(dissenting. In setting forth the reasons for my dissent I deem it advisable to state the facts more fully than they are set forth in the majority opinion.
On the 16th day of March 1914, there was filed in the office of the clerk of the district court of Bernalillo county a petition for leave to file information in the nature of quo warranto. The petition was entitled “In the matter of the petition of the Northwestern Colonization & Improvement Company of Chihuahua for leave to file information in the nature of quo warranto,” and recited:
“Comes now the Northwestern Colonization & Improvement Company of Chihuahua and respectfully petitions the court for leave to file information in the nature of quo warranto, and for grounds of petition gives the court to he informed as follows.”
It then represents that the action is brought by and with the consent of the Honorable Frank W. Clancy, Attorney General of the state of New Mexico; that the Northwestern Colonization & Improvement Company of Chihuahua is a corporation organized under the laws of the territory of New Mexico in 1889, and has since existed as such; that the board of directors and the officers of the corporation are as named therein; that the office of such corporation in the state of New Mexico is in the city o£ Albuquerque, and outside of said state, in the Garfield Building, Cleveland, Ohio, and that there is no other corporation by that name within the state of New Mexico.
The petition then proceeds:
“Your petitioner further represents on information and belief that certain persons, to-wit, Luis Huller, whom petitioner is informed is a citizen of the republic of Mexico, William J. Cox, a citizen of the state of Texas, S. Lindauer, a citizen of Deming, N. M-, S. D. Haskell, a citizen of the state of Illinois, Harvey A. Basham, Thomas Fitzhugh Lee, Geo. W. Johnson and Miguel Grub, citizens of the republic of Mexico, and also one Walter D. Hawk, a citizen of the state of Illniois, all conspiring together’ with one George R. Pierce, since deceased, undertook to act together, and to exercise corporate functions in the name and pretending to he in behalf of the said the Northwestern Colonization & Improvement Company of Chihuahua, and said persons, or some of them, caused to he published a notice pretending to he in behalf of petitioner in a newspaper published in the town of Deming, N. M., attempting to call a meeting of the stockholders of petitioner for the 14th day of December', 1910, and said parties, or some of them, in pursuance to said notice, together with said Walter D. Hawk and Arthur A. Temke, met at a hotel in the town of Deming,, N. M., on said date, and pretending, or some of them pretending, to he stockholders of petitioner, held a meeting and claim to have elected the said persons, except Hawk and Temke, as directors of said petitioner, and said pretended stockholders at said meeting caused minutes of said meeting to be made and afterwards entered in a book as minutes of the said corporation, and so pretending' to be stockholders elected George R. Pierce president, and said Luis Huller secretary of said corporation, ánd passed a resolution authorizing the directors so pretended to have been elected to meet in the city and republic of Mexico for' the purpose of transacting business as a corporation organized under the laws of New Mexico and in the name of your petitioner, and doing other acts in the name of petitioner, and caused to be issued certificate or certificates of stock in the name of petitioner with the name of petitioner engraved thereon, and also caused to be executed certain false statements or certificates appointing Arthur A. Temke the resident agent, upon whom service of summons could be ser'ved whenever process may be issued against petitioner, and caused such certificates to be filed with the state corporation commission of the state of New Mexico at its public office in, the city of Santa Pe, and likewise assuming to exercise corporate powers in the name of petitioner caused to be issued certain false and fraudulent power or powers of attorney to Jeorge Vera Estañol, to Burton W- Wilson, and to Romulo Becerra, purporting to authorize said attorney in fact to appear in certain proceedings pending in the courts of the republic of Mexico and to represent themselves as attorneys to act for and in behalf of petitioner, the Northwestern Colonization & Improvement Company of Chihuahua; that the said Walter D. Hawk pretends to represent, without right and without any valid authority, as attorney at law, the Northwestern Colonization & Improvement Company of Chihuahua, by virtue of alleged authority which he received, ■or pretends to have received, from the said Luis Huller, or from the said other persons at the meeting so held at the town of Deming, N. M., Decomber 14, 1910, or at some other time or place, and has attempted to delegate his said pretended authority to other attorneys at law to act in the 'name of said corporation.”
