It appears that the Shinshiu Kyokai Mission of Hawaii is a local corporation founded for the purpose of promoting "religious work and worship based upon teaching and doctrines of the Shinshiu Sect of Buddhism," that a controversy developed as to who were its proper officers and that, to settle the difficulty, a quo warranto proceeding was instituted by six members against three others. In that proceeding a master was appointed to ascertain whether or not an election held upon July 28, 1934, was regular and legal. Following his adverse report, the circuit judge, in accordance with the expression in section 4262, R.L. 1935, "and shall direct the corporation to proceed to a new appointment," and the interpretation placed upon that expression by this court in Canairo v. Serrao, 11 Haw. 22, and in Chinese Society v. Yee Yap, 24 Haw. 377, 404, 473, appointed Ed Towse, respondent herein, as special commissioner "to call a meeting at the Mission and elect a chief priest and a standing committee of sixty (60) to serve until the next annual meeting of the Mission." To prevent the *Page 912 commissioner from carrying out the instructions given to him by the circuit judge for whom he was acting, a bill for an injunction against the commissioner was filed by six members of the corporation not parties to the quo warranto proceeding. The commissioner was temporarily enjoined. Identical demurrers to the bill by the respondent Towse and by intervening respondents were sustained upon the ground that the petitioners had "an adequate remedy at law." The chief assignment of error now presented for this court's consideration is that based upon the circuit judge's final decree of dismissal of October 27, 1937, made pursuant to his decision sustaining the demurrers.In limine the question arises as to whether or not one of the petitioners for a writ of error, Masao Nakakuni, is entitled to maintain the proceeding now before this court.
Section 3563, concerning writs of error, provides, inter alia: "But no order, judgment or sentence shall be reversed or modified unless the court is of the opinion that error was committed which injuriously affected the substantial rights of the plaintiff in error."
Paragraph X of the bill for an injunction contains, toward the end of the paragraph, the following: "That none of the petitioners except Masao Nakakuni are permitted to vote under the rulings of either the Master or respondents."
On the face of things, therefore, it appears that Masao Nakakuni was not in a position to complain of the respondent Towse and that his substantial rights were not injuriously affected by the decree of dismissal of the circuit judge. He is not entitled to press this proceeding.
The demurrers to the bill were sustainable, not only for the particular reason given by the circuit judge, that there was an adequate remedy at law, but also upon other grounds of the demurrers, the broad claims, (a) that the bill did not set forth facts sufficient to entitle the petitioners *Page 913 therein to the relief sought and, (b) that the petitioners therein were not entitled to maintain the cause against the defendant therein.
The general grounds of the demurrers, although not in express terms passed upon by the circuit judge, will here be considered first.
The allegation in paragraph XIX of the bill for an injunction that the proceeding would "avoid a multiplicity of suits and a circuity of action" and afforded "the only means by which petitioners can prevent an irreparable injury," is a conclusion not supported by specific allegations. "The allegations of irreparable injury to the petitioner and impecuniosity of the respondents, as shown in the recital hereinabove set forth, are general allegations and are not only not supported by specific averments but are in conflict with the facts disclosed by the bill." Brown v. Kaahanui, 29 Haw. 804, 811.
Even were the conclusion properly supported, it does not follow that equity always will assume jurisdiction to avoid a so-called multiplicity of suits at law.
"Equity will not take jurisdiction on this ground [multiplicity of suits] where there is no necessity for it, as where the legal rules as to joinder of parties and joinder or consolidation of actions permit adequate relief in a single action at law, or where for any other reason there is no necessity for a multiplicity of suits to obtain full relief at law, or where a multiplicity of suits is not threatened, or where by taking jurisdiction a multiplicity of suits would not be avoided." 21 C.J. 73.
"The mere fact that there is a multitude of actions does not in itself constitute multiplicity of actions in such sense that equity will enjoin them." 32 C.J. 89.
