Savage, Ch. J.
now stated the-facts ; upon which facts, he said, three questions had been made at the bar. The first-respected the power and duty of the Court-to grant the information in this particular case ; the second, what ' should be deemed a holding within the words of the charter, so as to constitute a voter; and the third, the validity of the by-law, requiring, an oath of the voter, or other proof as the test of his qualification.
The statute (1 R. L. 108) gives the remedy by quo warranto against any person who shall usurp, intrude into, or unlawfully hold and execute any office or franchise within this - state. To be a corporation is a franchise, (2 Bl. Com. 37,)for the usurpation of which an information always lies. (15 John. Rep. 386 to 389. 1 Str. 303.) And the question is, whether an intrusion into offices, created for the government or exercise of the franchise, is equally within the act as an usurpation of the franchise itself. The 9 Ann. c. 20, seems to treat a corporate office as, in itself, a franchise. The words of our statute are even broader than those of the English j and if, as was agreed -upon the argument, they embrace [381]*381corporate offices which have an extensive influence upon society, it is difficult to perceive any reason for limiting their operations to these only, in exclusion of the less important offices of the same description. There is certainly nothing requiring this in the act itself. The words of the 9 Anne are, u that in case any person or persons shall usurp, intrude into, or unlawfully hold and execute, the office or franchise of mayor, bailiff; port reeve, or other office within a city, town corporate, borough or place in England or Wales,” it shall be lawful, with leave, &c. to file the information. To these words, the King’s Bench at one time, consider some few mere private offices or franchises an exception; but later cases leave it doubtful whether any such exception now exists. No' such distinction upon our statute has ever been judicially recognized; nor do we feel warranted in governing ourselves, upon these applications, by the greater or less degree of public consequence attached to the office in question. Such a rule would be fluctuating, uncertain, and, indeed, could never be reduced to practice. The question was not even raised in The People v. Kipp & others, decided by this Court in August term, 1822, and reported in The U. States Law Journal, 286. Nor do we think it can well admit of any doubt. Indeed, the case would seem to be within the English statute, which it is said extends to offices relating to the government of a corporation. (Rex v. The Corporation of Carmarthen, 2 Burr. 869. 1 Bl. Hop. 187, S. C.)
In The People v. Sweeting, (2 John. Rep. 184,) there had been great delay in making the motion. The office of town supervisor, to which it related, would expire in the short term of three months.; it was impossible that an issue could have been sooner tried; and the Court, in their discretion, under the circumstances of that case, denied the information.- Here the motion was brought before us at the term next after the election. We cannot refuse it upon the mere chance that a trial may fail. To do this would be equivalent to a refusal in all cases, where the office is annual; a length to which we presume the Court [382]*382did not intend to go, and to which it was not necessary they should go, in The People v. Sweeting. On the whole we are clear, upon the nature of the case, as to our right °f allowing the information to be filed; and that the lapse of time is not such as to require us, in the exercise of a sound discretion, to deny it.
The second and third questions we shall not discuss at large; because we think they are both disposed of by the People v. Kip & others. That case was said, at the bar, not to apply; the qualification of the voter being that he should have held, in his own name, the stock on which he sought to vote, for a certain number of days before the election; whereas it is here that he should have held simply, without providing that it should he in his own name. If there he any distinction, it is in favor of the present application. The provision in that case was more sedulously restrictive upon the voter, requiring not only a holdings hut a holding in a particular manner, or to he evinced by a particular species of evidence. The case cannot, therefore, be distinguished, at most, in favor of these officers, by any difference of wording in the statute upon which it proceeded from the one now under consideration. On reflection, we are satisfied with the decision in that case.
Rule granted .
IN SUPREME COURT, August Term, 1833.
The People of the State of New York, at the relation of Jacob Barker, Thomas Hazard, jun., and Thomas M. Huntington, against Leonard Kip, David Rogers, John C. Morrison, Duncan Phype, Thomas Darling, Thomas Brooks, Charles Town, Alexander McMuir, Peter A. Jay and Abraham B. Mead.
Samuel A. Talcott, Attorney General of the People of the State of New York, moved, on Tuesday the eighth instant, for leave to file an information in the nature of a quo warranto against the defendants above named, who claim to be directors of- the North River Bank of the city of New York. This motion was founded on a bill in Chancery recently filed against the defondants and others, by James D. P. Ogden, Jacob Barker and others, and on the answers to that bill, and also on an affidavit showing that the relatora above named are stockholders in the North River Bank.