The petitioner, after setting out the supposed conspiracies, claims, and pretenses of respondents, alleged respondents have usurped said “offices, liberties, privileges, and franchises, and authority” upon said corporation and the state of New Mexico, and have exercised and assumed to exercise them, without being legally authorized so to do, to the great damage and prejudice of said corporation and the state, and concludes with a prayer by the petitioner alone that respondents be required to show cause why leave to file an information in the nature of quo warranto in behalf of said state at the relation of said petitioner should not be granted. The petition was signed by private counsel as attorne.ys for the petitioner.
An order to show cause was issued upon said petition, which with a copy of said petition, was personally served in Luna county, upon the respondent Lindauer and upon Arthur A. Temke, as alleged resident agent of the company, under an order of court dated March 16,1914, directing sendee so to be made, and directing that such service upon Temke should be sufficient service to bring said respondents, acting as a pretended board of directors of said company, except respondent Lindauer, into court.
Upon the return date of said oidor to show cause, a demurrer to the sufficiency of the petition for leave to file the information was filed by S. Lindauer and Arthur A. Temke. This demurrer was overruled, and leave granted to file the information on April 16,1914.
On April 10, 1914, there Avas filed in the clerk's office of said court a letter from Frank W. Clancy, Attorney General, to "Mr. D. J. Cable, Secretary of the Northwestern Colonization fa Improvement Company of Chihuahua,” purporting to give the consent of said Clancy to the bringing of quo warranto proceedings in the name of the state of New Mexico ex rel. the said company against Luis Iluller and nine othei^. Upon April 16, 1914, there Avas filed an information in the nature of quo warranto against the said respondents, substantially in the same form as the petition, except that the same Avas entitled in the name of the state of NeAV Mexico ex rel. the NorthAvestern Colonization & Improvment Company, and usurpations Avere alleged to have been upon the state alone. The Avord "office” was omitted, and the verification Avas made by James E. Garfield, as vice president of the relator.
Thereupon, on the same day, an order or citation entitled in the same form as said information and as a summons, and reciting the filing of said information, issued out of said district court, addressed to the said respondents, and conunanding them under penalty of the law and pain of judgment to appear at 10 o'clock a. m., on June 1, 1914, before said district court, there to answer said information ; AAdiich said order had the seal of said court impressed thereon and Avas signed, “H. F. Raynolds, District Judge, etc.”
An order for service was indorsed on said last-named order, reciting that, as it appears Arthur A. Temke has been appointed by respondents their resident agent for service of process, "it is ordered that service of this summons be served upon said Arthur A. Temke, and shall be service upon the respondents (naming them). Ií. F. Raynolds, District Judge etc.” And service was thereupon had on Temke and Lindauer in Luna county.
In response to such service, the respondents, other than said Lindauer, appearing specially for that purpose, or at least attempting to do so, filed their motions respectively: (1) To quash the return of the sheriff of Luna countjr upon said order or citation and vacate the order authorizing such service on said Temke; (2) to quash said information or strike the same from the files of the court, and (3) to vacate the order indorsed on said citation; and the said Lindauer also appearing specially for that purpose filed his plea to the jurisdiction of the court and a plea in abatement of said citation or summons, all of which motions and pleas were overruled by the court. Thereafter various demurrers and pleas were filed by the respondents, some on judisdictional grounds and others to the merits, to which the relator filed replications. Demurrers were filed by respondents to the replications, or at least by some of the respondents, which were overruled, and thereupon rejoinders were filed. To the rejoinders the relator filed a paper denominated a surrejoinder, setting up as exhibits two certain contracts, and praying that the court construe the same. There were so many different pleadings, demurrers, motions, etc., filed in the ease by the various parties, that it would unduly lengthen this statement of facts to give in detail the history of the pleadings. It will suffice to say that down to and including the filing of the rebutter, the respondents arranged themselves as follows: (a) The respondent Haskell stood upon the demurrer to the original information in the nature of quo warranto and refused to further plead; (b) the respondent Johnson stood upon the demurrer to the replication and his motions for judgment upon the ¡aleadings, and refused to further plead; (c) the other respondents filed pleas down to and including their rejoinders.
The cause was set down for trial on June 1, 1915, upon which date, or shortly thereafter, the relator elected to file a motion for judgment upon the pleadings, which motion was sustained, and final judgment of ouster was entered thereon upon the pleadings filed by the relator, for and in behalf of the state of New Mexico, from which judgment of ouster the respondents prayed this appeal.
