The Common Law Writ of Quo Warranto

ANTEAU’S SURVEY OF PROCEDURAL LAW, COURTS VENUE & STANDING

by John Charlton

(October 13, 2009) — Some further documentation will clarify the nature of Quo Warranto in common law.  The following is excerpted from The Practice of Extraordinary Remedies: Habeas Corpus and other common law writs, by Chester James Antieau, 1987, which considers the multifaceted and varied nature and application of the writ of quo warranto, throughout the countries which follow common law, in Part II:  The Procedural Law.  For footnotes and other aspects on this writ, see the link above.

§4.14 COURTS AND VENUE

The state supreme courts customarily are empowered to grant quo warranto,¹ and at times have exclusive authority where state officers are concerned.²

Frequently quo warranto proceedings can be brought before circuit,³ superior⁴ and district⁵ courts, and occasionally before intermediate appellate tribunals.⁶ Unless constitutional or statutory provisions are expressed so clearly as to be particularly beyond a reasonable doubt, the power of all state courts of general jurisdiction to entertain quo warranto actions will be deemed undisturbed.⁷

Although the All Writs Act authorizes all federal courts to issue all writs necessary or appropriate in aid of their jurisdiction and agreeable to the usages and principles of law,⁸ and there is decisional law that the circuit courts of appeal can issue the writ of quo warranto,⁹ it has been held that “except as otherwise specifically provided by statute, there is no original jurisdiction in the federal courts to entertain informations in the nature of quo warranto.”¹⁰ The federal district court for the District of Columbia has quo warranto jurisdiction by the terms of a specific Congressional enactment.”

Venue is customarily set in the county in which the political subdivision is located where quo warranto concerns the validity of its incorporation, the exercise of powers or its ouster;¹² it is usually in the county in which the political subdivision is located where the action involves the title of an officer, his claim to powers or his ouster;¹³ where private corporations are defendants venue is generally at their principal place of business or their registered office;¹⁴ where the action is brought against individuals for usurping franchise or privileges, venue is properly in the county of their residence or place of business.¹⁵ Where there are no particular venue statutes applicable to quo warranto actions, the place of suit is controlled by the general venue statutes of the jurisdiction.¹⁶

§ 4.15 STANDING – PUBLIC OFFICIALS

As principal legal officers of the states, attorneys-general are overwhelmingly accorded standing to bring quo warranto.^l

Frequently county attorneys and prosecuting attorneys are authorized to bring actions of quo warranto.²

Attorneys general and prosecuting attorneys are accorded broad discretion in deciding whether to bring quo warranto,³ and it was said in 1963 that in California mandamus had never issued to compel the Attorney General to bring quo warranto.⁴ However, it was there recognized two years earlier that a citizen could compel such action by the Attorney General if he could “demonstrate that the Attorney General’s refusal to sue was an extreme and clearly indefensible abuse of his discretion.”⁵ Elsewhere, too, it is generally accepted that the discretion of an attorney general in refusing to bring quo warranto is not an arbitrary discretion but subject to mandamus if abused.⁶ The Pennsylvania Supreme Court has well said: “The attorney general or district attorney may not arbitrarily refuse either to bring the action or prevent the use of his name by a private relator. Should he do so, the party aggrieved by his failure may, in a proper case, compel his co-operation by mandamus.”⁷ Alternatively, an aggrieved party has been able to secure from a court leave to file the suit himself.⁸ Admittedly, the burden is on the person trying to compel an attorney general or local prosecutor to file quo warranto to make a plain showing that the facts justified the action⁹ The Minnesota Court has said that it would take a case that “would be exceptional, and one in which it clearly appears that public interests require it” before it would reverse the decision of the attorney general.¹⁰

In Alabama judges of the circuit courts can initiate quo warranto actions.¹¹

In California, by provisions of the Code of Civil Procedure, §811, the supervisors of any county or city, or the legislative body of any municipal corporations, are authorized, without consent of the Attorney General, to bring quo warranto to prevent local usurpations of offices or privileges.¹²

Under statutes permitting municipal corporations to be relators in suits brought by attorneys general, they have been able to contest the title of individuals alleged to be usurping municipal offices.¹³

§ 4.16 STANDING — PUBLIC OFFICIALS ON RELATION OF PRIVATE PERSONS

The statute of Anne in 1710 for the first time authorized a proper officer of the court, with leave of the court, to exhibit an information in the nature of quo warranto, at the relation of any person desiring to prosecute the same, to be called the relator.^l This is deemed part of the common law we inherited from England in a number of States,² and there is virtually everywhere in America statutes similarly empowering attorneys-general to bring quo warranto, not only on their own information, but also on the information, complaint or relation of private persons.³