On Friday, Chief Justice Spencer delivered the opinion of the Court, to the following effect:—
[383]*383These applications being generally founded on the cx parte affidavit of the relators, it has of late years been usual in the English Court of King’s Bench, and in this Court, to afford the defendant an opportunity of "being heard against granting leave to file the information. A rule to shovy cause is, therefore, generally entered ; and leave is afterwards granted or refused, as circumstances shall appear upon cause shown. In the present case, the application is for leave to file the information in the first instance. There is no doubt that the Court are bound to exercise a reasonable discretion on tho subject; and this cause comes before us in a manner so peculiar, that wo think it proper to except it from the general rule. The application does not rest upon a mere ex parte affidavit. The evidence placed in our bands comes from the defendants themselves, or from a source most favorable to them. We have the sworn answers of the defendants to a bill in Chancery, filed in relation to the very election complained of. We have also the answers of the inspectors of that election. Upon a rule to show cause, nothing could be alleged by the defendants against granting leave to file the information, which is not already urged on their part, in the papers presented to tho Court. We .have looked into the answers, and we find the defendants and tho inspectors admitting a state of facts, which not only render it proper to grant leave as applied for, but which seem to us imperiously to require it at our hands. To give time under such circumstances, would be an abuse of the discretion vested in this Court.
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Savage, Ch. J.
now stated the-facts ; upon which facts, he said, three questions had been made at the bar. The first-respected the power and duty of the Court-to grant the information in this particular case ; the second, what ' should be deemed a holding within the words of the charter, so as to constitute a voter; and the third, the validity of the by-law, requiring, an oath of the voter, or other proof as the test of his qualification.
The statute (1 R. L. 108) gives the remedy by quo warranto against any person who shall usurp, intrude into, or unlawfully hold and execute any office or franchise within this - state. To be a corporation is a franchise, (2 Bl. Com. 37,)for the usurpation of which an information always lies. (15 John. Rep. 386 to 389. 1 Str. 303.) And the question is, whether an intrusion into offices, created for the government or exercise of the franchise, is equally within the act as an usurpation of the franchise itself. The 9 Ann. c. 20, seems to treat a corporate office as, in itself, a franchise. The words of our statute are even broader than those of the English j and if, as was agreed -upon the argument, they embrace [381]*381corporate offices which have an extensive influence upon society, it is difficult to perceive any reason for limiting their operations to these only, in exclusion of the less important offices of the same description. There is certainly nothing requiring this in the act itself. The words of the 9 Anne are, u that in case any person or persons shall usurp, intrude into, or unlawfully hold and execute, the office or franchise of mayor, bailiff; port reeve, or other office within a city, town corporate, borough or place in England or Wales,” it shall be lawful, with leave, &c. to file the information. To these words, the King’s Bench at one time, consider some few mere private offices or franchises an exception; but later cases leave it doubtful whether any such exception now exists. No' such distinction upon our statute has ever been judicially recognized; nor do we feel warranted in governing ourselves, upon these applications, by the greater or less degree of public consequence attached to the office in question. Such a rule would be fluctuating, uncertain, and, indeed, could never be reduced to practice. The question was not even raised in The People v. Kipp & others, decided by this Court in August term, 1822, and reported in The U. States Law Journal, 286. Nor do we think it can well admit of any doubt. Indeed, the case would seem to be within the English statute, which it is said extends to offices relating to the government of a corporation. (Rex v. The Corporation of Carmarthen, 2 Burr. 869. 1 Bl. Hop. 187, S. C.)
In The People v. Sweeting, (2 John. Rep. 184,) there had been great delay in making the motion. The office of town supervisor, to which it related, would expire in the short term of three months.; it was impossible that an issue could have been sooner tried; and the Court, in their discretion, under the circumstances of that case, denied the information.- Here the motion was brought before us at the term next after the election. We cannot refuse it upon the mere chance that a trial may fail. To do this would be equivalent to a refusal in all cases, where the office is annual; a length to which we presume the Court [382]*382did not intend to go, and to which it was not necessary they should go, in The People v. Sweeting. On the whole we are clear, upon the nature of the case, as to our right °f allowing the information to be filed; and that the lapse of time is not such as to require us, in the exercise of a sound discretion, to deny it.
The second and third questions we shall not discuss at large; because we think they are both disposed of by the People v. Kip & others. That case was said, at the bar, not to apply; the qualification of the voter being that he should have held, in his own name, the stock on which he sought to vote, for a certain number of days before the election; whereas it is here that he should have held simply, without providing that it should he in his own name. If there he any distinction, it is in favor of the present application. The provision in that case was more sedulously restrictive upon the voter, requiring not only a holdings hut a holding in a particular manner, or to he evinced by a particular species of evidence. The case cannot, therefore, be distinguished, at most, in favor of these officers, by any difference of wording in the statute upon which it proceeded from the one now under consideration. On reflection, we are satisfied with the decision in that case.
Rule granted .
IN SUPREME COURT, August Term, 1833.
