Green v. St. Albans Trust Co.

The opinion of the court was delivered by Rowell, J. This is a complaint under chapter 74, R. L., for a writ of quo warranto, preferred and prosecuted in the name of the complainants alone, for the purpose of obtaining a judgment of forfeiture of the corporate rights and privileges of the defendant company. At the common law, both scire facias and an information in the nature of a quo warranto were the appropriate remedies to enforce the dissolution of a corporation for cause of forfeiture; but our Legislature early made specific provision in this .behalf by the act of October 23, 1797, entitled, “An act directing the mode of taking forfeitures of grants and charters,” whereby it was provided that “in all cases in which the grantee or grantees shall have done or omitted any act or thing which shall amount to a forfeiture of his, her, or their grant or charter, the mode of process to ascertain the fact and take the forfeiture shall be by writ of scire facias, * * * brought forward and prosecuted in the name of the State, by the attorney of the State, or by any other person who shall think himself injured by the nonperformance of the condition of any such grant or grants,” who should indorse his name on the writ as prosecutor, and give security for costs, and be liable to pay costs if he failed in the suit, and a trial by jury was accorded. St. 1797, c. 49. This provision for a private prosecutor continued in the statute until the revision of 1839, when it was dropped out, and a provision incorporated, making it the duty of the State’s attorney to prosecute on the application of twenty or [344] more freeholders, etc., and the statute has ever since remained substantially as now found in chapter 72, R. L., which defines the word grant as therein used to mean, among other things, “acts of incorporation for any purpose,” provides for what they may be adjudged forfeited, and prescribes that “ the mode of process shall he by writ of scire facias,” returnable, in the case of corporations, to the County Court of the county in which any part of the business of the corporation is done, or, by the terms of the act, should be done; that the writ shall be prosecuted by the State's attorney of the county in which it is returnable, in the name of the State, and that he shall, on the application of twenty or more freeholders of the county, commence such writ and prosecute the same against a corporation, if, in his opinion, the grant of such corporation is forfeited, and the public good requires that it should be adjudged forfeited. The statute also provides that issues of fact shall be tried by jury, and that, notwithstanding a verdict of forfeiture, the grantee may show cause against a judgment of forfeiture, the court adjudging the matter according to equity and good conscience. On the other hand, we had no statute providing for the remedy of gno warranto, except the general statute conferring jurisdiction of the writ on the Supreme Court, till the St. of 1876, which now forms chapter 74, R. L. This act was passed, not to extend the remedy of the writ, but to simplify and expedite the proceedings in cases proper for issuing the writ, which must be determined at common law. We have then this case; , an ancient statute, specially and positively providing a mode of process, procedure, and trial, to obtain an adjudication of forfeiture of corporate franchises and other legislative and governmental grants, and yet a different mode resorted to ; and the question is, Is the statutory mode exclusive? We think it is. The fact that after an experience of more than forty years the Legislature changed the statute so as to take away the [345] right of private persons to prosecute under it, clearly indicates a purpose no longer to allow private persons in any mode to prosecute in such cases, hut to confine the right to the State alone, which is usually the chief party in interest. Indeed, it is scarcely conceivable that the Legislature should prescribe with sucli particularity a mode of process and procedure, to be instituted and prosecuted in the name of the State, according a jury trial, and yet have left it to the option of private persons, in their own names or otherwise, to resort to a different remedy, and that too in a forum in which a jury trial cannot be had. The words of the statute are, “the mode of process shall be by writ of scire facias.” This language is imperative in form and ordinary signification, and ought to be construed as obligatory if such be the intention of the framers of the act as collected from every part of it. It is true, the language is affirmative, and does not necessarily take away the common law remedy of quo ivarranto; but it will have that effect if the apparent intention of the act is that the two rights shall not exist together, as we think it is. It is held that when an act that was before an offense at common law only is made an offense by statute, the common law on the subject is superseded by implication, the same as a statute is impliedly repealed by a subsequent statute that revises its whole subject-matter. Commonwealth v. Cooley, 10 Pick. 37; State v. Boogher, 71 Mo. 631. In Commonwealth v. Carrigues, 28 Pa. St. 9, it was held that a statute, providing that the returns of all municipal elections should be subject to the inquiry and determination of the Court of Common Pleas of the County of Philadelphia upon the complaint of fifteen or more of the qualified voters of the proper ward or division, the court, in judging in the premises, to proceed upon the merits, and determine finally concerning the matter, — was binding on the State, although not named therein, and by necessary implication, excluded the remedy of quo ivarranto. [346] Section 9 of the Banking- Co-partnership Act, 7 Geo. IV. c. 46, px-ovid.es that all actions, suits, etc., to be commenced or ixxstituted by axxy persons against such co-pax-tnership, “shall axid lawfully may” be commenced and prosecuted agaixist oxxe or more of the public officex-s for the time being- of the co-partnership as the nominal defendant for and oxx behalf of the compaxiy. The remedy thus givexi is not ixx terms expressed to be a substitute for the coxnmoxilaw right of action; but from the nature of the case it was held ixx Steward v. Greaves, 10 M. & W. 711, that this must have beexx what the Legislature ixxtended. The evil to be guarded agaixist was, the ixiconvexiience to which creditox-s would be put if they were driven to bring- actions agaixist parties as numerous as those of whom joint-stock banks might and probably would consist. The remedy provided was, the naming of a person who, for the pux-poses of litigation, should represent the company; and the anomalies that would be produced if this right were to co-exist with the previous common-law right of action were so great as to warrant the court in holding that that right must have been intended to be taken away altogether. Equally strong-are the grounds for holding the remedy provided by the Eorfeitui-e of Grants Act to be exclusive. Franchises are special privileges conferred by government upon individuals, and which do not belong to the citizens of the State or country generally of common right. The abuse of a franchise is a public rather than a private injury. Hence it follows, that proceedings having for their object the recovery of a forfeited franchise to the State, ought to be instituted and carried on by a public prosecutor or other authorized representative of the State, and not be left to the control of private pax-ties who have no interest but their own to sub-serve. Such cases are cleax-ly distinguishable from cases involving only the admixiistration of corporate fuxictions, and do not go to the life of the corporation itself. Complaixit dismissed with costs.