Sometimes the statutes provide for action by the attorney general on his own “or at the relation of any person interested.”⁴ Even without such wording, courts have held under this type of statute that a private person who wanted to be a relator in a quo warranto action brought by the attorney general must generally show a “special” interest, that is, one differing in kind and quantum from that of the general public.⁵ The purpose of this requirement, says the Missouri Court, “is to prevent the harassment of public officials at the whim of private persons.”⁶

If the attorney general or other authorized legal officer consents to the relation of a private party, there is a good probability that the court will find the individual sufficiently interested, but it cannot be taken as a foregone conclusion.⁷ Under some of these statutes, if the attorney general refuses to accept the relation, the private person can go no further.⁸ Even where an attorney general has consented to a relation, cases have generally emphasized that the litigation continues as his responsibility and control.⁹ Absent statute, he has even been permitted to withdraw during the course of litigation over protests of the private relator.¹⁰ Statutes at times deny Attorneys General power to dismiss the action after having consented to private relators.¹¹

Even though statutes frequently provide that the Attorney General “shall” exhibit an information on request of relators, the language is construed as “may,” courts being inclined to respect the discretion of attorneys-general in this matter.¹²

§ 4.17 STANDING – PRIVATE PERSONS BRINGING IN OWN NAME THE COMMON LAW

The great weight of authority at the American common law was to the effect that private individuals in their own name could not bring an action of quo warranto.¹ There were a few cases holding that the Statute of Anne² was part of our common law and that it could be construed to allow private persons to bring quo warranto with the leave of a court,³

Where, at the common law, the purpose or effect of the proceedings was to attack the validity of a municipal corporation and the legal existence of its franchise, the proceeding could only be brought by the attorney general and in the name of the state.⁴

Private parties at common law cannot by quo warranto attack the exercise of municipal powers by municipal corporations,⁵ nor question the right of such municipalities to exercise claimed franchises.⁶

At the common law private individuals cannot in their own name bring quo warranto to try the title to public office or to oust alleged usurpers.⁷

Actions in quo warranto to oust private corporations for having done acts of forfeiture were denied to private individuals, being brought only by the attorney general of the state.⁸

§ 4.18 STANDING – PRIVATE PERSONS BRINGING UNDER BROADLY WORDED STATUTORY AUTHORIZATIONS

In a number of States broadly worded statutes seemingly authorize quo warranto actions to be brought in particular instances by private individuals. The Alabama statute provides “An action may be commenced…in the name of the State against the offending corporation on the information of any person.”¹ The Supreme Court has noted that the statute “has extended the right to institute such proceedings to a person giving security for costs of the action,” adding: “But in such case, the action is still prerogative in character, brought in the name of the State, on the relation of such person, who becomes a joint party with the State.”² A companion statute authorizes an action to be commenced in the name of the State against offending parties,³ and the Supreme Court allows private persons to sue in quo warranto to remove unqualified persons from public office.⁴

The Georgia statute has long authorized quo warranto to be brought by any person “interested therein.”⁵ The Supreme Court reported in 1930 that “it has been held by this Court that an information in the nature of a writ quo warranto may be legally instituted by a citizen and taxpayer in his own name, without the intervention of the state through its public officers.”⁶ Residents, voters and taxpayers have been held to be sufficiently “interested” to bring quo warranto to test the right of a mayor and aldermen to office.⁷ “Every citizen of a town,” says that Court, “has an interest in its municipal offices, which will support a quo warranto proceeding to test the right of incumbents thereto.”⁸ In holding that “any citizen and taxpayer may file,” a proceeding to declare an office vacant, the Georgia Court remarked: “The fact that the applicants were citizens and taxpayers made them ‘interested’ in the office, in the sense in which the word is used.”⁹

While the Hawaii statute does not expressly authorize quo warranto to be brought by private persons, the statute states that the pleading is to be “sworn to if the application is made by a private individual,”¹⁰ and this has long given rise to a justified implication that private parties were intended to have standing.¹¹ No special interest is required by an individual under the Hawaii statute,¹² and it has been held that a resident, citizen and taxpayer can bring quo warranto to oust a person unlawfully occupying a public office.¹³