"Multiplicity is not synonymous with multitude, and there must be some other ground of jurisdiction besides mere number. The circumstances must be such that the *Page 914 remedy at law will be regarded as inadequate." The People v. Chiropractors' Ass'n., 302 Ill. 228, 231, 134 N.E. 4.
"The single fact that a multiplicity of suits may be prevented by this assumption of jurisdiction is not in all cases enough to sustain it. It might be that the exercise of equitable jurisdiction on this ground, while preventing a formal multiplicity of suits, would nevertheless be attended with more and deeper inconvenience to the defendants than would be compensated for by the convenience of a single plaintiff, and where the case is not covered by any controlling precedent the inconvenience might constitute good ground for denying jurisdiction." Hale v. Allinson, 188 U.S. 56, 77, 47 L.ed. 380, 392.
"Also, although there is some authority to the contrary; in order to make multiplicity of suits a ground for interposition of a court of equity, more than one suit must have been commenced, or at least about to be begun; and an injunction will not be granted where no action has been brought." 32 C.J. 89.
As subsequently explained in connection with the law in Hawaii, whatever it may be elsewhere, as to quo warranto, a multiplicity of suits to determine the status of the corporation officers of the Shinshiu Kyokai Mission of Hawaii is something extremely unlikely to occur and apparently is stated as impending for no other reason than to invoke the interposition of a court of equity. An election of officers once held under the supervision of a court commissioner appointed for that purpose in all probability would be conclusive.
Further, as to the bill being lacking in equitable features, it fails to show any effort upon the part of the petitioners to do equity themselves by making their bill broad enough to include all "necessary" parties, as that adjective is technically used in equity pleading. They would have been doing equity themselves by offering to act for all *Page 915 others similarly situated, and, what certainly should have been done, they should have made the corporation itself a party respondent, it being an absolutely necessary party to any effort to determine the equities sought to be enforced.
While ordinarily a general demurrer for want of equity is insufficient to raise the objection of nonjoinder, that is not so where the bill shows "that the interests of the omitted party are such as to be directly affected by the granting of the relief sought, in which case he is a necessary or indispensable party, for the omission of whom a general demurrer will lie." 21 C.J. 325.
"Necessary or indispensable parties are those without whom the court will not proceed to any decree, even as to the parties before it. This class includes all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Accordingly, persons whose interests will necessarily be affected by any decree that can be rendered are necessary and indispensable parties, and the court will not proceed to a decree without them, while parties whose interests will not be affected by the decree sought, although they may have an interest in the subject matter, are not ordinarily necessary parties, although they may sometimes be proper parties under the general rule, in order to avoid a multiplicity of suits." 21 C.J. 273. (Smythe v. Takara, 26 Haw. 69, 72; Brown v. Kaahanui, supra.)
It has been said in the majority opinion that there is subject to review in this proceeding upon writ of error "only those grounds of demurrer passed upon by the court below" and that the question of nonjoinder of necessary parties in the equity suit is not before this court for determination. In my opinion, it is of more importance to consider *Page 916 what were the grounds of the demurrers than to consider the reasoning of the circuit judge in sustaining the demurrers. In Thayer v. Lidgate, 14 Haw. 544, a demurrer to a bill in equity was based upon two grounds, one good and the other bad. The circuit judge ignored the good ground and sustained the demurrer and dismissed the bill upon the one which was bad. This court affirmed the decree of the circuit judge based upon erroneous reasoning for the reason that there was a good ground of demurrer although the circuit judge had not heeded it.
One ground of the demurrers is "that said Bill of Complaint affirmatively shows that the Petitioners are not * * * entitled to maintain the above entitled cause," and that is so. It is almost unheard of, in equity practice, for members of a corporation to ask to have the corporation's affairs investigated and regulated by a court and yet not make the corporation itself a party. The court of equity whose decree of dismissal is now attacked might well have taken the stand that the petitioners were not entitled to maintain the cause because of the bill's fatal defect, instantly apparent, that a "necessary" and indispensable party had been omitted. The defect was vital and by this court should be so recognized.
