The information, however, will lie against one who claims an exclusive franchise or privilege of a valuable nature, and affecting the public, such for example as the privilege of operating a ferry over a river, although the mere fact of taking money from passengers is not of itself conclusive evidence of setting up or asserting an exclusive right.1 § 621. The information in the nature of a quo warranto being in effect a civil remedy, though criminal in form, it is held that a statute of limitations barring proceedings upon the prosecution of indictments or informations under any penal law, is not applicable to this form of remedy, and it is not barred by such a statute.2 And in the absence of any statutory period of limitation, it is held in this country that the attorney general may file the information in behalf of the people at any time, and that lapse of time constitutes no bar to the proceeding, in conformity with the maxim nullum tempus occurrit regi.3 §622. Where the remedy by information in the nature of a quo warranto has been regulated by legislative enactments, these enactments are regarded by the courts as in the nature of remedial statutes, to which a strict construction is not to be applied. In such cases the usual rules of construction of remedial statutes are held applicable, and the courts will so construe them as to promote and render effective the remedy sought. in many cases growing out of these grants, especially where corporations are concerned, as by the statute of 9 Anne, ch. 20, and in which the public have an interest. In 1 Strange R. (The King o. Sir William Louther,) it was held that an information of this kind did not lie in the case of private rights, where no franchise of the crown has been invaded. If this is so, if in England a privilege existing in a subject, which the king alone could grant, constitutes it a franchise, in this country, under our institutions, a privilege or immunity of a public CHAPTER XIV. OF QUO WARRANTO AGAINST PUBLIC OFFICERS. § 623. Information generally used in England against municipal corporations; in this country against public officers. 624. Power derived from the people in the United States. 625. Office defined; jurisdiction extended to all public officers; extended to creation of new office. 626. Nature of offices for which the information will lie; three tests applied. 627. Actual user of office must be shown. 628. Judicial discretion; information refused for petty office. 629. Burden of showing title rests on respondent. 630. Degree of interest required of relator. 631. Effect of acquiescence and laches. 632. Distinction between office and employment. 633. Effect of expiration of term, or resignation of office. 634. The information lies against governor of a state; presumptions indulged. 635. Judicial offices. 636. Jurisdiction not exercised to restrain officer from acting. 637. Military offices in the states. 638. Return of canvassers not conclusive as to election. 639. The doctrine recognized in New York; the rule in Michigan. 640. In Alabama, information only lies for ineligibility to office. 641. Remedy in quo warranto a bar to an injunction. 642. Rule where rights of claimant are being already adjudicated. 643. Misdemeanor in office; change of residence of officer. 644. Information will not lie where judgment of ouster can not be rendered. 645. The jurisdiction not exercised where mandamus is the appropriate remedy. 646. Effect of acquiescence in irregular election. § 623. The information in the nature of a quo warranto, as used in England, has been generally employed as a corrective of the usurpation of municipal offices and franchises, and the reports of that country afford more frequent instances of its application to municipal affairs than for any other purpose. In this country, however, the jurisdiction has been most frequently exercised for the purpose of determining disputed questions of title to public office, and for deciding upon the proper person entitled to hold the office and exercise its functions. And in the United States the remedy is now universally applied for this purpose, and the principles governing the exercise of the jurisdiction in this class of cases are, for the most part, clearly and definitely fixed by an established course of judicial decisions. § 624. Since, under the American system, all power emanates from the people, who constitute the sovereignty, the right to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise, is regarded as inherent in the people in the right of their sovereignty. And the title to office being derived from the will of the people, through the agency of the ballot, they are necessarily vested with a right of enforcing their expressed will, by excluding usurpers from public offices. Nor is this right in any manner impaired by statutes, granting to electors, in their private capacity as citizens, the right to contest the election of any person assuming to exercise the functions of an office. Such statutes may have the effect of sharing the right with the elector, but they do not take away the right from the people in their sovereign capacity.1 'People v. Holden, 28 Cal. 123. Say the court, SANDERSON, C. J.: "It is first claimed by the appellant that the district court had no jurisdiction in the premises, and that the only remedy in cases like the present is under the statute which prescribes the mode and manner of contesting elections. Wood's Digest, p. 380, sec. 51. No proposition could be more untenable. It is true that the act providing the mode of contesting elections confers upon any elector of the proper county the right to