Rice v. National Bank of the Commonwealth

Gray, C. J. At common law, private individuals, without the intervention of the attorney general, cannot, either as of right or by leave of court, file an information in the nature of a quo warranta. Groddard v. Smithett, 3 Gray, 116. The statutes give the right to file such an information only to “ any person whose private right or interest has been injured or is put in hazard by the exercise by any private corporation, or persons claiming to be a private corporation, of a franchise or privilege not conferred by law;” and provide that, where an information so filed is sustained, if the attorney general has not intervened, no judgment of forfeiture shall be entered, but only judgment that the corporation, or the persons claiming to be a corporation, be perpetually excluded from the franchise or privilege exercised by them and not conferred by law. Gen. Sts. c. 145, §§ 16, 22. This information seeks to exclude the defendants from exercising the franchise of being a corporation, on the ground that any certificate of corporate existence, or grant of corporate powers, which the persons who undertook to form the corporation obtained, was obtained by fraud. But it shows that those persons complied with all the forms prescribed by the statutes of the Commonwealth for the organization of corporations, and obtained from the secretary of the Commonwealth a certificate under the seal of the Commonwealth, which by the express terms of the general [304] statute of 1870, o. 224, § 11, “ shall have the force and effect of a special charter, and be conclusive evidence of the organization and establishment of such corporation.” It thus appears on the face of the information that the franchise of being a corporation was conferred upon the defendants by law. The defendants having thus once become a legal corporation, their franchise, by the general principles of law, as well as by the provisions of the statute under which the information is filed, could be avoided, annulled, revoked or forfeited only by the Legislature, or at the suit of the Commonwealth or of the attorney general representing the Commonwealth, and not upon the application of private individuals. Gen. Sts. c. 68, § 41. Commonwealth v. Union Ins. Co. 5 Mass. 286. Charles River Bridge v. Warren Bridge, 7 Pick. 344, 371. Folger v. Columbian Ins. Co. 99 Mass. 267, 274. Hastings v. Amherst & Belchertown Railroad, 9 Cush. 596, 599. Goddard v. Smithett, 3 Gray, 117. As this reason is conclusive, it is unnecessary to consider other objections to the maintenance of the information. Exceptions overruled.