People ex rel. Henderson v. Snedeker

The scope and extent, as well as the form and manner of the proceedings in the action now substituted for an information in the nature of a quo warranto, are fixed and regulated by statute. Before the Revised Statutes of 1830, the judgment in quo warranto could only go to the right of the defendant. That was the only question determined, and the party really entitled was obliged to institute a new proceeding to get into possession of the office. (See Revisórs Notes to Art. 11, Tit. 11, Ch. 9. Part 111., Rev. Stats). The new provisions introduced at the revision of the statutes in 1830 were intended to remedy this defect, and to enable the party claiming the office to come into the process and to have his right determined, as well as the wrongful intrusion of the party in possession. To make the remedy complete, a subsequent section was added to provide for the recovery of the fees which the defendant had received, and, to make this recovery more effectual, the relator was permitted by section 30, on making affidavit that fees had been received, to have the capias issued when the information was filed made veritable, and to arrest the defendant and hold him to bail to satisfy whatever amount of fees should finally be recovered. But these fees were not recovered in or by the judgment upon the information, but by a proceeding by a suggestion after judgment in the original proceeding of quo warranto. This suggestion was filed and served as a declaration in a personal action, and went on to issue, trial, and judgment for the amount of fees and emoluments shown to have been received by the defendant, in the same manner as ordinary suits at law. (2 Rev. Stats., 582, 583 ; §§ 31, 34—38).

The Code, section 428, has repealed these provisions and abolished the proceedings by information. In substituting an action, the provisions of the former statute are however substantially re-enacted and applied to the civil action, which is now the only remedy. But there are two marked differences. By section 441, the terms and effect of the judgment to be rendered against a defendant convicted of intrusion, are regulated *239and defined with a narrowness and strictness not to be found in the former system. The judgment is to be that “ the defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against the defendant.” And by section 439, an “ action ” for the damages sustained by the plaintiff by the unlawful intrusion, is substituted for the proceedings by suggestion, which are completely done away with.

As the judgment in the original proceeding by quo warrantoto itself was extended to ascertain and adjudge any amount of fees received- by the defendant, or damages sustained by the relator, and as that judgment is now expressly confined by statute to the determination of the right, without reaching the question whether any fees have been received, much less assessing their amount and providing for their recovery—as finally the former supplemental proceeding by which all these questions were settled in the same suit or proceeding, is abolished, and a new remedy by an original action substituted,— I am unable to see how upon the present trial I can determine anything but the mere right between these parties. The question whether the relator has sustained any damages by the receipt of fees by the" defendant during his occupation of the office which has been the subject of the present controversy, and what the amount of such damage is, must be left to a new and original litigation for decision.

It is urged that this view of the provisions of the Code renders the arrest of the defendant in the original action to try the title to the office an absurd as well as an offensive proceeding. It is not to be denied that it has very much that appearance. It is not easy to see what should be the conditions of the bail which is to be exacted from the defendant on such an arrest. Granting such an order of arrest, however, is not imperative upon the court or judge, and if the view which I have taken of the question be correct, it is not to be supposed that an arrest will very readily be sanctioned in any such case. These are considerations, however, more proper for the legislature than the courts. These difficulties have evidently been introduced by a hasty and, perhaps, inconsiderate attempt to simplify the former practice, in cases of *240quo wa/rranto, and to assimilate it to the new procedure. Portions of the former well-considered and well-adjusted statutes have been introduced into the new legislation, and other portions omitted, without regarding their accuracy, connection, and inter-dependence, and the result is that some of the portions retained are not only unnecessary but unjust, standing alone, and without the provisions left out, which made them wise and necessary in their original position and connection.