Osgood v. Jones, 60 N.H. 543

60 N.H. 543 | N.H. | 1881

The usurpation of a public office or franchise is a public wrong. The remedy is, therefore, a public one, carried on in the name of the public prosecutor by an information in the nature of a quo warranto.

In the absence of statutory regulations, the common-law rule prevails, requiring the proceedings to be instituted in the name of the state by the attorney-general. A private citizen is not allowed to file the information in his own name, and of his own volition, for the law does not contemplate the use of this remedy by individual citizens to redress the wrongs of the state. The process is regarded as in the nature of a civil remedy, but retains the form of a criminal proceeding, so far at least as concerns the parties prosecuting, and the title of the cause. High Ex. Rem., s. 697; Sir Wm. Lowther's Case, 2 Ld. Raym. 1409; Wright v. Allen, 2 Tex. 158; Murphy v. Bank, 20 Penn. St. 415; Commonwealth v. Burrell, 7 Penn. St. 34; United States v. Lockwood, 1 Pinn. (Wis.) 359; Cleary v. Deliesseline, 1 McCord 35; State v. Schnierle, 5 Rich. 299; Lindsey v. Attorney-General,33 Miss. 508; State v. Gleason, 12 Fla. 190; State v. Company, 1 Zab. (N.J.) 9; In re Bank of Mount Pleasant, 5 Ohio 249; State v. Moffitt, 5 Ohio 358; 3 Bl. Com. 262, 263; People v. Utica Ins. Co., 15 Johns 358; People v. Ridgley, 21 Ill. 66; People v. Holden,28 Cal. 123.

The principle is a familiar one, that equity will not interpose to afford relief where full redress can be had at law. A quo warranto information is a specific legal remedy to test the right to a public office, and affords a full and adequate remedy. It is applicable the moment the office or authority is usurped. It therefore is held to oust all equitable jurisdiction in such a case, and no injunction can be granted to restrain the exercise of official functions. High Ex. Rem., s. 641. The authorities in support of this rule are numerous and uniform. 1 Dill. Mun. Corp., s. 272; 2 Dill. Mun. Corp., s. 890; 2 Kent 314; Pierce R. R. 27; Hughes v. Parker, 20 N.H. 58, 72; Updegraff v. Crans, 47 Penn. St. 103; Attorney-General v. Insurance Co., 2 Johns Ch., 371, 376; People v. Insurance Co., 15 Johns 358, 378, 379; Demarest v. Wickham,63 N.Y. 320. See, also, cases cited by the defendant, and extract from the opinion in Dickey v. Reed, 78 Ill. 261, quoted in the defendant's brief.

It would seem to be a fatal objection to the maintaining of this bill that the state is not represented. This is a controversy between two persons, each claiming that he was elected to the office. Whatever our decision might be if this bill is maintained, the state by its prosecuting officer might go over the ground again on a quo warranto proceeding. It is not an answer to this objection to say that the bill may be amended by inserting the name of the attorney-general as prosecutor, for he may not elect to become a party, or to adopt this process.

Equitable relief is not afforded where the title to property merely is involved, and where no irreparable injury appears until the plaintiff's title has been established at law. Burnham v. Kempton, 37 N.H. 485; Hodgman v. Richards, 45 N.H. 28. Much less should a remedy in equity be afforded to one who volunteers to redress a public wrong, without first having established his right to the office which he claims has been usurped. A full and adequate remedy at law is available to the state whenever its prosecuting officer shall see fit to set on foot the process provided by law for determining whether a public wrong has been sustained. No reason has been suggested why a bill in equity has any advantages over the common-law proceeding of quo warranto for determining the result of a contested election. We discover no reason why we should depart from the beaten path. The proceeding by way of a quo warranto information has had the approval of the best legal minds for many generations. It is simple, expeditious, and under the control of such eminent legal ability as the state is able to command in the person of its principal prosecuting officer. By refusing to sanction this innovation upon the ancient mode of proceeding, we believe the result will be on the one hand to discourage unnecessary litigation, and on the other that not only public but individual rights will be fully protected.

Demurrer sustained.

DOE, C. J., dissented. STANLEY, J., did not sit: the others concurred.