THE LAW OF QUO WARRANTO. CHAPTER XIII. OF THE ORIGIN AND NATURE OF THE JURISDICTION IN QUO WARRANTO. $591. Information in the nature of a quo warranto defined. 592. The common law writ of quo warranto. 593. Ancient origin of the writ. 594. The statute of Gloucester, 6 Edward I. 595. Causes leading to the passage of the statute. 596. Effect of the statute; not wholly satisfactory. 597. Statute of 18 Edward I. 598. These statutes not the origin of writs of quo warranto. 599. Disuse of ancient writ on abolition of justices in eyre. 600. Causes for disuse of the former remedy. 601. Growth of the jurisdiction by information in England; its abuse; case of the city of London. 602. Information a prerogative remedy before statute of Anne; purpose and effect of that statute. 603. The original writ a civil remedy; the information formerly a criminal, now a civil remedy. 604. The information does not create rights; nor does it prescribe duties. 605. Leave to file the information discretionary with the court; circum stances which may be considered. 606. Effect of statute as to discretion; discretion exhausted when information filed. 607. The doctrine in Alabama as to discretion. 608. Two classes of informations in England. 609. Writs of quo warranto and informations confused; object the same. 610. Authorities conflicting as to use of the two terms; held synony mous in Wisconsin. 611. The same doctrine held in Florida. 612. The doctrine in Missouri; original writ still recognized. 613. The distinction observed in Arkansas. 614. Statutory remedy in Pennsylvania. 615. Constitutional jurisdiction not to be taken away by legislation. 616. The courts exercising the jurisdiction. 617. Information does not lie where other remedy exists. 618. Does not lie for official misconduct. 619. Jurisdiction in quo warranto a bar to jurisdiction in equity. 620. Public interest must be shown. 621. Statute of limitations. 622. Statutes to be construed as remedial. 591. The modern information in the nature of a quo warranto may be defined as an information, criminal in form, presented to a court of competent jurisdiction, by the public prosecutor, for the purpose of correcting the usurpation, misuser, or non-user of a public office or corporate franchise. The object of the information, as now employed both in the courts of England and America, is substantially the same as that of the ancient writ of quo warranto, and though still retaining its criminal form, it has long since come to be regarded as, in substance, a civil proceeding, instituted by the public prosecutor, upon the relation of private citizens, for the determination of purely civil rights. The use of the quo warranto information having entirely superseded the original writ in England, as well as in most of the states of this country, and the objects to be attained by the modern remedy being identical with those secured by the ancient writ, a brief sketch of the functions of the former remedy and of its growth, development, and decline, is necessary to a proper understanding of the remedy which has taken its place. 592. The ancient writ of quo warranto was a high prerogative writ, in the nature of a writ of right for the king, against one who usurped or claimed any office, franchise or liberty of the crown, to inquire by what authority he supported his claim, in order to determine the right. It was also granted as a corrective of the mis-user, or non-user of a franchise, and commanded the respondent to show by what right, "quo warranto,” he exer cised the franchise, having never had any grant of it, or having forfeited it by neglect or abuse. Being an original writ, it issued out of chancery, and was directed to the sheriff, commanding him to summon the respondent to appear before the king's justices at Westminster. Afterwards, by virtue of the statutes of quo warranto,2 the writ was made returnable before the king's justices in eyre, and the respondent was commanded to appear before the king or these justices when they should. come into the county, to show by what warrant the office or franchise in question was exercised. The justices in eyre having been displaced by the judges on the several circuits, the proceedings were again remanded to the king's justices at Westminster, and the original writ gradually fell into disuse.3 $593. The origin of the writ may be traced to a very early date in the history of the common law. The earliest case upon record is said to have been in the ninth year of Richard I., A. D. 1198, and was against the incumbent of a church, calling upon him to show quo warranto he held the church.4 It was frequently employed during the feudal period, and especially in the reign of Edward I., to strengthen the power of the crown at the expense of the barons. Indeed, to such an extent had the encroachments of the crown been carried, that, prior to the statutes of quo warranto, the king had been accustomed to send commissions over the kingdom to inquire into the title to all franchises, quo jure et quove nomine illi retinerent, and the franchises being grants from the crown, if no sufficient authority could be shown for their exercise, they were seized into the king's hands, often without any judicial process. 5 These encroachments of the royal prerogative having been limited and checked by statute, resort was then 13 Black. Com. 262. And see Commonwealth v. Small, 26 Pa. St. 31; State v. Ashley, 1 Ark. 279; Com. Dig. Quo Warranto (A). In the code of practice of Louisiana, article 828, the writ of quo warranto as used in that state is defined as an "order of which the object is to prevent a usurpation." 26 Edw. I. ch. 2; 18 Edw. I. st. 2. See Appendix D, E, post. See 3 Black. Com. 262; State v. Stewart, 32 Mo. 279. See opinion of Lord Chief Jus tice TINDAL, in Darley v. The Queen, 12 Cl. & Fin. 520. 5 See 2 Inst. 280. |