1. Several points are raised by tbe demurrer which will now receive consideration; and first as to the capacity of the Attorney-G-eneral to institute this proceeding in manner and form as it has been instituted. As to this point it is the settled law of this State that such officer can, of his own motion and without leave of this court, file an information in quo warranto, and take all other subsequent and necessary steps to have such cause thus instituted, passed upon аnd determined. State ex inf. Circuit Attorney v. Bernoudy,
At common law “the old writ of quo warranto is a civil writ, at the suit of the crown; it is not a criminal prosecution. .......This was the true old way of inquiring of usurpations upon the crown, by holding fairs or markets, viz., by writs of quo warranto. Then informations in the nature of a quo warranto came into use аnd supplied their place.” These observations fell from Mr. Justice Wilmot in Rex v. Marsden, 3 Burr. 1817, in the year 1765. See High, Ex. Leg. Rem., sec. 603. In Blackstone, written in 1758, some seven years before the last mentioned period, it is asserted that the proceеding by quo %oarranto “is properly a criminal method of prosecution.” Cooley’s Black., book 3, ch. 17, p. 262. But whatever the original of the writ,
Our Constitution provides in the third section of its sixth article, that this court “shall have power to issue writs of habeas corpus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same.” Inasmuch as the issuance of a writ of quo warranto had not occurred in England for centuries; inasmuch as courts, lawyers and text-writers had been accustomеd for hundreds of years to use the expression “writ of quo warranto” as the legal equivalent and synonym of “information in the nature of quo ivarrcmto,” it will be presumed that the framers of our Constitution were not unmindful or ignorant of such a common form of expression and the meaning which it bore, and therefore when they used the words “writ of quo warranto” they intended thereby only to convey in abbreviated form the meaning that phrase had for so long a period and so continuously been emplоyed to convey, to wit, “informations in the nature,” etc.
Since writing the above it has been found that in other States possessing organic laws like our own, similar conclusions have been reached. State v. Railroad,
And the jurisdiction of this court in this regаrd being conferred by the Constitution, it is beyond the 1 power of the legislature to take it away, and it will not be intended that a legislative enactment was designed to take such jurisdiction away, although such enactment should confer another and distinct remedy upon some inferior court or board. State v. Allen,
It results from these considerations then that the Attorney-Greneral’s “legal capacity to sue” (as it is termed) must, in this instance, stand undoubted.
2. Another ground of demurrer urged under the gеneral head that “the petition does not state facts” etc., is that the information does not charge that the misuser of the franchise is a “tvillful malfeasance” on the part of the respondent company. But onе case has been found which announces that unless the words “a willful nonfeasance and misfeasance” are used in an information against a corporation that such information, lacking such words, will be fatally defective. State v. Columbia & Hamp. T. P. Co.,
If, by the term “ivillfuV, is merely meant “an act done designedly, intentionally or purposely, as contra-distinguished from accident or absence of intention or design” (Com. v. Perrier, 3 Phil. R. 232; Winfield, Adjudged Words & Phrases, p. 645), then there would be no serious objection to its use; and the information, alleging as it doеs that the respondent company, from the time of its organization, to wit, July 19, 1887, has continuously, down to the time of filing the information, done the acts charged in the first paragraph of that information, then the information does charge in substanсe and effect that the acts alleged were willfully, to wit, designedly or intentionally, and not accidentally done. And this court will presume that acts which the law will not sanction if done for over nine years, were not altogether the result of unfortunate mistake or momentary misapprehension.
But if the word “willful” is to be used to convey its usual signification, to wit, that of one with a bad motive or purpose (Com. v. Kneeland,
Moreover, the ancient precedents of forms of in-formations ex officio in the nature of quo luarranto, do not employ the word 11 willful’’ nor indeed any equivalent word; they simply say, after appropriate preamble: “Have used and still do use, without any warrant'or royal grant, the following liberties and franchises, to wit, of all which liberties, privileges аnd franchises aforesaid, the said -, during the time aforesaid, have usurped, and still do usurp, upon the said lord the king, to the great damage and prejudice of his royal prerogative; whereupon the said attorney of the said lord the king, for the said lord the king, prays the advice of the court in the premises, and due process of law against the said-in this behalf to be made, to answer to the said lord the king, by what warrant he claims to have, use, and enjоy the liberties, privileges, and franchises aforesaid.”
And “this is the form, whether the information be brought for an usurpation without any original title, or for a subsequent forfeiture, where the original title is not disputed.” Tomlin’s Law Die. 281, Title, Quo Warranto. And рrecedents are very good witnesses of what the law is. State v. Meyers, 99 Mo. loc. cit. 114.
Nor does the word “willful” appear in the forms of ex officio information in the nature of quo warranto in modern precedents of such informations. State v. Pawtuxet Turnpike Corporation, 8 R. I. 182; People v. Bristol Turnpike Co.,
The information must therefore be held free from flaw though lacking the word uwillful.”
3. It has been urged on behalf of the respondent company that it was advised “by an official opinion of the Attorney-G-eneral, the relator herein, that it had a legal right to so pledge such loans, and did so innocently and in good faith, being thereby misled by the relator who instituted this proceeding.” But to this it may shortly be replied that the demurrer in this ease raises an issue of law, which is alone for consideration, and will not be allowed to be obscured by any consideration of an issue of fact.
4. The act approved April 20, 1895, Laws of that year, page 111, sеction 14, operating as it does only prospectively, can not cure acts of previous misuser alleged in the information. Com. v. Lykens Water Co., 110 Pa. St. 391; and the act of March 27, 1897, Laws 1897, page 90, section 1, has as little to do with arresting the prоgress of the present prosecution. Indeed the respondent admits in effect the illegality of' the act of depositing the alleged full paid up stock of the respondent company with the State treasurer, but clаims that the act “was a nullity and will shortly be terminated by law.” This of itself is a sufficient admission to show the ultra vires nature of the act referred to.
In Turrett v. Taylor,
“Where being legally incorporated for authorized objects a corporation has habitually employed its franchises in an illegal manner to accomplish objects so authorized, or employed them to accomplish objects not authorized in its charter or articles, such acts constitute a рerversion.” 2 Spelling, Exr. Rif., see. 1812.
Quo warranto “will lie either to forfeit the charter or existence of the corporation, or to forfeit particular franchises belonging to it. It lies to put an end to the corporation as a whole for non-compliance with conditions essential to the right to exercise corporate powers of the kind granted to it in its charter or claimed by it in its articles, or for a total perversion or abandonmеnt of its powers legally derived and vested in the incorporators; and it lies on the same grounds to forfeit particular franchises, in which case judgment of forfeiture of these particular franchises may be rendered .withоut affecting the corporate existence. The establishment against a corporation, before a judicial tribunal in which opportunity for defense is afforded, that its condition is such as to render its continuance in business hazardous to the public or to those who do business with it; that it has exceeded its corporate powers; and that it has persistently violated the rules, restrictions, or conditions prescribed by law,— constitutes sufficient rеason for the State which created it to reclaim the franchises and privileges granted to it.” Ib., sec. 1813.
And as corporate grants are always assumed to have been made for the public benefit, any conduct which destrоys their functions, maims and cripples their separate activity, and takes away free and independent action, affects unfavorably the public interest. People v. Refining Co.,
For these reasons we adjudge the information sufficient in law, and if so advised, the respondent corporation may plead further, for which purpose seven days’ time is granted from the date of filing this opinion.