State v. Paterson & Hamburg Turnpike Co.

Carpenter, J. delivered the opinion of the court. This is a private application in behalf of relators, and not a proceeding instituted by the Attorney General. Private individuals ask the permission of the court to use the name of the State and the process of the law. If the Attorney General on behalf of the State was about to institute this proceeding, he need not ask the permission of this court for that purpose. The institution of proceedings of this character at the instance of relators, under the leave of the court, is authorized by statute, and only by statute. No instance, said Lord Mansfield, in R. v. Marsden (1 W. Bl. 580), has been produced of informations in nature of quo warranto before the statute of 9 Anne, unless filed by the Attorney General. The courts at common law and in cases not within the statute, have no authority to direct such information and leave the matter to the discretion of the Attorney General. Ibbotson’s Case, cas. temp. Hardw. 261; Sir Wm. Lowther’s Case, 2 Lord Raym. 1409. Our act (Rev. L. 206) is copied substantially from the statute of 9 Anne c. 20. The English statute provides for the case when any persons shall usurp &c. any corporate office or franchise; the language of our statute is more extensive, and applies to the intrusion into, or unlawful holding of any office or franchise within this state. In regard to the present question, we apprehend the same construction applies to both statutes. An information for the purpose of dissolving a corporation, or [11] seizing its franchises, cannot be prosecuted in the name of the State, at the relation of private persons, though leave be asked of the Court. Such proceeding can be instituted only by the Attorney General on the part of the State, either merely ex officio, or under special direction from the proper authority. The statute of 9 Anne extends only to individuals usurping offices or franchises in a corporation, and not to the corporation as a body. Com. v. Union Ins. Co. 5 Mass. 230; Com. v. Fowler, 10 Ib. 295; R. v. Carmarthen, 2 Bur. 869, 1 W. Bl. 187; R. v. Ogden 10 B. and C. 230; R. v. White 5 Ad. & Ell. 613; Bac. Abr. tit. “ Information.” (D.) This distinction is well settled, and is a safe and proper rule. The State, said C. J. Parsons in a case cited, may waive any breaches of any condition express or implied, on which the corporation was created; and the court cannot (or ought not) to give judgment for the seizin of the franchises of any corporation unless the State itself be a party in interest in the suit,Kind thus assents to the judgment. An examination of the affidavits produced is unnecessary, as this rule is not moved for by the authority of the State.