Le Bosquet v. Myers

In this case suit was instituted by the appellees, plaintiffs below, to secure a judgment of ouster against appellants, defendants below, to remove them from the office of directors in a private corporation, known as the Le Bosquet Coal & Mining Company. This action seems to have been instituted under the provisions of section 6464, c. 151, of Mansfield's Digest of Statutes, which contains the following provisions: “In lieu of the writs of scire facias and quo warranto, or of an information in the nature of a quo warranto, actions by proceedings at law may be brought to vacate or repeal charters, and prevent the usurpation of an office or franchise.” Section 6466 of the same chapter recites: “Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the state or the party entitled to the office or franchise.” Section 6470 provides for judgment of ouster of the usurper, and the induction therein of the plaintiff. The Supreme Court of Arkansas, in construing these several sections, in Wheat vs Smith, 50 Ark. 266, 7 S. W. 161, says: “The design of these provisions was to enlarge the remedy- formerly afforded by information in the nature of quo warranto. Wood on Mandamus, 224; State ex rel. *77vs Messmore, 14 Wis. 115; Patterson vs. Miller, 2 Metc. (Ky.) 497; People ex rel. vs Thatcher, 55 N. Y. 529, 14 Am. Rep. 312. That intention is expressed in the first section and is manifested by the nature of the remedy provided in the others. It opens the way for the person who would have been the relator in an action by the state, under the common-law practice, to institute the proceedings to test his title to an office in his own name, without leave of court, or the intervention of her officials as a party. It is necessary to recur to the object of the act to determine by and against whom an action under it may be maintained. The remedy being a substitute for, and a modification of, the proceeding by information in. the nature of quo warranto, we may look to that proceeding to determine its character.” It is our opinion that these statutes, by stating that they are in .lieu of the writs of scire facias and quo warranto, and of an information in the nature of a quo warranto, apply only to public offices, and not to offices of a private corporation. It appears that the Supreme Court of Arkansas, in construing this statute, have uniformly given the statute that construction; and, as is well settled, the construction of a statute of Arkansas by the Supreme Court of that state is binding upon this court.

Therefore the motion filed in this case to dismiss the appeal will be overruled, and the plea in abatement to the jurisdiction of the United States Court for the Central-District of the Indian Territory should have been sustained, and this case should have been dismissed for want of jurisdiction. It is reversed and remanded with directions to the lower court to dismiss the case.

Reversed and remanded.