Ellis, J.
— The City of St. Petersburg seeks by means of a writ of quo warranto based upon a petition signed in its name by its attorneys to test the authority by which R. H. Noel exercises the powers and functions of Chief of Police of the city.
In the petition the city was not joined by the Attorney General of the State, who refused an application by the city to him to allow the information to be brought in his name as Attorney General.
Upon the petition being presented to this Court it caused a rule
nisi
to be issued to Noel requiring him to show cause on a date named why the petition in the nature of quo warranto should not be permitted to be filed and due and orderly proceedings had thereon according to law.
Noel made a return to the rule in which he questions both the power of the court to issue the writ upon the informa
tion tendered as well as the propriety of a judgment of ouster in the event the court should issue the writ.
As stated by Mr. Justice Buford, the purpose of the Court in issuing the rule was to get the benefit of advisory argument on the question of the right of the municipality to maintain the proceedings without being joined by the Attorney General. The question therefore is whether a municipality upon discovering some person occupying an office in the city government, in possession of the office and records and files, who has usurped the powers and franchises of the office and refuses to surrender possession of it to' the duly constituted or appointed official, or who having been duly elected or appointed to an office and the office has been abolished or the term to which the person was elected or appointed has expired or he has been removed by proper authority of the city government, yet refuses to vacate the office and continues to exercise the powers appertaining to it and discharge its functions and enjoy its privileges, may the city obtain upon its application to the proper court a writ of quo warranto to oust the usurper and test his right or title to the municipal office without obtaining the consent of the Attorney General?
The ancient common law writ and remedy of quo warranto has been obsolete in England for centuries. See Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. Rep. 437, 28 L. Ed. 482.
It was originally a civil writ at the suit of the Crown and not a criminal prosecution. Its place was supplied by an information in the nature of a quo warranto which in its origin was “a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the Crown.” 3 Bl. Com. 263.
Mr. Chief Justice Waite in the case above cited said:
“Long before our Revolution, however, it lost its character as a criminal proceeding in everything except form, and was ‘applied to the mere purposes of trying the civil right, seizing the franchise or ousting the wrongful possessor; the fine being nominal only’ ” and such “without any special legislation to that effect, has always been its character in many of the States of the Union.”
In some States, while it is treated as criminal in form, it is used as a civil remedy only.
To justify the employment of quo warranto to try title to office, it is essential that the office be such as the law deems of a public nature. 32 Cyc. 1421.
The English view is that offices in private corporations are not of a public nature. See Reg. v. Mousley, 8 Q. B. 946. Such is also the view taken in Canada.
Ex parte
Gilbert, 15 N. B. 29 (cited in 51 L. R. A. [N. S.] 1127) ; Reg. v. Hespeler, 11 U. C. Q. B. 222.
In the case of Brooks v. State, 26 Del. (3 Boyce) 1, 79 Atl. Rep. 790, 51 L. R. A. (N. S.) 1126, the court, speaking through Mr. Justice Wooley, said in substance that the remedy by information in the nature of quo warranto succeeded and later superseded the original remedy and was in use long before 9 Anne, Ch. 20 (1710), and that statute was not the origin of the proceeding by information; that the statute was limited in its territorial scope and conferred upon the courts jurisdiction to employ the remedy by information with respect only to those offices of a public and political character originally derived from the King that were enumerated in the preamble to the Act. The learned Justice stated that the statute was never in force in this or any other American Colony, hence the remedy by information which was adopted in the State of Delaware by reference to that of the common law was the common-law
remedy by information in the nature of a writ of quo warranto and not the statutory remedy. There is no doubt, said he, “that the remedy by information may not be invoked for the redress of mere private grievances * * * and can only be invoked when wrong has been done to the public.- Hence, it follows, if a wrong complained of be the usurpation of an office, it must be the usurpation of an office public in character, otherwise the people cannot be called upon in their sovereignty to petition for its redress.”
The court then proceeded to hold that the offices of a corporation created by special Act of the Legislature are offices of a public character within the meaning that the remedy by information in the nature of quo warranto lies against one who usurps such an office.