The first question with which we are confronted is the action of the court in overruling the motions interposed by certain of the respondents to quash service. That the method employed in obtaining service upon the non-resident respondents was illegal and void hardly requires discussion. The relator was proceeding against the respondents as individuals and alleged that they were not directors of the corporation and had no connection therewith, but were usurpers and intruders. In view of these allegations and of the relief sought, it could hardly be contended that the service of summons upon, an individual, designated by these alleged usurpers as resident agent of the corporation, for the purpose of accepting service upon the corporation and the directors and officers of the corporation, as such, would be effectual to bring the individuals legally before a court in an action of this kind".
Sections 932 and 034, Code 1915, which require a corporation to designate a resident agent upon whom process against the corporation may be served, and which provide:
“And whenever by the provisions of any law of this state •notice is required to be given to the corporation, its officers, stockholders or directors, such notice shall be sent by mail or otherwise, as the law may require, to such registered office, and such notice so given shall be deemed sufficient notice”—
does not authorize service of process upon a supposed agent alleged to have been designated as such by parties who have usurped and intruded into the offices of directors of such corporation, or to have usurped franchises of the corporation in an action by information in the nature of quo warranto against such individuals to oust them from the exercise of such offices and franchises. Indeed, these sections provide no warrant whatever for the service of process upon individuals who may be directors of a corporation, and, as such, have designated an agent of the corporation upon whom service of process against the corporation may be had, where the action is against such directors or other officers of the corporation in their individual capacities, and not as directors or officers of the corporation.
Appellee contends, however, that if the service should be defective that appellants have entered a general appearance in the case, and that they are bound by the judgment.
Appellants admit that as to all of the respondents save l-Iuller the appearance was general, or, to say the least, they do not contend that the remaining respondents have not generally appeared. It is strenuously insisted, however, that the court never acquired jurisdiction over Luis Huller, and while I am inclined to agree with this contention I shall not discuss the question at length. Huller, with others, filed, first, a motion to.quash the return of the sheriff; second, a motion to vacate the order made ice upon respondents; and, third, a motion to quash the information or in the alternative to strike it from the files.
In these various motions two questions were raised: First, jurisdiction of the court over the subject-matter; and, second; jurisdiction over the person. -The rule of April 16, 1914, allowing service upon Temke to be servpleading at common law and the orders in which the pleas may be made are: (1) To the jurisdiction of the court. (2) To the persons: (a) Of plaintiff; (b) of defendant. (3) To the count. (4) To the writ therein: ( a) To the form of a writ; (b) to the action of a writ. (5) To the action itself in bar thereof.
By this order of pleading each subsequent plea admits the former; as when the defendant pleads to the person, he admits the jurisdiction of the court. When he pleads to the count he admits the competency of the plaintiff and his responsibility. When he pleads to the form of the writ he admits the form of the count and in like manner of the rest. 1 Tidd’s Practice, 630.
Here Huller joined in the same plea questions relating to the jurisdiction of the court over the subject-matter and jurisdiction over the person. By so doing he doubtless waived the question of jurisdiction of the court over the subject of the action, but I do not believe that it can be maintained, with any degree of logic, that he waived the question of jurisdiction of the person.
Nor did he waive this jurisdictional question by pleading to the merits when forced to do so by the overruling of his jurisdictional pleas. This question is settled by decisions of the Supreme Court of the United States. See Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237; Penn oyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.
Before giving consideration to what I deem the decisive question in this case, it is necessary to determine the nature and purpose of this proceeding. In the district court appellee insisted that the action was instituted under the provisions of 9th Anne, chapter 20, which has been held to be a part of the common law adopted in this jurisdiction by section 1354, Code 1915. While cognizant of tlie fact that many of the state courts have held that this statute was no part of the common law of England, and was not a part of the law of such states, by virtue of the adoption by such states of the common law of England as the rule of practice and decision, still the rule has been so long established and so consistently adhered to in this state that it would be unwise, at this late date, to enter upon a reinvestigation of the question. Hence I shall accept the repeated declarations of both the territorial and state Supreme Courts, that such statute is a part of the common law adopted by the statute above referred to as settled law.
