Year: 1879

wrong sought to be redresscd is in law that Of the
defendant.


THE PROPER REMEDY.


The question remains whether the plaintiff has
remedy in equity and by injunction. That depends
upon whether the law affords an adequate remedy.
1t is not pretended that this would be afforded By
mere action for damages. Nor IL it claimed that the
provisions of the Revised Statutes giving this Court
power on summary application TO set aside cor
porate election have any application. The conten-
ton is that the plaintiff has remedy by civil action
in the nature Of quo warranto Whether such
remedy exists depends upon the meaning of the
phrase 'any franchise within the State" contained in
subdivision l. of section 422 of the Code of Procedure
any person shall usurp. intrude into unlawfully
hold or exercise any public Office civil or military,
or any franchise within this State. or any ofce in
corporation created by the authority of this State.
of course membership in this society is not apubc
office, civil military, nor is it Office in cor
poration created by the authority of this State Is it,
then. franchise within this State contemplated
bv the sectionf In general sense every corporate
right is a species Of franchise Membership is such
and SO is Office. II the words "any franchise
intended to cover mere personal right or
privilege then it is quite evident that the extension
in corporation Is certainly quite as much fran
chise as membership. II it was thought necessary
reason that membership would have been similarly
treated il intended to be embraced. The purpose is
apparent to limit the action, aid to mere per-
sonal privilege. to office. Full effect can stil be
given to the expression "sny franchise" by treat
ing it in this connection referring to
Of the many classes OF incorporeal hereditaments.
iege OF making road or establishing ferry q Kent,
9th ed p. 45s or bridge. Its essence is egisla-
tive grant, though in some cases it may be held by
prescription. which presupposes grant. Thus we
have a harmonious scheme with provision-hrst. for
is sS
only the reasonable view Of the section but 1t fol-
lows the history OF quo wArranto and the adJudsed
cases.


FUNCTIONS OF QUO wAuRANro.


The general function of quo warranto, both in
England and this country, has been to check usur-
ONCE. cOrnOrate privilege
the corporation as such. In the case of The People
The Utica Insurance Company p5 Johns. 3S7)
o franchise was defined by Judge Spencer to be
privilege or immunity Of public nature which
cannot legally be exercised without legislative grant
and at page ssS he observea that


many cases might be cited in which injunctions in
the nature of quo warranto have been refused
where the right exercised OF .
private nature to the injury only Of some
Individual" Following this case it was held in
would lie against pepsons Who usnrp the
right to be corporation, because Ito be corpora
tion is franchise" What constitutes an ofiice
within the meaning Of the section In question must
still be determined by the general rules OF the COM
mon law. A fortiori what constitutes franchiseP
1t should be considered in this connection that
warranto would here even Il authorized be prac,,
tically inappropriate Usually the reator is rival
candidate or claimant OF the usurped Office The
LAT gentlemen in question have rivals. They are
adopted. If initiated and then proceeded
s'nss Ss on y the reasn 9 mo claimant Of
their membership. Would they. could they,
be ousted and subjected to bill of costs.
merely because the society through its secretary,
had deprived single member OF the right to vote?
The answer cannot be doubtful. But even if the
action would lie what practical good could result
from such proceeding? The plaintiff desires .
change in the management of the society. His object
is not unlawful In seeking that object he purposes
scrutinixng the candidates for membership and
voting upon their admission Now II the only remedy
be quo warranto, the persons elected would, long
before judgment of custer. have voted upon the
ieaue for auxiliary Injunction
could be granted to restrain the exercise
of the rights Of de facto membership. How,
then, can the remedy be adequate7 Look
ut the effect OF such doctrine. 1t would
place it in the power of the secretary of any corpora
ton. simply by repetition Of similar performances
on the eve Of every election OF ocers to perpetuate
tho management Even in Hart vs.. Harvey, Judge
Mullins acknowledged that equity jurisdiction might
attach "to prevent failure OF justice" or "by
considerations in the particular case,
by reason of which the court of law cannot furnish
adequate relief"


INyUsc1Ion THE ONLY RExEDY.


Our conclusion therefore. is, that the plaintiff has
remedy, certainly adequate remedy at law. and
that in reality hts only remedy il that which he
claims in the present action. His right, too, is in
dividua and personal. He asks decree for share
OF the funds property OF the corporation.
thereto. His associates not necessary parties.
nor need he file his bill on their behalf should
he have asked the defendant to bring the suit for
him. The right is not the dcfepdants, not the
sachems. not the other members. It is his. and 1t
is sacred and nviolabe for it goes to the very root
ion. both upon the facts the law that the plain
til is entitled to continuation of the injunction,
with COSTS aud that the defendants motion to strike
out should be denied. with costs.