34 Minn. 526 | Minn. | 1886
The relator having sought from the attorney general his official authority for the filing of an information in the nature of a quo warranto, and that officer having refused such application, the relator applied to this court for leave to file the same. Thereupon an order was granted requiring the respondent to show cause why the application should not be allowed. Through this pro
On the 27th day of July, by the further command of the governor, 'an order was issued through the adjutant general in terms revoking the commission of the relator as colonel, and directing the respondent to continue in the command of the regiment until the further order of the commander in chief. Since June 2d, when the first of these orders was issued, the respondent has assumed and exercised ■such command, performing duties ordinarily devolving upon the colonel. It is by reason of such acts that he is here charged with having usurped the office of colonel of the regiment. It is alleged in the answer of the respondent that such duties were performed by him only by virtue of his office as lieutenant-colonel, and of the orders above referred to; and both from the language of the petition, and because upon the hearing no suggestion was made that such was not the fact, we consider -that, for the purposes of this application, such ■allegation should be taken as true.
The granting or withholding of leave to file an information of this character, at the instance of a private relator, rests in the sound discretion of the court, and is not a matter of strict legal right. State v. Dowlan, 33 Minn. 536; Reg. v. Anderson, 2 Q. B. 740; Com. v. Allen, 128 Mass. 308; State v. Mead, 56 Vt. 353.
Order discharged.