In the annotation to Brooks v. State, 51 L. R. A. (N. S.) 1127, it is stated that all other States except Massachusetts agree upon the point as stated in the Brooks case. See also Davidson v. State, 20 Fla. 784. In that caSe the office involved was the presidency of a benevolent corporation. Mr. Chief Justice Randall, speaking for the Court in that case, said: “Tested by the principles underlying the jurisdiction in question, an intrusion into an office of a merely private corporation may in this country be corrected by information with the same propriety as' in cases of
public
or
municipal corporations
(italics supplied). Since in both cases there is an unfounded claim to the exercise of a corporate franchise amounting to a usurpation of the privilege granted by the State. Indeed, the intrusion into a corporate office, created for the government and exercise of the franchise, cannot in principle be distinguished from a usurpation of the franchise itself.”
It is only by virtue of a statute, when the Attorney General refuses to begin the proceedings, that a person
other than the Attorney General may file an information or institute an action in the name of the State to determine a claimant’s right to the office. See 5447, C. G. L., 1927 (3582, R. G. S., 1920).
Now for the purposes of a proceeding in quo warranto, or information in the nature of quo warranto, all corporations private or municipal are upon a parity so far as the same may be regarded as deriving their powers or franchises from the State which renders the usurpation of an office in such corporation a matter of a public nature.
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Ellis, J.
— The City of St. Petersburg seeks by means of a writ of quo warranto based upon a petition signed in its name by its attorneys to test the authority by which R. H. Noel exercises the powers and functions of Chief of Police of the city.
In the petition the city was not joined by the Attorney General of the State, who refused an application by the city to him to allow the information to be brought in his name as Attorney General.
Upon the petition being presented to this Court it caused a rule
nisi
to be issued to Noel requiring him to show cause on a date named why the petition in the nature of quo warranto should not be permitted to be filed and due and orderly proceedings had thereon according to law.
Noel made a return to the rule in which he questions both the power of the court to issue the writ upon the informa
tion tendered as well as the propriety of a judgment of ouster in the event the court should issue the writ.
As stated by Mr. Justice Buford, the purpose of the Court in issuing the rule was to get the benefit of advisory argument on the question of the right of the municipality to maintain the proceedings without being joined by the Attorney General. The question therefore is whether a municipality upon discovering some person occupying an office in the city government, in possession of the office and records and files, who has usurped the powers and franchises of the office and refuses to surrender possession of it to' the duly constituted or appointed official, or who having been duly elected or appointed to an office and the office has been abolished or the term to which the person was elected or appointed has expired or he has been removed by proper authority of the city government, yet refuses to vacate the office and continues to exercise the powers appertaining to it and discharge its functions and enjoy its privileges, may the city obtain upon its application to the proper court a writ of quo warranto to oust the usurper and test his right or title to the municipal office without obtaining the consent of the Attorney General?
The ancient common law writ and remedy of quo warranto has been obsolete in England for centuries. See Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. Rep. 437, 28 L. Ed. 482.
It was originally a civil writ at the suit of the Crown and not a criminal prosecution. Its place was supplied by an information in the nature of a quo warranto which in its origin was “a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the Crown.” 3 Bl. Com. 263.
Mr. Chief Justice Waite in the case above cited said:
“Long before our Revolution, however, it lost its character as a criminal proceeding in everything except form, and was ‘applied to the mere purposes of trying the civil right, seizing the franchise or ousting the wrongful possessor; the fine being nominal only’ ” and such “without any special legislation to that effect, has always been its character in many of the States of the Union.”
In some States, while it is treated as criminal in form, it is used as a civil remedy only.
To justify the employment of quo warranto to try title to office, it is essential that the office be such as the law deems of a public nature. 32 Cyc. 1421.
The English view is that offices in private corporations are not of a public nature. See Reg. v. Mousley, 8 Q. B. 946. Such is also the view taken in Canada.
Ex parte
Gilbert, 15 N. B. 29 (cited in 51 L. R. A. [N. S.] 1127) ; Reg. v. Hespeler, 11 U. C. Q. B. 222.
