 Mass. 125, was an information in the nature of a quo warranto, filed by the Attorney and Solicitor General in behalf of the Commonwealth, alleging that the defendants had used and exercised the office, liberty, and franchise of managers of a lottery granted by the Legislature to the Proprietors of Kennebeck Bridge. The act granting the lottery was approved February 15, 1816, and is St. 1816, c. 117, and it authorized the proprietors to appoint managers of the lottery.
In Lechmere Bank v. Boynton, 11 Cush. 369, there were applications by both parties under St. 1852, c. 312, §§ 42-50, for leave to file informations in the nature of a quo warranto, and the real question was which of two sets of persons constituted the legally organized corporation, both plaintiffs and defendants claiming to be the corporation.
There are dicta in some of our cases which suggest that the title to an office in private corporations may be tried by an information in the nature of a quo warranto, but there are no decisions to that effect, and in one case at least the dicta seem to have been taken from the concession of counsel. New England Ins. Co. v. Phillips, 141 Mass. 535.
We are aware that in many of the States of the United States informations in the nature of a quo warranto are used to try. the title to offices in private corporations, and that the courts in such States, on application, authorize private persons to use the name of the Attorney General for that purpose; and in one or two instances the courts have authorized private persons to bring such informations in their own names. Such proceedings generally have been brought under statutes authorizing them, although in a few States it has been held that they may be brought at common law. Commonwealth v. Arrison, 15 S. & R. 127. Hoppin v. Buffum, 9 R. I. 513. State v. Hunton, 28 Vt. 594.
The question then is, whether the petition in the present case states a case within Pub. Sts. c. 186, § 17, and we are of opinion that it does not. The petitioners áre some of the incorporators named in St. 1894, c. 548, entitled “ An Act to incorporate the Boston Elevated Railway Company, and to promote rapid transit in the city of Boston and vicinity,” and two other persons associated with them, and it is alleged that it was agreed, we suppose by and between the incorporators, that the petitioners each should have the right to subscribe for certain shares in the capital stock of the corporation. It is not alleged that any one of the petitioners has actually subscribed for any shares, or that certificates of shares have been issued to anybody. The Boston Elevated Railway Company has not been made a party defendant to the petition, and there is no allegation that the persons who are made the defendants are themselves claiming to be a private corporation, or that they are attempting to exercise any franchise or privilege except as officers of the Boston Elevated Railway Company, using in its behalf the franchise conferred on that company. The petition further alleges, in substance, that after the organization of that corporation under its charter and the election of officers and the adoption of a code of by-laws, certain of its officers, without the knowledge and consent of the petitioners, undertook to sell and transfer the franchise conferred by the act of incorporation, and all the rights arising thereunder, and all the right to subscribe to the capital stock, to certain persons named; that.this was in fraud of the rights of the petitioners, and invalid in law; and that after this attempted transfer a new board of directors was chosen without the knowledge and consent of the petitioners, and that the persons so chosen have intruded themselves into the offices of directors of the company, and one of them has intruded himself into the office of president of the company, whereby the private rights and interests of the petitioners have been injured and put in hazard.
If the rights of the petitioners have been violated by the sale or attempt to sell and transfer the charter of the corporation, and by the subsequent election of officers of the corporation, the
The suggestion has been made by the counsel of one of the petitioners, that, if the present petition cannot be maintained, it should be amended into a bill in equity. The objection “ that there are no facts set out in said petition which entitle the petitioners, in their own names, to file an information in the nature of a quo warranto, as prayed for in said petition,” was distinctly taken in the demurrer. The questions of law arising on the demurrer have been reserved for the full court in these terms: “ If, upon the facts stated in said petition, the petitioner’s are entitled to the relief as prayed for, an entry is to be made overruling the demurrer and remitting the case for a hearing upon the questions of fact set out in the petition, with leave to the respondents to make such answer to the petition as they may be advised. If, upon the facts stated in the petition, the petitioners are not entitled to file an information as prayed, then the entry shall be, ‘ Demurrer sustained and petition dismissed.’ ” This petition is an application to the court for leave to file an information in the nature of a quo warranto, and is not of itself either an action at law or a bill in equity, and there may be some doubt whether it falls within our statutes allowing amendments changing an action at law into a bill in equity. According to the terms of the reservation, the entry must be,
Petition dismissed.