By 9 Anne, c. 20, § 4, it is enacted:
“That in case any person or' persons shall usurp, intrude Jnto, or unlawfully hold and execute the offices of mayors, '"bailiffs, portreeves, or other offices within cities, towns corporate, boroughs, or places in England or Wales, or into the franchises of being burgesses or freemen of such cities, towns corporate, boroughs or places, it shall and may be lawful to and for the proper officer of the Court of Queen’s Bench, the courts of sessions of counties palatine, or the court of grand sessions in Wales, with the leave of the said courts respectively, to exhibit one or more information or informations in the nature of quo warranto, at the relation of any person or persons desiring to sue or prosecute the same, and who shall be mentioned'in such information or informations to be the relator or' relators against such person or persons so usurping, intruding into, or unlawfully holding and executing any of the said offices, or franchises, and to ■proceed therein in such manner as is usual in cases of informations in the nature of a quo warranto; and if it shall appear to the said respective courts that the several rights of diver's persons to the said offices or franchises may properly be determined on one information, it shall and may be lawful for the said respective courts to give leave to exhibit one such informatipn against several persons, in order to try their respective rights to such offices or franchises; and such person or persons, against whom such information or informations in nature of a quo warranto shall be sued or prosecuted,, shall appear and plead, as of the same term or sessions in which the said information or informations shall be filed, unless the court where such information shall be filed shall give further time to such person or persons, against whom such information shall be exhibited, to plead; and such person or persons, who shall sue or prosecute such information or informations, in the nature of a quo warranto, shall proceed thereupon with the most convenient speed that :may be.”
And it is further enacted (section 5) :
"That in case any person or persons, against whom any information or' informations in the nature of a quo warranto, shall in any of the said cases be exhibited in any of the said courts, shall be found or adjudged guilty of a usurpation or intrusion into, or unlawfully holding and executing any of the said offices or franchises, it shall and may be lawful to and for the said courts respectively, as well to give judgment of ouster against such person or persons of 'and from any of the said offices and franchises, as toi fine lsuch person or per'sons respectively for his or their usurping, intruding into, or unlawfully holding and executing any of the said offices or franchises; and also it shall and may be lawful to and for the said courts respectively to give judgment that the relator or relators in such information named shall recover his or their costs of such prosecution, and if judgment shall be given for' the defendant or defendants in such information, he or they, for whom such judgment ;shall be given, shall recover his' or their costs therein expended against such relator or relators: such costs to be 'levied by capias ad satisfaciendum, fieri facias, or elegit.”
A writ oí quo warranto was in tbe nature of a writ of right for the Icing, against him who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim in order to determine the right. Little is known of its origin, but that it was employed in the English courts centuries ago is not to be doubted, because in the earliest English Eeports we find cases wherein it was employed and the right was not questioned. Likewise, there is no historical certainty as to the origin of the remedy by information in the nature of quo warranto. That the writ was employed long prior to the statute of Anne is not. doubted. Such an action, however, was always, I believe, instituted by the Crown attorney, or on his relation, and a private relator was never admitted to institute the suit. That the procedure was different in many respects between the common-law action by information in the nature of quo warranto and the procedure under the statute of Anne is not subject to question. The former, as stated, was always instituted by the Crown attorney, and this without leave of court, and as a matter of right; the latter could only be filed by leave of court fii'st had and obtained. A private relator was unknown in the former proceedings, had no control over the cause, and if his name was added it was regarded as surplusage.
Prior to the statute of Anne the information in the nature of quo warranto was employed exclusively as a prerogative remedy to punish a usurpation upon the franchises or liberties granted by the Crown, and it was never used-as a remedy for private citizens desiring to test the title of persons claiming to exercise a public franchise. And although such informations were exhibited by the King’s Attorney General long before the enactment of the statute, yet the remedy thereby given was never enlarged beyond the limits prescribed for the original writ of quo warranto, which extended only to encroachments upon the royal prerogative. High’s Ex. Leg. Bern. § 602. The employment of the information in the nature of quo warranto, between parties, was unknown prior to the statute of Anne, as a means of investigating and determining civil rights
The usurpation of a right of franchise upon the Crown concerned the Crown alone, and whether the party so usurping should be ousted or permitted to continue and enjoy the franchise was a matter resting solely with the king, hence a private individual was never permitted to interfere or intrude in such matters as concerned the king alone. Whether the suit should be filed to oust such person from such franchise or claimed right rested solely with the Crown attorney, and leave of the court was never required.
