59 A. 620 | N.H. | 1904
This proceeding is a petition by a citizen of the state for leave to file an information in the nature of a quo warranto, to test the defendant's right to hold the office of secretary of the state board of agriculture during the term for which he was chosen governor.
At common law, a quo warranto information is a proper proceeding to try the title to a public office. Haupt v. Rogers,
As early as 1842 (R. S., c. 171, s. 3), our statutes provided in express terms that the superior court of judicature should have "exclusive authority to issue writs of error, certiorari, mandamus, prohibition, and quo warranto, and may issue writs of habeas corpus and all other writs and processes to courts of inferior jurisdiction, to corporations and individuals, for the furtherance of justice and the due administration of the laws." Like authority is now conferred upon the court. P. S., c. 204, s. 2; Laws 1901, c. 78, s. 2. These statutes left the procedure governing the issuance of process in quo warranto proceedings to be determined by the rules of the common law. State v. Gleason,
The attorney-general, ex officio, has the right to bring an information in the nature of a quo warranto, to try the title to a public office, and is not compelled to ask leave of the court; but a private individual, in the absence of a statute and without the intervention of the attorney-general, cannot either as of right or by leave of the court file an information to try the title to a public office. Osgood v. Jones,
The statutes of 4 and 5 William and Mary, chapter 18 (1692), and 9 Anne, chapter 20 (1710), modifying the common-law practice in England as to filing informations, are not a part of our common law. They were not enacted prior to the emigration, or made specially to apply to the colonies, or adopted here in practice prior to our constitution of 1784. State v. Rollins,
We are aware that in some states a practice prevails similar to *115
that prescribed by the statute of Anne, but more comprehensive in its scope, allowing the court, on the application of an individual, to grant or withhold leave to file an information in the exercise of a sound judicial discretion (State v. Mead,
In some jurisdictions it is held that the attorney-general, in the performance of his official duties, is not an officer of the court but of the state, and as such officer is clothed with a large discretion, in the exercise of which he is not subject to the orders and direction of the court (Commonwealth v. Fowler,
The attorney-general is not a party to this proceeding. The plaintiff does not seek to compel him to try the defendant's title to the office of secretary, and it is not alleged that he has abused his authority in declining to adopt the plaintiff's process. It is therefore unnecessary to decide whether the discretion of the attorney-general is absolute, or may be revised by the court upon a proper showing.
Exception overruled.
All concurred. *116