Buggeln v. Doe

THE COURT. We think the statute authorizing an action in the nature of quo warranto does not make it mandatory upon the district attorney to institute such action, unless he has reason to believe that an office or franchise is being usurped, intruded into, or unlawfully held or exercised. It is, however, his duty to bring such proceedings when facts are laid before him from which he can reasonably conclude that such franchise is being usurped. If, on such showing, he fails to institute such proceedings, his action can be reviewed upon an application for mandamus; and where, upon such application, it appears to the court that such a showing has been made to the district attorney, from which he could reason [342] ably conclude that such franchise had been usurped, a writ of mandamus will issue to compel the institution by such district attorney of a proper proceeding in the nature of quo warranto. The demurrer to the petition for the writ of mandamus raises the question whether such petition shows that facts were laid before the district attorney from which he could have reason to believe that the franchise in question had been usurped. We do not think the petition sufficiently shows these facts. It is not a question whether such petition sufficiently shows that such franchise has been usurped, but whether such facts were laid before the district attorney at the time he refused to bring the action in quo warranto. The petition before us shows that all that was presented to the district attorney was a verified complaint to be filed by the district attorney in the proposed quo warranto action. This complaint, while perhaps sufficient as a pleading in such action, which we do not pass upon, did not contain allegations sufficient to show the district attorney that the franchise was being usurped. We cannot say that from such complaint the district attorney had reason to believe that the franchise was being usurped, and should therefore have instituted the action in quo warranto. The demurrer to the petition will be sustained, with leave to the petitioner to amend the petition, or to bring such further proceedings as he may be advised.