Notwithstanding the fact that relator framed its pleadings and proceeded in the trial court upon the theory that the action was instituted under the provisions of the statute of Anne, and counsel so stated to the trial court, it is here contended that this cour should uphold the action of the trial court, upon the theory that the suit was instituted by the Attorney General, upon his own relation, for the purpose of ousting respondents from the exercise of franchises and privileges which they are usurping upon the state, and that we should disregard the relator named in the proceedings, and sustain the judgment of ouster. Hence the. first question to be determined is whether the petitioner should he held to the theory of the case adopted in the court below. That we must do so is readily apparent, unless this case comes within the exception to the general and well-established rule that the case on appeal must he decided on the same theory on which it was tried in the court below. 2 R. C. L. p. 183; 4 C. J. pp. 661, 662; Cadwell v. Higginbotham, 20 N. M. 482, 151 Pac. 315. The exception to the rule is thus stated in 4 C. J. 662:
“But, as shown, there are exceptions and limitations to this rule, and it is clear that the appellate court is not necessarily restricted to the theory on which the lower court proceeded, but may review any error apparent on the record and base its affirmance or reversal on a different theory or on different grounds, provided the question involved was properly befor'e the court.”
Here the relator refuses to definitely plant its feet upon either theory. Tt neither takes the position that the proceeding was instituted under the statute of Anne nor under the common-law proceeding by quo warranto or information in the nature of quo warranto. It says:
“If the proceeding could not be instituted under the statute of Anne, it could under the common-law writ of quo warranto or information in the nature of quo warranto; if the relator named could not be a relator or if the proceeding could not be instituted by a private r'elator disregard the relator and treat the naming of the one as surplusage, and sustain, the judgment upon the theory that the cause was instituted by the Attorney General on behalf of the state.”
The manifest infirmity of this contention is that the proceeding was not instituted by the Attorney General on behalf of the, state, or on his relation, but was instituted by a private relator, with his consent. This consent first appears by a letter filed in the district clerk’s office, written by the Attorney General to private counsel of the relator, in which he consents that the suit may be instituted on behalf of a private relator by the state, and permits the use of his name and the name of the state. This was necessary in a proceeding under the statute of Anne.
Again, from a perusal of the petition, it is apparent that relator is endeavoring to test the right of the respondents to usurp franchises and rights claimed by private parties, viz., the right of the “old hoard of directors” to exercise the rights and privileges claimed to be usurped and exercised by the respondents.
Assuming that the exercise, without right, of offices within a corporation, and the doing of acts affecting the rights of a corporation, or of its lawful hoard of directors, without right or authority, would he the usurpation of a franchise upon the state, it is clear that the state could proceed to reclaim these usurped franchises and rights, or refuse to do so, at its election and option. Private parties could not proceed in its name, or on relation, to reclaim them for the state, save under the provisions of the statute of Anne, or in some ’ other mode authorized by statute.
The Attorney General did not, in this proceeding, attempt to reclaim them for the state. lie did not, in his discretion, elect to institute the action. He merely gave his consent as the law officer of the state that the relator might institute the proceeding, and this the relator did, by leave of the court first had and obtained. It would present an anomalous situation if a private relator could obtain the consent of the Attorney General to the institution of proceedings by information in the nature of quo warranto, upon the theory that he was interested in the supposed usurpation of an office or franchise within a corporation, and, when his lack of interest appeared, still sustain the proceeding upon the theory that because the Attorney General gave his consent to the institution of the proceedings the court should treat it as though it were a suit instituted by the state, or on relation of the Attorney General, and proceed to oust the intruders from usurping a franchise upon the state, which the state might have been willing to condone or overlook.
In the trial court respondents insisted from their first appearance that the cause could not be instituted or conducted under the statute of Anne; that such statute had no application. This question was raised by demurrers, motions, and the pleadings in the ease, but despite their objections they were held strictly to the rule of procedure under the statute, and upon the theory that this statute applied, judgment of ouster was rendered upon the pleadings, it will be manifestly unfair to permit relator or the state to shift its position in this court, and to uphold the judgment, upon the theory that the cause was instituted by the state, or by the state upon the relation of its Attorney General, to oust the respondents from the usurpation of a franchise upon the state, when such was clearly not the case, and the state was not the moving party, but only consenting to the litigation of private rights affecting a corporation which it had created,'or the right to exercise offices and franchises within such corporation.
