4 Cow. 358 | N.Y. Sup. Ct. | 1825
now stated the-facts ; upon which facts, he said, three questions had been made at the bar. The first-respected the power and duty of the Court-to grant the information in this particular case ; the second, what ' should be deemed a holding within the words of the charter, so as to constitute a voter; and the third, the validity of the by-law, requiring, an oath of the voter, or other proof as the test of his qualification.
The statute (1 R. L. 108) gives the remedy by quo warranto against any person who shall usurp, intrude into, or unlawfully hold and execute any office or franchise within this - state. To be a corporation is a franchise, (2 Bl. Com. 37,)for the usurpation of which an information always lies. (15 John. Rep. 386 to 389. 1 Str. 303.) And the question is, whether an intrusion into offices, created for the government or exercise of the franchise, is equally within the act as an usurpation of the franchise itself. The 9 Ann. c. 20, seems to treat a corporate office as, in itself, a franchise. The words of our statute are even broader than those of the English j and if, as was agreed -upon the argument, they embrace
In The People v. Sweeting, (2 John. Rep. 184,) there had been great delay in making the motion. The office of town supervisor, to which it related, would expire in the short term of three months.; it was impossible that an issue could have been sooner tried; and the Court, in their discretion, under the circumstances of that case, denied the information.- Here the motion was brought before us at the term next after the election. We cannot refuse it upon the mere chance that a trial may fail. To do this would be equivalent to a refusal in all cases, where the office is annual; a length to which we presume the Court
The second and third questions we shall not discuss at large; because we think they are both disposed of by the People v. Kip & others. That case was said, at the bar, not to apply; the qualification of the voter being that he should have held, in his own name, the stock on which he sought to vote, for a certain number of days before the election; whereas it is here that he should have held simply, without providing that it should he in his own name. If there he any distinction, it is in favor of the present application. The provision in that case was more sedulously restrictive upon the voter, requiring not only a holdings hut a holding in a particular manner, or to he evinced by a particular species of evidence. The case cannot, therefore, be distinguished, at most, in favor of these officers, by any difference of wording in the statute upon which it proceeded from the one now under consideration. On reflection, we are satisfied with the decision in that case.
Rule granted .
IN SUPREME COURT, August Term, 1833.
The People of the State of New York, at the relation of Jacob Barker, Thomas Hazard, jun., and Thomas M. Huntington, against Leonard Kip, David Rogers, John C. Morrison, Duncan Phype, Thomas Darling, Thomas Brooks, Charles Town, Alexander McMuir, Peter A. Jay and Abraham B. Mead.
Samuel A. Talcott, Attorney General of the People of the State of New York, moved, on Tuesday the eighth instant, for leave to file an information in the nature of a quo warranto against the defendants above named, who claim to be directors of- the North River Bank of the city of New York. This motion was founded on a bill in Chancery recently filed against the defondants and others, by James D. P. Ogden, Jacob Barker and others, and on the answers to that bill, and also on an affidavit showing that the relatora above named are stockholders in the North River Bank.
On Friday, Chief Justice Spencer delivered the opinion of the Court, to the following effect:—
“ Without entering any further at this time into the facts disclosed, wo are unanimously of opinion, that the by-law, and the proceedings under it at the election, wore most illegal and reprehensible. The act of incorporation provides, ‘ that each stockholder shall be entitled to one vote in each share of the stock of the bank, which ho shall have held in his own name at least foúrteeñ days previous to tho time of voting.’ (Sess. 44, ch. 14'6, § 8.) Further than this, the inspectors had no right to inquire, as it was not competent for tho directors to pass any by-law at variance with tho positive provisions of tho act incorporating the bank. We therefore feel our- ' selves called upon to grant the motion ; more especially tis tho statute contemplates, in cases of this sort, the most speedy and effectual proceedings which adue regard to the rights of parties and the proper administration of justice will permit.”
Leave granted to file the information instanter.
Counsel for tho plaintiffs,
S. A. Talcott, Att’y Gen. Benjamin F. Butler.
Counsel for the defendants, Samuel Jones.