Moreover, it hardly conforms with equity practice to seek to enjoin Towse, not as an individual but as an arm, so to speak, of the circuit judge before whom the quo warranto proceeding was and is pending. It was an effort, in effect, to have the equity side of the circuit court place a restriction upon the law side of the same court. That is something quite different from enjoining the private parties in a law action and the propriety of it is at least questionable.
It is unnecessary here to go extensively into the question as to invoking a court of equity to enforce a trust as to the holding of corporation property for religious purposes. *Page 917 It seems that the difficulties of the Shinshiu Kyokai Mission of Hawaii are due entirely to conflicting claims to offices in that corporation and that a final determination in the usual way, that is, in quo warranto, of those claims will afford a remedy which is plain and will be fully adequate and complete in the settlement of those difficulties.
The question of main importance here, apart from the nonjoinder in the equity proceeding of a necessary party, is as to whether or not, upon the face of the bill, there is a plain, adequate and complete remedy at law for the petitioners.
Quo warranto proceedings are sui generis. There is nothing else quite like them. Originally at the old common law they were prosecuted by the attorney general in the name of the sovereign or State. It was the government which was primarily concerned. The statute of Anne provided that in certain cases informations might be filed upon the relation of any person interested, leave of court to do so having been first obtained. The informations were "in the nature of quo warranto." In theory, at least, it was still the State which was chiefly concerned. (23 Am. Eng. Enc. L. [2d ed.] 615.) "The information, with the criminal features thereof discarded, continues to be an available remedy in a number of jurisdictions." 51 C.J. 310.
There further developed, as in Hawaii, statutory proceedings, still in the nature of the original quo warranto and termed "quo warranto," wherein there came to be abandoned much, but not all, of the basic idea that quo warranto is a proceeding in behalf of the government. Under section 4259 it is still the duty of the attorney general to invoke quo warranto in certain cases.
That quo warranto is not to be treated altogether as a merely private proceeding was in effect announced by this court, in 1897, in Canairo v. Serrao, supra, where *Page 918 the court gave special consideration to the words, "and shall direct the corporation to proceed to a new appointment," appearing in what now is section 4262. (The corporation in that case was not a party to the quo warranto proceedings.) It was then held, notwithstanding the fact that the corporation itself was not a party, that "the Circuit Judge had the power to order a new election" (p. 29) and it is a fair inference from that decision that an election once conducted under the auspices of a court commissioner is conclusive upon the rights of every member of the corporation.
That case was followed in 1918 by Chinese Society v. Yee Yap, supra, Chief Justice Coke writing the opinion of the court. This court then said (p. 380): "It cannot be doubted that if the judge in the present case possessed authority `to direct the corporation to proceed to a new appointment' to fill the vacancy existing in the board of trustees he likewise possessed the authority to require an election to be held by the members of the society for that purpose and generally to supervise and govern that election."
When this court then said that the lower court should have its commissioner "supervise and govern that election," it meant, of course, an effective election. It was not contemplated that the lower court, through its commissioner, was to do a futile thing, conduct an election which in a few days possibly would be upset by other proceedings in quo warranto with different parties litigating concerning the corporation officers. In other words, it was practically held that once the lower court takes hold of a quo warranto case involving positions in a corporation, it will fully dispose of the matter however many or few the parties complaining and defending.
Whatever modifications have been made in quo warranto *Page 919 proceedings, from the time of the old writ of right for the king down to such modern practice as is provided in the statutes of Hawaii, "the substance of the remedy remains the same" (51 C.J. 310), "a proceeding to determine the right to the use or exercise of a franchise or office" (51 C.J. 309), with the government, at least in Hawaii where special statutes have been definitely interpreted by the supreme court of the Territory, still interested in seeing that corporations may be made to function through properly elected officers.