An apt illustration of the injustice of such a holding is illustrated by the following examples: Suppose that A is exercising the duties of state auditor, either lawfully or without right; B secures the consent of the Attorney General that he may institute proceedings by information in the nature of quo warranto to test his right to the office. B files the suit and, upon issue joined, it appears that he has no interest whatever in the office, and is not even a citizen of the state. Could and would the court proceed with the cause and oust the incumbent upon the theory that the cause was instituted by the state, or by tbe state on the relation of the Attorney General? Assuredly not.
Because of the foregoing considerations I believe that relator is bound by the theory of the case in the court below, and shall therefore proceed to a consideration of the same, upon the merits, and treat the suit as having been instituted under the provisions of the statute of Anne.
In this case very able, learned, and elaborate briefs have been presented by counsel on both sides, discussing many questions raised by the appellants. To consider and decide all the questions thus presented would require an unwarranted expenditure of time, research, and labor, because, in this jurisdiction, unfortunately, we have no legislative enactment regulating the employment of the writ of quo warranto or the information in the nature of a writ of quo warranto, hence are relegated to the practice and procedure under the common law of England; assuming, necessarily, that the statute of Anne was a part of the common law of that jurisdiction adopted here, as stated. Practically all of'the American states have enacted statutes upon the subject, many of them of different import and providing a different rule of procedure; hence the decissions of the state courts of this country fail to render much assistance to a jurisdiction where the procedure is still under the common law. Many of the questions presented are novel and of first impression.
The first question which I shall consider is whether a corporation can act as a relator in a proceeding by information in the nature of quo warranto, to test the right of named individuals to act as its officers and directors, or in its name to exercise franchises and rights which could only be exercised by them were they do facto or de jure officers of such corporation. Appellants state the proposition thus: “A corporation cannot act as a relator in information in the nature of quo warranto;” but I think this question is a much narrower question than as thus stated.
While the appellee insists here that no question of office-in the corporation is involved, and by a skillfully worded petition has sought to evade raising an issue as to the right to offices within the corporation, still the acts and doings charged against the respondents would have been legal and valid and within their power, were such acts clone by them as officers of the corporation in fact. Hence the issue in this case, as probably it would be in every like case, was as to whether the respondents were de jure officers of the corporation. It is true the court held that the various pleadings filed by them failed tó establish their title to the offices, but that could have no effect upon the primary question as to the right of the corporation itself to be the relator in such a proceeding. For, if it be conceded that a corporation could be a relator in an action to determine rival claims to its directorate, the agency through which it acts, and the very agency which puts it in as such a relator until it should appear from the pleadings that the respondents were officers de jure, then, logically, we would be required to go but a step further and hold that it could act as relator in such a case until it appeared from the evidence that the respondents had established their title to the offices or the right to perform the functions ,or execute the franchises which they were charged with usurping. This would mean, necessarily, that a corporation could in all cases act as a relator in such instances; for, when the evidence disclosed respondent’s title, the case would be ripe for judgment or subject to dismissal, and a judgment for respondents would leave no relator in the case. In such a case, assuming that the respondents were the de facto or de jure directors of the corporation, the relator would be put into the ease, as such relator, by the act of a pretended board of directors, which the court would be compelled to hold were not, in fact, either de jure or de facto directors; hence the act of the board in putting it in would not be the act of the corporation and would in no sense be binding upon the corporation. Therefore two very important essentials would be lacking, viz., there would be no informer, and no one responsible for costs.
T have found no reported case, and none has been cited by counsel on either side, where a corporation was put in as a relator in such a case as the one now before us for consideration. Appellants assert that no case is to be found, either in England or America, where a corporation has been permitted to act as a common informer, or as' a relator in a quo warranto proceeding. Appellee lias cited us to the case of Beverly v. City of Hattiesburg, 83 Miss. 621, 36 South. 74, wherein the right of the city to act as a relator in a quo warranto proceeding against a police captain or some minor city official was upheld. In that case the court says:
‘The relator in such proceeding need not ncessarily be an individual. A municipal corporation empowered to sue and be sued may be the relator and, in the case before us, ought to be.”
