when the Act of 1876 was passed, and of course the legislature, in passing that act, must have intended that the court should have, and also should, in proper cases, exercise jurisdiction by quo warranto, notwithstanding the provisions of those chapters. As between the remedy in this court by quo warranto and that by action in the district. court, it is for the attorney-general, to whom the interests of the State in such cases are intrusted, to determine which he will pursue."1 § 221. Who May File an Information.-The misuse or the non-use of its franchise by a corporation is an offense against the public. Theoretically, at least, a franchise is granted as a public benefit. In accepting a franchise a corporation assumes certain public obligations, and it forfeits its franchise only as these obligations are not discharged. The public there is the party to bring a suit for the forfeiture of a franchise, and the public can act in such a case only through the attorney-general. A private citizen will not have leave to file an information unless he has some special ground of complaint. In order to obtain such permission he must have some cause of complaint that is not common to other citizens similarly situated. But when individuals and not the public are affected by the abuse of a franchise, a private person may obtain leave of the court to file an information. The court has power to grant or refuse such a motion in the case of a private citizen, but the attorney-general or a prosecuting attorney may institute quo warranto proceedings, virtute officii, and without the permission of the court.2 In some of the States there are 1 State v. St. Paul & Sioux City J. L. 515; Patterson v. Hubbs, 65 Ry. Co., 35 Minn. 222. N. Car. 119; Wright v. Allen, 2 Tex. 158; State v. Schneirle, 5 Rich. 299; State v. Dehesseline, 1 McCord, 52; Cleary v. Dehesseline, 1 McCord, 35; People v. Dernille, 15 Mich. 164; State v. Haumer, 42 N. J. L. 435; State v. Jenkins, 25 Mo. 484; Churchill v. Walker, 68 Ga. 681; Barnum v. Gilman, 27 Minn. 466; State v. Bieler, 87 Ind. 2 Commonwealth v. Lexington, etc. Turnpike, 6 B. Mon. 397; Commonwealth v. Union Ins. Co., 5 Mass. 230; Houston V. Neuse River, etc. Co., 8 Jones, 476; Commonwealth v. Burrell, 7 Pa. St. 34; Harrison v. Greaves, 59 Miss. 453; State v. McConnell, 3 Lea, 332; Gibbs v. Somers' Point, 49 N. statutes authorizing any person who has an interest in the corporation to request the attorney-general or other prosecuting officer to institute proceedings, and in case of his re 320; State v. London, 91 Ind. 351; Miller v. Palermo, 12 Kan. 14; Demarest v. Wickham, 63 N. Y. 320; Robinson v. Jones, 14 Fla. 256; State v. Stein, 13 Neb. 529; State v. Tipton, 109 Ind. 73; Commonwealth v. McCarter. 98 Pa. St. 604. "In England, the attorneygeneral could file quo warranto and other informations at his discretion. But in practice he seldom did so except where the prerogatives of the crown were specially concerned. Where the interests of individuals were intermingled with those of the crown, the master of the crown office in Kings' Bench was the usual officer to exhibit informations. In the exercise of this function he stood in a relation to individuals similar to that of the attorney-general to the crown. Cole on Informations, 110; Goddard v. Smithett, 3 Gray, 116. But in 1693, Statute of 4 and 5, Wand., M., chap. 18, relating to trespasses and batteries and other misdemeanors, was passed, for the purpose, as Mr. Justice Wilmot says, in Rex v. Marsdon, 3 Burr. 1817: To prevent the master of the crown office from vexing and oppressing the subject, or without sufficient ground and foundation; so that the act was made to check and control the power of the master of the crown office; not to give him a right to exercise a power which he never exercised before; quite the contrary.' After this act, the master of the crown office could not file an information without leave. This statute has been shown to govern quo warranto informations by the master of the crown office, the filing of which by that officer was not introduced but only regulated by the statute of 9 Anne. Cole on Informations, 126. This act required the relator's name to be mentioned in the information, and this, and the previous act of W. & M. requiring the person at whose suggestion the suit had been instituted, to give an undertaking for costs, should prosecution fail, gave rise to the practice of filing quo warranto informations, entitled on the relation of private persons, the relator being altogether the creature of statute. Ang. & Ames on Corp. § 733; Cole on Informations, 127. But an information against a corporation as a body, to annul its corporate existence, could not be filed by the master of the crown office. Such informations were filed by the attorney-general; and leave was not required,—he was the sole judge of the propriety of filing the information. The law requiring leave of the court before an information could be filed, applied only to the master of the crown office. Rex v. Carmarthen, 2 Burr. 869; Murphy v. Farmers' Bank, 20 Pa. St. 415; Commonwealth v. Turnpike Co., 6 B. Mon. 397. With us, the filing of quo warranto information, the several district attorneys possess the powers as well as those usually exercised by the attorney-general, as by the master of the crown office; but the statute preserves, with few exceptions, the distinction between actions by them, acting ex officio in the former capacity, and ex relatione in the Attorney-General v. Railroad Co., 9 Vroom. 282; The State v. Stewart, 32 Mo. 379. Our statute limits the power of the district attorney, acting ex officio, in requiring him to get leave. But when leave has been granted, the discretionary power of the court has been expended. The State v. Brown, 5 R. I. 6. The district attorney is the law officer of the State, within the limits of his district, with the powers, in the absence of statutory regulation, of the attorney-general at common law. Constitution of Oregon, art. 7, § 17. Therefore, when, as in the case before us, the district attorney files a quo warronto information in a distinctly State action, he has as much the sole control over it as the attorneygeneral would have in a like case at common law. A relator cannot be a party to the proceeding,—is a mere stranger,-and if his name is put in the information, it is surplusage. Rex v. Williams, 1 Burr. 408; The People v. The Trustees of Geneva College, 5 Wend. 219. The reason is plain the State, out of its sovereign power, has created the corporation for the purposes declared in its charter, and the same power must preside at its dissolution. The State may waive the forfeiture of the