The Massachusetts statute accords to any person injured by the exercise of a franchise or privilege conferred by law by a private corporation or by persons claiming to be a private corporation the right to bring a quo warranto action for redress.¹⁴ Under this statute, quo warranto is denied where there is another adequate remedy available to the petitioner.¹⁵ The New Jersey statute provides that the proceeding in lieu of quo warranto “may also be instituted as of right against a person for usurping, intruding into or unlawfully holding or executing any office or franchise in this State, by any person who under the former practice, would have the requisite interest to exhibit an information in the nature of a quo warranto with the leave of court.”¹⁶ Under the earlier statute, it had been held that a citizen and taxpayer of a municipality had standing to bring quo warranto to test the right of an incumbent to public office, so long as the petitioner was not attacking the validity of the existence of the government entity whose office was at issue,¹⁷ and now, even without leave of court, standing exists under the same circumstances, the New Jersey Court stating: “A taxpayer and inhabitant of the city or county…is interested in the due selection of its officers and he is entitled to interpose by information in the nature of quo warranto when such officer has been illegally selected.”¹⁸ With reference to the present statute, a New Jersey court has said: “A proceeding in the nature of quo warranto involving a municipal office or position must under the former practice as well as now be brought by a citizen and taxpayer of the city unless he himself is a claimant to the office.”¹⁹

In North Dakota the statute provides that quo warranto can be brought by “any person who has a special interest in the action” when (a) the defendant is alleged to be usurping a public office or one in a domestic corporation; (b) when the defendant is alleged to have forfeited his public office; and (c) when any person is acting as a corporation without having been lawfully incorporated.²⁰ This statute has been held not to empower a private citizen to bring quo warranto to attack annexation by a municipality.²¹

The Pennsylvania statute provides that “the writ above may be issued upon the suggestion…of any person or persons desiring to prosecute the same.”²² Pennsylvania courts have consistently construed “any person” to be only a person with a personal and special interest at stake.²³ The Supreme Court has said:

“The words ‘any person or persons desiring to prosecute the same’ have uniformly been held to mean any person having an interest of his own to be affected, or a wrong to be redressed, separate and distinct from that of the Commonwealth or the community in general, and not to give a private person the use of the writ in the case of a public right involving no individual grievance. In the absence of such special interest, differing not merely in degree but in nature and kind, from that of the public at large, a private individual cannot demand a judgment of ouster on a writ of quo warranto and this is particularly true where, as here, such a judgment would not place the plaintiff himself in office.”²⁴

If ouster would place the plaintiff in the office, he has an interest that satisfies the Court.²⁵ Although the Court has said that “if judgment of ouster would not place him in office it cannot be said that he has such a right as would warrant a judgment of ouster against the official in office,”²⁶ this is too broadly stated, and “a special and individual interest” can be found in other instances, as well.²⁷ It is enough, the Court stated in 1980, “if a private person…has been specially damaged.”²⁸

In Virginia “any interested person” may apply by petition for a writ of quo warranto.²⁹ The writ can be dismissed in the discretion of the court and it was once held that a citizen and taxpayer was not a sufficiently interested person under the statute.³⁰ A claimant to a public office who makes out a prima facie case is a person interested under the statute.³¹

§ 4.19 STANDING — PRIVATE PERSONS SUING IN OWN NAME UNDER STATUTES PERMITTING WITH LEAVE OF COURT

It is now fairly common for states by statute or court rule to allow private individuals, under certain circumstances at least, to bring actions in quo warranto (or its modern equivalent) with leave granted by court.’

Frequently by statute or rule the individual seeking leave must be an “interested person.” Under the Illinois statute, “the petition must allege that the individual seeking relief has a private interest in the matter and that the action sought to be challenged by quo warranto has harmed that interest.”³ Other courts have often said that “a person who has no greater interest than the public generally cannot maintain an action….”⁴ Generally claimants to the public office involved have been accepted as “interested persons,”⁵ and there has been expressed at times the unfortunate notion that only such claimants are “specially interested.”⁶

Courts have on many occasions acknowledged that other individuals have sufficient interest to bring quo warranto in their own name under these statutes. Courts have indicated individuals can be given leave of court to test both the title and acts of public corporations.⁷ A taxpayer was held to have a sufficient interest to test the right of a superintendent of a municipal waterworks to hold office.⁸ The New Jersey Court has aptly said: “A taxpayer and inhabitant of the city or county…is interested in the due selection of its officers and he is entitled to interpose by information in the nature of quo warranto where such officers have been illegally selected.”⁹ Even though they had not sought the leave of court required by statute, taxpayers have been able to bring quo warranto to attack the validity of a school district organization, the appellate court remarking that it was then too late to question the adequacy of a request for leave.¹⁰ A town has been given leave to test by quo warranto the validity of the incorporation of a neighboring city, even though the attorney general had refused his consent.¹¹ Qualified members of a municipal council have been held to have a sufficient interest to bring a quo warranto action testing the title of other councilmen.¹² So, too, four managers of a city were able to bring this action against another person who also claimed to be a manager of the city.¹³

