Although quo warranto proceedings will lie against a municipal corporation in this country, yet they are seldom employed. See a case in State v. Bradford, 32 Vt. 50 ; and see State v. Miller, 66 Mo. 328; State v. Cah aba, 30 Ala. 66. They will lie against mem bers of a city council ; Com. v. Allen, 70 Pa. 465 ; People v. Hall, 80 N. Y. 117 ; State v. Gray, 23 Neb. 365, 36 N. W. 577 ; contra, Wyatt v. Buell, 47 Cal. 624; State v. Tom linson, 20 Kan. 692 ; school trustees ; Renwick v. Hall, 84 Ill. 162 ; a sheriff ; People v. May worm, 5 Mich. 146 ; Cora. v. Walter, 83 Pa. 105, 24 Am. Rep. 154; a lieutenant-governor ; State v. Gleason, 12 Fla. 265 ; a governor ; Attorney General v. Barstow, 4 Wisc. 567; a judge of probate; People v. Heaton, 77 N. C. 18 ; a mayor ; People v. Thacher, 55 N. Y. 525, 14 Am. Rep. 312; an elector of presi dent of the United States, proceedings be ing taken in the name of the United States ; State v. Bowen, 8 S. C. 400 ; a major-general of militia ; State v. Brown, 5 R. I. 1; so of 1 other militia officers ; Com. v. Small, 26 Pa. 31; State v. Utter, 14 N. J. L. 84; but see State v. Wadkins, 1 Rich. (S. C.) 42 ; super intendent of the poor ; Taggart v. James, Mich. 234, 41 N. W. 426 ; but not against a policeman ; Atty. Gen. v. Cain, 84 Mich. 223, 47 N. W. 484. There must first be a user of the office; Pegple v. Callaghan, 83 M. 128; , 5 T. R. 85 ; but taking the oath ; id.; or exercising its functions without taking the oath ; Hyde v. State, 52 Miss. 665 ; is enough.
The writ lies to test the validity of a dram shop license; Martens v. People, 186 111. 314, 57 N. E. 871; contra, Hargett v. Bell, 134 N. C. 394, 46 S. E. 749; but not against the sheriff for a failure to suppress a mob ; State v. Ale Lain, 58 Ohio St. 313, 50 N. E. 907 ; nor in the name of a state at the relation of a pri vate person to dissolve a corporation or seize its franchise ; 7 N. J. L. J. 82.
Mandamus will not lie to compel the At torney-General to give leave to begin quo warranto proceedings, a discretion being en trusted to him in such matters ; People v. Healy, 230 Ill. 280, 82 N. B. 599, 15 L. R. A. (N. S.) 603; if he refuses, one claiming election to an office may by leave of court bring quo warranto by his own relation; State v. Sadler, 25 Nev. 131, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128, 83 Am. St. Rep. 573.
Quo warranto lies against a corporation to determine whether there has been a mis user or a nonuser of corporate franchises, or whether the corporation has usurped franchises never granted to it; but does not He to test the legality of any act of the corporation ; State v. Road Co., 37 Mo. App. 496.
Quo warranto is the only direct and ade quate remedy for trying title to public of fice. The review of an election to public office by certiorari may determine collateral questions respecting validity of laws or or dinances, but can have no effect as a bar in a subsequent information in the nature of a quo warranto. The validity of proceedings
for the election of a minor officer such as janitor of a court-house, may be reviewed on certiorari. An incumbent cannot proceed in quo warranto against one not in posses sion of the office, he must await the attack of his adversary ; State v. Board, 58 N. J. L. 340, 33 Atl. 737.
Pleadings in quo warranto are anomalous. In ordinary legal proceedings, the plaintiff, whether he be the state or a person, is bound to show a case against the defendant. But in an information of quo warranto, as well as in the writ for which it is substituted, the order is reversed. The state is not bound to show anything, but the defendant is bound to show that he has a right to the franchise or office in question ; and if he fail to show authority, judgment must be given against him; 4 Burr. 2146, 2127 ; Ang. & A. Corp. 636. To the writ of quo warranto the de fendant simply pleaded his charter, which was a full answer to the writ ; just as be fore the statute of Edward I. the production of the charter to the king's commissioners was full authority for the possession of the franchise or office. But to an information of quo warranto the plea of the defendant consists of his charter, with an alsque hoc denying that he usurped the franchise, and concludes with a verification. The plea is in form a special traverse, but in substance it is not such. The information was orig inally a criminal proceeding, to punish the usurpation of the franchise by a fine, as well as to seize the franchise ; therefore the in formation charged usurpation, and the de fendant was compelled to deny the usurpa tion, as well as to show his charter, which he did in the form of an absque hoc to his plea. But when the proceeding ceased to be crim inal, and, like the writ of quo warranto, was applied to the mere purpose of trying the civil right to the franchise, the absque hoc denying the usurpation became immaterial, though it is still retained in the forms ; 4 Cow. (N. Y.) 106, with full and learned note. In Coke's Entries 351, there is a plea to an information of quo warranto without the absque hoc. The absque hoc, being im material, should not be answered by the rep lication, as it must always be in a special traverse ; but the charter, in the first part of the plea, though occupying the place of an inducement, must be denied by the repli cation, its existence and character being the sole question in controversy upon which the legality of the acts of the corporation turns; Gilb. Dv. 6, 145 ; 10 Mod. 111, 296.