charter, and its power to do so, acting through its attorney, cannot be controlled by the court. State v. McConnell, 3 Lea (Tenn.), 339; Commonwealth v. Union Insurance Co., 5 Mass. 232; The People v. AttorneyGeneral, 22 Barb. 117; The People v. Tobacco Co., 42 How. Pr. 162; The People v. Fairchild, 8 Hun, 334; s. C., 67 N. Y. 334." State v. Douglas Co. Road Co., 10 Ore. 198, 200. The attorney-general has the right, in the name and behalf of the commonwealth, at his own discretion, to file an in "There is formation against one usurping a public office, the court has no authority to grant or to withhold leave to file it, and the mention of relators in the information is mere surplusage, which does not affect the validity of the information, or the form of the judgment to be rendered thereon. Commonwealth v. Allen, 128 Mass. 308. no doubt about the jurisdiction of the circuit court. It is an information filed by the prosecuting attorney ex officio. Informations filed by the attorney-general or prosecuting attorney, ex officio, may be filed without leave, as a matter of course. Information by either officer, at the relation of an individual, must be filed by leave of court. State ex rel. Stewart v. Mcllhany, 32 Mo. 382; State ex rel. v. Hequembourg, 38 Mo. 535; State ex rel. v. Vail, 53 Mo. 97; State ex rel. v. Townley, 56 Mo. 107." State v. Boyd, 84 Mo. 198, 201. "It was objected on behalf of the defendants that they should not be put to answer this information, because it was filed without leave of the court. The objection, however, is not well taken. When facts exist which, in the opinion of the attorney-general, call for a quo warranto information, he has the right to present it, without leave asked of any one. In that respect he represents the sovereignty, whose attorney he is. Such a power existed unquestionably at common law, and neither the statute of 9 Anne, nor our own statute, in any way abridged it. Before 9 Anne quo warranto informations were filed either by the attorney-general or solicitor-general ex officio, or by an officer of the court under the direction of the court, at the instance of the party concerned. Such officer, in fusal such person may act directly or in person.1 In Colorado it has been held that a complaint filed by a private citizen for the dissolution of a corporation under the code provisions relating to "actions for the usurpation of an office or franchise," alleging that the district attorney refused the to bring suit, but stating no other or different interest of the relator in the result than that common to every citizen, is insufficient to support the action, and a demurrer thereto for such cause may be properly sustained. The general rule is that prosecutions for wrongs done to the public must be instituted by the State, through its properly authorized agents, while an individual can sue only for injuries peculiarly affecting himself." In Illinois it has been held that if a public wrong is done by the abuse of a franchise, and no private injury appears, a proceeding by quo warranto must be by the public prosecutor or other authorized agent of the State, and a private citizen cannot in such case have the aid of this extraordinary remedy. But in cases affecting only private rights, and which merely affect the administration of corporate functions, and not the existence of the corporation, the court may interpose upon proper showing. The attorney-general or State's attorney, if the information affects public rights only, may act at the instance of any individual who may furnish him the requisite proofs to authorize him to act, whom he may name relator, but he must act in his official capacity, under a sense of official duty, and not merely lend his name for the use of a the Kings' Bench, was the master of the crown office. The statute of 9 Anne merely regulated the practice in some cases of this latter class, requiring the parties concerned to be named as relators and to become responsible for costs, etc. Our statute substitutes the attorney-general for this master of the crown office and extends the range of the act; but in such case the attorney-general is only nominally a party,-a mere officer of the court, subject to its control; he is not there as attorney-general, exercising in the cause that power which such officer had at common law, and which he still wields when he appears ex officio. Attorney-General v. Delaware, etc. R. R. Co., 38 N. J. L. 282, 286. 1 People v. Grand River Bridge Co., 13 Colo. 11; s. C., 21 Pac. Rep. 898. People v. Grand River Bridge Co., 13 Colo. 11; s. c., 21 Pac. Rep. 898. private party. In the case of Murphy v. The Farmers' Bank of Schuylkill County of Pennsylvania, the court said: "The authorities show that they do not give a private relator the writ of quo warranto in a case of public prerogative involving no individnal grievance. On this point the authorities are full, direct and harmonious. The usurpation of an office, established by the constitution, under color of an executive appointment, and the abuse of a public franchise under color of a legislative grant, are public wrongs, and not private injuries, and the remedy by quo warranto, in this court at least, must be on the suggestion of the attorney-general, or some authorized agent of the commonwealth. For the authorities I refer myself to those cited in the argument of, the respondent's counsel. They establish this as the uniform construction in questions involving the existence of a corporation. In questions involving merely the administration of corporate functions, or duties which touch only individual rights, such as the election of officers, admission of a corporate officer or member, and the like, the writ may issue at the suit of the attorney-general, or of any person or persons desiring to prosecute the same. These are general views which harmonize with the doctrine of the cases, and, therefore, whilst I recognize the right of any relator to have a quo warranto in the supreme court who is desirous to prosecute the same to redress any private grievance that falls within that remedy, I deny the right of any party except the attorney-general or other officer of the commonwealth to sue for it to dissolve a corporation."2 § 222. Pleadings and Averments.-A proceeding by information in quo warranto, though it still retains its original form as a criminal process, is now regarded in nearly all the States as a civil remedy for the determination of civil rights. No uniform system has been adopted, but in ordinary cases it is not necessary for the relator to allege 1 The People v. North Chicago Railway Co., 88 Ill. 537. 2 Murphy v. Farmers' Bank, 20 Pa. St. 415, 418. |