In the case of Brooks v. State, 26 Del. (3 Boyce) 1, 79 Atl. Rep. 790, 51 L. R. A. (N. S.) 1126, the court, speaking through Mr. Justice Wooley, said in substance that the remedy by information in the nature of quo warranto succeeded and later superseded the original remedy and was in use long before 9 Anne, Ch. 20 (1710), and that statute was not the origin of the proceeding by information; that the statute was limited in its territorial scope and conferred upon the courts jurisdiction to employ the remedy by information with respect only to those offices of a public and political character originally derived from the King that were enumerated in the preamble to the Act. The learned Justice stated that the statute was never in force in this or any other American Colony, hence the remedy by information which was adopted in the State of Delaware by reference to that of the common law was the common-law
remedy by information in the nature of a writ of quo warranto and not the statutory remedy. There is no doubt, said he, “that the remedy by information may not be invoked for the redress of mere private grievances * * * and can only be invoked when wrong has been done to the public.- Hence, it follows, if a wrong complained of be the usurpation of an office, it must be the usurpation of an office public in character, otherwise the people cannot be called upon in their sovereignty to petition for its redress.”
The court then proceeded to hold that the offices of a corporation created by special Act of the Legislature are offices of a public character within the meaning that the remedy by information in the nature of quo warranto lies against one who usurps such an office.
In the annotation to Brooks v. State, 51 L. R. A. (N. S.) 1127, it is stated that all other States except Massachusetts agree upon the point as stated in the Brooks case. See also Davidson v. State, 20 Fla. 784. In that caSe the office involved was the presidency of a benevolent corporation. Mr. Chief Justice Randall, speaking for the Court in that case, said: “Tested by the principles underlying the jurisdiction in question, an intrusion into an office of a merely private corporation may in this country be corrected by information with the same propriety as' in cases of
public
or
municipal corporations
(italics supplied). Since in both cases there is an unfounded claim to the exercise of a corporate franchise amounting to a usurpation of the privilege granted by the State. Indeed, the intrusion into a corporate office, created for the government and exercise of the franchise, cannot in principle be distinguished from a usurpation of the franchise itself.”
It is only by virtue of a statute, when the Attorney General refuses to begin the proceedings, that a person
other than the Attorney General may file an information or institute an action in the name of the State to determine a claimant’s right to the office. See 5447, C. G. L., 1927 (3582, R. G. S., 1920).
Now for the purposes of a proceeding in quo warranto, or information in the nature of quo warranto, all corporations private or municipal are upon a parity so far as the same may be regarded as deriving their powers or franchises from the State which renders the usurpation of an office in such corporation a matter of a public nature. It follows therefore that if the Attorney General should decline to file an information to determine a claimant’s right to an office in a corporation which office it is alleged is occupied wrongfully, or usurped by another, the person claiming the office or the corporation whose right it is to direct its corporate affairs through its officers may under the provisions of the Statute, Sec. 5447,
supra,
file an information or institute an action in the name of the State against the person exercising the office setting up its own claim. Such is the holding in Beverly v. Hattiesburg, 83 Miss. 621, 36 South. Rep. '74.
The office of Chief of Police of the City of St. Peters-burg exists by virtue of the power of the city to create it, and the proceedings should be taken in the name of the power from which the office proceeds. Throop on Public Officers, Sec. 779.
The case of State,
ex rel.
Kansas City v. East Fifth St. Ry. Co., 140 Mo. 539, 41 S. W. Rep. 955, was one in which a franchise granted by the city for a street railway was sought to be forfeited. The court, speaking through Mr. Justice Burgess, said: “The city granted the franchise in the interest of the public and we see no reason why she should not be relator in the proceeding to have the franchise
forfeited in the interest of the public also, if the facts and circumstances in proof justify such a result.”
On the theory that the City of St. Petersburg, a municipal corporation, is the person injuriously affected by the conduct of Noel, the chief of police or person alleged to be usurping that office, the city is the proper person to bring the action under Section 5447, C. G. L.,
supra.
See State v. Huller, 23 N. M. 306, 168 Pac. Rep. 528.
The contention that the phrase “any person claiming title to an office” as used in the statute does not embrace for the purposes of this subject municipal as well as private corporations is too refined and technical to be sound as applied to a remedy provided by law for the ousting of a person from the occupation of an officer or the exercise of a franchise of a public nature to which he has no authority.
I think that the city has the authority in the circumstances to bring the information without joining the Attorney General.
Let the information be filed and proper process be issued.
Davis, C. J., and Terrell, J., concur.
Whitfield and Brown, J. J., concur specially.
Buford, J., dissents.