Whether the decision was • influenced by a local statute does not appear, but certainly such a case stands 'on quite a different footing from the present one.
Further citation is made to the case of State ex rel. Kansas City, Mo., v. East Fifth Street Railway Co., 140 Mo. 539, 41 S. W. 955, 38 L. R. A. 218, 62 Am. St. Rep. 742, in which ease the city sought to forfeit the franchise of a railway company. The court said:
“A suit to enforce such forfeiture might be maintained by the municipality, and in its name the state may maintain quo war'ranto to enforce such forfeiture.”
Other cases ci-ted of similar import are State ex rel. City of St. Louis v. L. D. Co., 246 Mo. 619, 152 S. W. 67; City of Olathe v. M. & K. I. Ry. Co., 78 Kan. 193, 96 Pac. 42; State ex rel. Vilter M. Co. v. M., B. & L. G. R. Co., 116 Wis. 142, 92 N. W. 546; and State ex rel. Green Bay G. & E. Co. v. Minaban Bldg. Co., 141 Wis. 400, 123 N. W. 258.
The influence of local statutory enactments upon the above-cited cases is not readily ascertainable, but even assuming that they were not influenced thereby, and that such states still adhere to the common law rule of practice and decision in such cases, they afford no precedents for sustaining the rigltt of a corporation to act as a relator in a suit to test the right of persons to exercise corporate functions in its name and behalf, where the right of the corporation to act as a relator is dependent upon whether such parties are rightly assuming to act for it; in other words, where the right of the officers of the corporation to name it as a relator depended upon the determination of the issues which are presented, or which may be presented in the quo warranto proceedings which it institutes.
The present case is like unto a case wherein a city council might put the city in as a relator in a quo warranto proceeding to determine the questoin as to whether the city council so directing the city to appear as relator, was the de jure council, or whether others usurping the offices and pretending to act for the city were councilmen.
Appellee argues, however, that because the information filed by relator shows that respondents were not in office as directors of the company, and were mere pretenders to such offices, and because it shows that such respondents were without right, using a spurious seal of the company, and likewise a spurious minute book, and were pretending, without right, to represent the corporation, the information, with the corporation as a relator, was proper, and the majority opinion so holds.
While I entertain grave doubt as to the correctness of the majority rule in the United States to the effect that an information in the nature of quo warranto is the proper remedy to try title to offices in private corporations in the absence of a statute extending the remedy to such offices, and am inclined to believe that the Massachusetts doctrine is the correct one under the statute of Anne (Goddard v. Smithett, 3 Gray (Mass.) 116; Haupt v. Rogers, 170 Mass. 71, 48 N. E. 1080,) still if we proceed upon the assumption that the majority holding is the correct doctrine, the majority opinion in this case in my judgment is unsound. It holds if I correctly understand the language that a corporation is a proper relator in a case brought to determine the right of certain individuals to exercise “privileges and franchises in the corporation” and proceeds upon the assumption that if an individual holds himself out to the public as an officer or agent of the corporation, and, as such, pretends to transact business in the name of the corporation, without any right or authority whatever, that he is exercising a franchise of the corporation, and in which event an information may be filed by the corporation as a relator to inquire by what right he does so. This statement of the law is inaccurate, as I shall attempt to show. In the first place, under the law, rights and privileges within the corporation can onty be exercised by either de jure or de facto officers or agents of the corporation. In other words, before an act may be done on behalf of the corporation which binds it, it must bo done by the officers possessed of authority to do the act. Here it is charged that the pretended board of directors elected at Doming filed a certificate appointing a resident agent; that it adopted a corporate seal for the corporation; that it appointed attorneys to represent it in the republic of Mexico, and did other like acts. These acts could only be done by the directors of the company, and, in order to be a director, the person pretending to act as such must bo in possession of the office. If the acts in question were done by individuals not in possession of the offices through which only the acts could be lawfully done, the corporation would not bo bound thereby, and no person would be in position to claim or assert any rights growing out of such action. There cannot be two individuals in possession of the same office at the same time, where, by law, only one individual can fill the office. Mechem on Public Officers, §§ 322 and 323. This being-true, if the Deming board of directors was in possession of the offices, as such, necessarily the claimed Ohio directors were out of office and had no power to act for the corporation as such in any manner. This claimed board therefore would have no power to put the corporation in as a relator in this case. If the Ohio board had possession of the offices of directors at the time the suit was instituted, most undoubtedly the information would not lie, because, if they were so possessed of the offices of directors, necessarily this board was in possession and control of all the rights, privileges, and franchises of the corporation, and they could not bring an information in the nature of quo warranto against the Deming crowd for the purpose of testing their right to exercise the franchises of the corporation which the Deming crowd did not enjoy or possess. The majority opinion proceeds upon the assumption that there may be usurpation of the franchises as distinguished from the office, and cites as authority for this view Mylrea, Attorney General, v. Superior & St. C. Ry. Co., 93 Wis. 604, 67 N. W. 1138, and People v. Thompson, 16 Wend. (N. Y.) 655. I have read both of these opinions with care, but failed to find a single word in either case supporting any such contention. I do not believe authority can be found, and certainly none is cited in the majority opinion supporting such view. Bouvier, vol. 3, p. 1399, defines a franchise as follows:
“A special privilege conferred by government on individuals, and which does not belong to the citizens of the country generally by common right."’
