(dissenting). — I feel impelled to disagree with much of the reasoning and the conclusion of the ma*508jority in this' causa As stated in the opinion, it is an information in the nature of quo warranto, by the state, on the relation of the attorney general, showing that the defendant corporation is exercising rights and franchises in- the city of Seattle without right or authority. The portion of the defendant’s answer deemed material and decisive is the following:
“This defendant, further' answering said information, alleges and charges that- the matters therein set forth and complained of are not, nor is any one of said matters,the concern of the state of Washington, nor is said state or its attorney general in any wise interested in said matters, or any thereof, and that all said matters, and the subject-matter of the said information, are matters in difference only between said city of Seattle and this defendant, and in which said city of Seattle solely is concerned or interested adversely to this defendant.”
The majority considers the above paragraph as having the effect before this court of a general demurrer to the information. I do not understand that such a general demurrer, if this can be so considered, properly raises the question of the legal capacity of the plaintiff to maintain the action. The substance of the paragraph is evidently directed against the right of the state to maintain this action. It is alleged that the state is not concerned. If I apprehend the nature of an information in quo warrankt, the state is always concerned when any person attempts to exercise any public office or franchise within the state, or to claim any right or privilege under public authority. The origin of the information and the name of the writ indicate its essential purpose, and its continued recognition and use in legislative acts and the decisions of our courts make it the appropriate remedy for the unwarranted usurpation or exercise of any public fran*509ehise, and the essential features of procedure seem to have been always simple and in substance the same in common-law courts. Such an information, when brought by the state or sovereign authority, questions the right of the person or corporation to exercise the franchise in question, and the answer always required from the respondent is the showing of its authority. I therefore think the issues were few and simply presented to the court in this cause. The information charged that defendant was exercising a public franchise in the city of Seattle, and that such franchise was without authority of law. It was, then, incumbent upon the defendant to show its right under the authority of the state. I say “of the state,” because any franchise it might possess from the city of Seattle is under the paramount authority of the state. Thus, if it were shown that the franchise exercised by the defendant was properly granted by the city of Seattle, under delegated authority from the state, the justification would be complete As I view it, there is no force in the suggestion that the city of Seattle may control its streets, ■ alleys, and public places, and prevent any unauthorized use of its streets. This is beside the question, which is an inquiry into the alleged usurpation of rights and privileges which can be granted by the state alone, and with which usurpation the state is at any and all times concerned. It would seem, from the mention of the proceeding in the constitution without definition, that we must resort to the common law and authorities construing that law to understand its nature, and this is continually done. As an illustration, in State ex rel. Mullen v. Doherty, 16 Wash. 382 (47 Pac. 958, 58 Am. St. Rep. 39), we were required to determine the right to a jury trial in quo warranto, and very obviously referred to the common-law *510rights of the parties in such proceedings when our constitution was adopted.
I concur in the view that the statute may regulate the procedure, and think it has directed it in this particular case; but I do not think the legislature has said that it was not within the duties of the attorney general, who is constitutionally a part of the executive department, and the chief law officer of the state, to use the name of the state in a proceeding to inquire into the usurpation of a public franchise. It is true, I may be impressed unduly by the almost unvarying customary duties imposed on the attorney general under the distribution of powers in systems similar to ours; but upon the same provisions of the constitution and statutes mentioned in the opinion of the majority I arrive at a different conclusion as to the powers and duties of the attorney general. I think his duties have not all been defined by statute. The governor of the state is required to see that the laws are faithfully executed. The attorney general is the authorized adviser of the governor. I think he may surely, at the instance of the governor, institute such or any proceedings that may be required for the enforcement of the laws. It would be difficult to have defined the specific procedure which would include or cover all cases required, and I do not think, as against a general objection, he should be required to show the specific authority of the executive. I express no view upon the merits of the case, but think this court should hear and determine the controversy.