The People of the State of New York, at the relation of Jacob Barker, Thomas Hazard, jun., and Thomas M. Huntington, against Leonard Kip, David Rogers, John C. Morrison, Duncan Phype, Thomas Darling, Thomas Brooks, Charles Town, Alexander McMuir, Peter A. Jay and Abraham B. Mead.
Samuel A. Talcott, Attorney General of the People of the State of New York, moved, on Tuesday the eighth instant, for leave to file an information in the nature of a quo warranto against the defendants above named, who claim to be directors of- the North River Bank of the city of New York. This motion was founded on a bill in Chancery recently filed against the defondants and others, by James D. P. Ogden, Jacob Barker and others, and on the answers to that bill, and also on an affidavit showing that the relatora above named are stockholders in the North River Bank.
On Friday, Chief Justice Spencer delivered the opinion of the Court, to the following effect:—
[383]*383These applications being generally founded on the cx parte affidavit of the relators, it has of late years been usual in the English Court of King’s Bench, and in this Court, to afford the defendant an opportunity of "being heard against granting leave to file the information. A rule to shovy cause is, therefore, generally entered ; and leave is afterwards granted or refused, as circumstances shall appear upon cause shown. In the present case, the application is for leave to file the information in the first instance. There is no doubt that the Court are bound to exercise a reasonable discretion on tho subject; and this cause comes before us in a manner so peculiar, that wo think it proper to except it from the general rule. The application does not rest upon a mere ex parte affidavit. The evidence placed in our bands comes from the defendants themselves, or from a source most favorable to them. We have the sworn answers of the defendants to a bill in Chancery, filed in relation to the very election complained of. We have also the answers of the inspectors of that election. Upon a rule to show cause, nothing could be alleged by the defendants against granting leave to file the information, which is not already urged on their part, in the papers presented to tho Court. We .have looked into the answers, and we find the defendants and tho inspectors admitting a state of facts, which not only render it proper to grant leave as applied for, but which seem to us imperiously to require it at our hands. To give time under such circumstances, would be an abuse of the discretion vested in this Court. Wo will briefly advert to a part of the case, as admitted by the defendants and inspectors. A controversy existed among the stockholders of the bank, a portion of whom were desirous to effect a change in the direction. A few days before the election, a by-law was passed by the board of directors, of which board most of the defendants were members and then present, authorizing any stockholder to challenge the votes offered at the election; and if supported by affidavits or other probable cause, to the satisfaction of the inspectors, that they might then require the person whose vote should be challenged, to make oath in answer to the cause of challenge, the sufficiency of which should be determined by the inspectors; and if such oath was refused, that tho vote should be rejected. Under this by-law, votes given upon the proxies of several persons, who appeared, from the books of the bank and the certificates of the cashier, as stockholders to a large amount, were challenged on the ground that the persons in whose names tho stock stood, and who held the certificates of the bank, were not the exclusive owners, but that some third person or persons had an equitable interest therein. This was considered by the inspectors as good cause of challenge; and the persons whose proxies were thus objected to, were required, notwithstanding the most urgent remonstrances to tho contrary, to make affidavits in writing in answer to these allegations, and to answer, under an oath prescribed by men who did not themselves act under the solemn obligations of an oath, to various verbal interrogatories, and to submit to a sort of inquisitorial examination at variance with the fundamental principles of our civil and political institutions, at the pleasure of tho inspectors. In this manner, votes upon a great number of shares were entirely disregarded by the inspectors. It is evident, from the answers, that if all the votes received into the hands of the inspectors from persons duly autho[384]*384mod to "give such votes,"liad been estimated by'the inspectors, that tho result would have been different from that declared'by tho inspectors ; as, in such case, the persons whoso seats are" now contested, could not have been certified ■ to have been elected.
“ Without entering any further at this time into the facts disclosed, wo are unanimously of opinion, that the by-law, and the proceedings under it at the election, wore most illegal and reprehensible. The act of incorporation provides, ‘ that each stockholder shall be entitled to one vote in each share of the stock of the bank, which ho shall have held in his own name at least foúrteeñ days previous to tho time of voting.’ (Sess. 44, ch. 14'6, § 8.) Further than this, the inspectors had no right to inquire, as it was not competent for tho directors to pass any by-law at variance with tho positive provisions of tho act incorporating the bank. We therefore feel our- ' selves called upon to grant the motion ; more especially tis tho statute contemplates, in cases of this sort, the most speedy and effectual proceedings which adue regard to the rights of parties and the proper administration of justice will permit.”
Leave granted to file the information instanter.
Counsel for tho plaintiffs,
S. A. Talcott, Att’y Gen. Benjamin F. Butler.
Counsel for the defendants, Samuel Jones.