The author quotes Kent’s definition, which is:
‘A certain privilege conferred by grant from government and vested in individuals.”
And also gives Blackstone’s definition, which is:
“A royal privilege or branch of the King’s prerogative subsisting in the hands .of a subject.”
Nor is there support for the majority opinion in the statute of Anne, and certainly the position taken to be sound must find its support in this statute. In that statute it is said “that in case any person or persons shall usurp, intrude into, or unlawfully hold and execute the offices of majrors, bailiffs, portreeves, or other offices within cities, towns corporate, boroughs, or places in 'England or AArales, or into the franchises of being burgesses or. freemen of such cities, towns corporate,” etc., in which cases only the information may be filed.. Without thorough investigation I take it that the franchise of being a freeman of a city refers to being an inhabitant of such city or town, or possibly it meant a freeholder as distinguished from a villien. A burgess was an inhabitant of the town; a freeman; one legally admitted as a member of the corporation; a qualified voter; a representative in parliament of a town or borough. Bouvier’s Law Diet. 404. Eegardless, however, of which definition we may accept as the correct one, under the statute of Anne it will be seen that the right to exhibit the information in the nature of quo warranto, in so far as franchises were concerned, was limited to two instances, viz., the franchises of being burgesses or freemen “of such cities, towns corporate, boroughs or .places,” and if it be assumed that a person may exercise a franchise within a corporation without being in possession of the offices through which the franchises may be lawfully exercised, still an information in the nature of quo warranto would not lie because it is not given by the statute of Anne, under which the authority is derived. The reason given in the majority opinion quoting therefrom, is:
“To concede the contention that men associated for' the purpose of usurping corporate functions or powers must be directors or officers either de facto or de jure of the corporation, in order to authorize an ouster by proceedings in quo warhanto, would he to deny a remedy where perhaps none other might he adequate or available.”
The mere statement of this proposition carries with it, in my judgment, its own answer. An information in the nature of quo warranto is a proceeding at law, and if it does not provide an adequate remedy for a wrong equity will- afford the remedy. It is clear in my mind that in this case injunction was the proper remedy. According to the allegations of the petition, the respondents were intermeddling with the affairs of the corporation; they were issuing spurious powers of attorney and certificates, and doing other acts Which might tend to embarrass the corporation, and all such acts were being done without right or color of authority to restrain which equity would extend its - aid. Certainly if there was a remedy at law a court of equity would not assume jurisdiction.
As illustrative of my contention, suppose, for example, that John Smith was the legal, qualified, and acting clerk of the district court of Santa Fe county and in full possession of the office; that Peter Eoe would set himself up in some office, rented or occupied outside the court house and should hold out to the public that he was the clerk of the district court, and should proceed to issue summons, warrants, and other process; would it be contended for a moment that John Smith could institute proceedings by information in the nature of quo warranto to test out the right of Peter Eoe to continue to so exercise such rights and privileges? Most assuredly not. John Smith’s remedy would be by injunction.
For these reasons I cannot give my assent to the majority opinion, and while dissenting upon these grounds, I do not desire to be understood as concurring in the. views expressed in the majority opinion upon points which I have not discussed.