Where quo warranto is available to test the title in private corporations, shareholders in such corporations have sufficient interest to bring the action under these statutes.¹⁴

The granting or denial of leave to file quo warranto is a matter within the sound discretion of the court,¹⁵ the Minnesota Court typically stating: “The granting or withholding of leave to file an information for a writ of quo warranto at the instance of a private individual, with or without the consent of the attorney general, rests in the sound discretion of the court.”¹⁶

Statutes authorizing private persons to bring quo warranto in their own names customarily require them to post security for costs.¹⁷

§ 4.20 STANDING – PRIVATE PERSONS BRINGING IN OWN NAME UNDER STATUTES AUTHORIZING SUCH ACTION BY CLAIMANTS OF OFFICE INVOLVED

Statutes and court rules exist in some states specifically allowing claimants to an office to bring quo warranto either in their own name or in the name of the state.¹ The Utah Rule permits such action by one claiming either public or private office,² and the Washington statute authorizes such action broadly whenever the petitioner “claims an interest in the office, franchise or corporations which is the subject of the information.”³

Actions under the more limited statutes are restricted to suits to try title to public office,⁴ and limited to actions brought by persons in good faith claiming title to the office.⁵ Under the Washington statute, where persons other than claimants to offices can bring quo warranto, the Court permits action by claimants to office,⁶ but demands that others prove that their interest is “a special interest, not common with the interests of the community.”⁷ Under the typical statute of this kind, a claimant to office need not secure leave of court before proceeding in quo warranto.⁸

Claimants of public offices have been able to bring quo warranto, either in their own name or the name of the state, not only under the foregoing statutes, but also under other variously worded statutes,⁹ and this is one of the very rare instances in which they were occasionally permitted to sue in quo warranto at the common law.¹⁰

The indicated New Jersey statute has been construed to place upon the plaintiff the burden of proving that the defendant incumbent lacks the necessary qualifications for the office.¹¹ So, too, laches runs against private relators seeking office under the New Jersey legislation.¹²

§ 4.21 STANDING – PRIVATE PERSONS BRINGING IN OWN NAME UNDER STATUTES AUTHORIZING SAME AFTER ATTORNEY GENERAL HAS REFUSED TO BRING ACTION

Statutes and rules of court in a number of jurisdictions permit private individuals to bring quo warranto, either in their own name or in the name of the state, after they have requested the attorney general to commence such action and he has refused.^l

Notwithstanding the unqualified language of the statutes, e.g. “a private person,” “any citizen,” “any elector”, courts operating under these statutes have been inclined to rule that persons generally cannot bring quo warranto under these statutes, but that the action can be brought only by individuals with special interests.² The Wisconsin Court illustratively has said: “In quo warranto actions…a private person acting as relator must show that he has sustained or is in danger of sustaining injury as a result of the challenged act, and he must show a special interest. It is not sufficient that the relator has merely a general interest common to all members of the public.”³ Although the earlier Illinois ruling that a citizen must have an interest different in kind and quantum from the general public⁴ was later overruled,⁵, Illinois courts currently hold that “the petition must allege that the individual seeking relief has a private interest in the matter and that the action sought to be challenged by quo warranto has harmed that interest.” The appellate courts add: “The private interest alleged must be directly, substantially and adversely affected by the action sought to be challenged in the quo warranto proceeding. The damage to that private interest must be then occurring or certain to occur; the petitioner cannot rely on an expected damage to his private interest.” Significantly, the court adds that “the private interest of one citizen may be an interest shared by other members of the community for purposes of establishing quo warranto standing.”⁶

By the language of the Florida statutes actions are extended only to “any person claiming title to an office” but the Court has held nominees for a public office, having rights not shared by the general public, are entitled to bring quo warranto.⁷

The Colorado Court has construed its Rule as being inapplicable to test title to offices in unincorporated associations,⁸ but it authorizes actions to test title in both public offices⁹ and offices in corporations operating under Colorado statutory authority.^I0 It has also been utilized to dissolve private corporations.¹¹

Individuals have in many cases been held to have sufficient interest to bring quo warranto under these statutes and rules.¹² A citizen, elector and taxpayer was able to bring quo warranto, upon refusal of the attorney general, to test the right of the Wisconsin Lieutenant Governor to office.¹³ A taxpayer was held to have standing under the Colorado Rule to attack the expenditure of funds by his school district to support a state high school activities association, which the Court ruled was operating under a “franchise.”¹⁴ A resident, elector and taxpayer under the previous Colorado statute was held to have standing to bring quo warranto to dissolve a private corporation for having sold alcoholic beverages.¹⁵ The interest of the petitioner as a business competitor has been held sufficient under the Wisconsin statute.¹⁶