"In the absence of statute creating concurrent remedies, quo warranto is the exclusive remedy in cases where it is appropriate. Thus the right to an office or franchise cannot be collaterally attacked, but must be directly attacked, if at all, by proceedings in quo warranto." 23 Am. Eng. Enc. L. (2d ed.) 601.
"Inasmuch as quo warranto or proceedings in the nature of quo warranto, or, in some jurisdictions, mandamus, afford an adequate and generally exclusive remedy in such cases, a court of equity will not usually interfere to try the title to a public office, or an office in a corporation, or to try the validity of a corporate organization, or the validity of corporate acts." 21 C.J. 67.
"Thus, subject to the foregoing limitations, quo warranto, or a proceeding in the nature thereof, is the sole and exclusive remedy and method by which the right and title to a public or corporate office may be tried and determined. * * * In the absence of a valid statute conferring equitable jurisdiction, there is no concurrent remedy in equity when quo warranto is available and affords an adequate remedy." 51 C.J. 313.
It has been urged that the statutory provision that suits in equity, including bills for injunction, shall not be sustained in any case where there is a plain, adequate and *Page 920 complete remedy at law does not exclude the circuit judges from any part of the field of equitable remedies.
In connection with the proposition that equity will not entertain jurisdiction where there is an adequate remedy at law, unless it is shown that there is some feature of the case peculiarly within the province of a court of equity, or unless special jurisdiction has been conferred by statute (21 C.J. 35), there have developed two doctrines: "(1) That the rule is to be taken in a generic sense, as indicating the origin of the jurisdiction and defining generally its grounds and subjects; (2) that it is a constant limit upon the exercise of jurisdiction in the particular case. The former theory is generally adopted. Where the latter or narrower theory prevails the courts in adopting it have generally been influenced by statutes in terms restricting equity powers to cases where there is no adequate remedy at law." 21 C.J. 39.
In Makainai v. Lalakea, 24 Haw. 268, 271, this court, basing its opinion upon the local statutes, said: "The jurisdiction in equity, which the several circuit judges are authorized to exercise, is limited and set forth in our statutes as shown by the following excerpts therefrom:
`In addition to the jurisdiction in equity otherwise conferred, the several circuit judges shall have original and exclusive jurisdiction of every original process whether by bill, writ, petition or otherwise, in which relief in equity is prayed for, except when a different provision is made' (Sec. 2472 R.L. 1915).
`The several circuit judges may hear and determine in equity, all cases hereinafter mentioned, when the parties have no plain, adequate and complete remedy at the common law, that is to say: * * *
`Suits between copartners, joint tenants and tenants in common, and their legal representatives, with authority to appoint receivers of rents and profits, and apportion *Page 921 and distribute the same to the discharge of incumbrances and liens on the estates or among the cotenants. * * * Suits upon accounts when the nature of the account is such that it cannot be conveniently and properly adjusted and settled in an action at law. * * * Cases of fraud. * * * And shall have full equity jurisdiction according to the usage and practice of courts of equity in all other cases where there is not a plain, adequate and complete remedy at law' (Sec. 2473 R.L. 1915).
"The gist of these statutory provisions is that the several circuit judges may exercise their equity jurisdiction when and only when the party has no plain, adequate and complete remedy at law, whether it be a case of fraud or otherwise."
The circuit judge was correct in sustaining the demurrers upon the ground that there was an adequate remedy at law. Also, conformably with Thayer v. Lidgate, supra, this court may well say that the sustaining of the demurrers was likewise warrantable for a reason not mentioned by the circuit judge, but properly presented at the time by the demurrers, that a bill of complaint such as that before him was entitled to scant consideration in a court of equity when the well-established equitable rule as to necessary and indispensable parties had been entirely ignored by those seeking equitable relief.
The decree of dismissal should be affirmed. *Page 922