contest, at his option, the election of any person who has been declared duly elected to a public office, to be exercised in and for such county. But this grant of power to the elector can in no way impair the right of the people, in their sovereign capacity, to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise, and to remove him therefrom if it be made to appear that he is a usurper having no legal title thereto. The two remedies are distinct, the one belonging to the elector in § 625. An office, such as to properly come within the legitimate scope of a quo warranto information may be defined as a public position, to which a portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, and which is exercised for the benefit of the public.1 And in the exercise of the jurisdiction under discussion it will be found to extend to and cover a great variety of offices of a public nature, both elective and appointive, and whose functions partake of an executive, ministerial, legislative, or judicial character. Nor is the use of the information limited to cases of the usurpation of an existing office or franchise, but it may be extended also to the setting up of a new office without authority of law. 2 $626. It seems to have been the earlier doctrine in England, that a quo warranto information would not lie for any office, unless there had been a direct usurpation upon the crown, and doubts were at one time entertained as to whether the jurisdiction could be exercised for any office not derived immediately from the crown, by charter or express grant. The rule, however, is now well established by the highest judicial tribunal in that country, that the information in the nature of a quo warranto will lie for usurping any office, whether created by charter alone, or by act of parliament, provided it be an office his individual capacity as a power granted, and the other to the people in the right of their sovereignty. Title to office comes from the will of the people as expressed through the ballot box, and they have a prerogative right to enforce their will when it has been so expressed, by excluding usurpers and putting in power such as have been chosen by themselves. To that end they have authorized an action to be brought in the name of the attorney general, either upon his own suggestion or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state. It matters not upon what number of individual persons a right analogous in its results when exercised may have been bestowed, for the power in question none the less remains in the people in their sovereign capacity. It has been shared with the elector, but not parted with alto gether. Substantially the same point was made in the case of The People v. Jones, 20 Cal. 50, without success." See United States v. Lockwood, 1 Pinney's Wis. 359. Rex v. Boyles, Stra. 836. of a substantive, public nature, and not merely the function or employment of an agent or servant, terminable at the will of others. Thus, the functions of a city treasurer, entrusted with the custody of the public funds, are of such a nature as to render the office subject to proceedings upon a quo warranto information, although it is created, not by charter from the crown, but by act of parliament, and although the incumbent is appointed by certain magistrates, though not removable at their pleasure.1 And the three tests to be applied in deter was, 'Darley v. The Queen, 12 Cl. & Fin. 520, the leading English case. This was a writ of error in the house of lords, on a judgment in the exchequer chamber in Ireland, affirming a judgment of the queens bench there, in the case of an information in the nature of a quo warranto against the incumbent of the office of treasurer of the county of the city of Dublin. The principal question in the case whether the information would lie for such an office, it being created by parliament and not by charter from the crown. Lord Chief Justice TINDAL, for the judges, after an exhaustive review of the authorities, says: "After the consideration of all the cases and dicta on this subject, the result appears to be, that this proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by charter alone, or by the crown, with the consent of parlia ment, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others, for, with respect to such an employment, the court certainly will not interfere, and the information will not properly lie. The case of the registrar of the Bedford Level, The King v. Corporation of Bedford Level, 6 East, 356, and that of a county treasurer, who is the mere servant of the justices in England, The King . Justices of Herefordshire, 1 Chit. 700, are instances of this latter sort. There are then only two questions in respect to this office: Was it public? and was the treasurer a mere servant of the Dublín magistrates? The functions of the treasurer were clearly of a public nature; he was to applot the assessment, receive and hold the money for a time, keep it subject to his order on the bank, pay the expense of public prosecutions, and pay other public moneys. It is clearly, therefore, of a public nature, and it is equally clear that though appointed by the magis trates, he is not removable at their pleasure, and must, we think, be treated not as their servant, but as an independent officer. If the crown had established this office with precisely the same functions, the person filling it being removable in the same way as an officer of a corporation created by charter, there could be no doubt that an information would lie, and the circumstance that the crown has enacted that there should be such an office, with |