Under this type of statute, citizens bringing quo warranto are customarily obligated to post adequate security for costs.¹⁷

§ 4.22 STANDING – PRIVATE PERSON BRINGING WITH LEAVE OF ATTORNEY GENERAL

Under California law a private party seeking to bring quo warranto must submit a “leave to sue” application to the Attorney General.¹ Reportedly, attorneys-general have “repeatedly issued” denials.²

By North Carolina law leave of the attorney general must be sought by private applicants for quo warranto, but the statute interestingly provides that the attorney general “shall grant leave that it may be brought in the name of the State, upon the relation of such applicant, upon the applicant tendering to the Attorney General satisfactory security to indemnify the State against all costs and expenses which may accrue in connection with the action.”³ With leave of the Attorney General private persons have been able to bring quo warranto to test the right of persons to various public offices.⁴

§ 4.23 STANDING – PRIVATE PERSONS BRINGING UNDER STATUTES PROVIDING SUCH AUTHORITY WHERE LOCAL GOVERNMENT OFFICES ARE INVOLVED

There are statutes authorizing quo warranto actions by private individuals where matters of particularly local concern are involved. Thus, a New Jersey statute allows a proceeding in lieu of quo warranto by any person who believes himself entitled to either a municipal office or franchise.^l

A Wisconsin statute provides “Such action may be brought in the name of the State by a private person on personal complaint… when the office usurped pertains to a county, town, city, village, school district or vocational, technical and adult education district.”² A commentator has written that “in a great number of Wisconsin cases, a person who laid no claim to the office in question was allowed to bring quo warranto proceedings to determine by what authority the defendant held a public office, the only interest of the relator in the action being that he was a taxpayer, property owner and resident of the district affected.”³ It is unclear as to which statute he was referring, but the statement may only be accurate where the attorney general had been requested to bring action under Wisconsin Statutes Annotated 784.04(2) and had refused.

In Conclusion

It is important to make distinctions, when discussing any subject.  Clearly an individual acting for his own ends, without regard to upholding the constitution, in common law was not recognized to have the right to move a quo warranto action without receiving leave of the government or court; this is because as a private individual he is subject to the government.  This has nothing to do with the inalienable right of We the People to employ quo warranto, because We The People is anterior, superior, and prior to the government.

As we can see from the excerpt above there are a myriad of different kinds of cases or injuries which might merit the use of quo warranto, in which the plaintiff has no private right to move the action without permission of the government or court. These involve purely personal injuries, without any attempt to address a Constitutional crisis or the failure of the entire government to act; and in many jurisdictions, due to the formal and specialized nature of the quo warranto, it was recognized to be employed as a last result.

As shown before in the articles A History of Quo Warranto, and the 7th Circuit Court’s Opinion on Quo Warranto, and Quo Warranto is Our Inalienable right; there is an entirely different basis for the claim of the right to use Quo Warranto by We the People:  a common law right, because just as in Common Law the sovereign had this right, so We the People as the sovereign author of the Constitution has this right; a natural right, because We the People gave the Federal Government its existence, and therefore have all power over it; an inalienable right, because this relation of We the People to the Constitution and to the Federal Government is a permanent one, essential to the dignity of each party.

Thus it is at once true that no private party has a private right, a common law right, or a natural right to initiate a quo warranto action without permission of the government or the leave of the court, where the statute allows this; and at the the same time it is true that We the People in virtue of being the authors of the Constitution have this inalienable, common law & natural right to move such an action, without permission of the government or court, which government and courts are always and forever subject to We the People.

The more important question then, is when does any individual U.S. Citizen, or group of the same, obtain the mantel of We the People, so as to claim this right?  Clearly, when the Executive Branch is obstructed, the Legislative Branch is negligent and refuses to act; and the Judicial Branch is suborned by accepting unlawful appointees.  In that case, which exists today in the present Constitutional Crisis, there is de facto no lawful Federal Authority except that which seeks to restore Constitutional government by entertaining such an action to test the eligibility of the President, even though it is so manifestly obvious that he is not eligible.  In truth, the action brought by any concerned citizen, seeking to restore the Constitutional order, would be sufficient and just cause to claim this right of We the People.  But in the final analysis, it is merely out of deference to the Courts and law that the citizens need to make such recourse, because no court action is necessary to prove what is manifestly obvious.  Citizens could just as easily arrest and imprison the usurper and his co-conspirators in every branch of the government; as that is their sovereign perogative right.  To deny that is to deny the justice of the American Revolution.