§ 16-118-105 — Usurpation of office or franchise - Vacation of charters

(a) In lieu of the writs of scire facias and quo warranto, or of information in the nature of a quo warranto, actions may be brought to vacate or repeal charters and prevent the usurpation of an office or franchise. (b) (1) Whenever a person usurps an office or franchise to which he or she is not entitled by law, an action may be instituted against him or her, either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise. (2) A person who continues to exercise an office after having committed an act, or omitted to do an act, of which the commission or omission, by law, created a forfeiture of his or her office, shall be subject to be proceeded against for a usurpation thereof. (3) (A) It shall be the duty of the prosecuting attorney to institute the actions mentioned in this section against all persons who usurp county offices or franchises where there is no other person entitled thereto or the person entitled fails to institute the action for three (3) months after the usurpation. (B) For usurpation of other than county offices or franchises, the action by the state shall be instituted and prosecuted by the Attorney General. (4) (A) (i) When a person is adjudged to have usurped an office or franchise, he or she shall be deprived thereof by the judgment of the court, and the person adjudged entitled thereto shall be reinstated in the office or franchise. (ii) No one shall be adjudged entitled thereto unless the action is instituted by him or her. (B) The court shall have power to enforce its judgment by causing the books and papers, and all other things pertaining to the office or franchise, to be surrendered by the usurper, and by preventing him or her from further exercising or using the office or franchise, and may enforce its orders by fine and imprisonment until obeyed. (5) When the usurper has received fees and emoluments arising from the office or franchise, he or she shall be liable therefor to the person entitled thereto, who may claim the fees and emoluments in the action brought to deprive him or her of the office or franchise or in a separate action. If no one is entitled to the office or franchise, the fees and emoluments may be recovered by the state and paid into the State Treasury. (c) The action to repeal or vacate a charter shall be in the name of the state and brought and presented by the Attorney General or, under his or her sanction and direction, by an attorney for the state. (d) The pleadings in the actions named in this section are not required to be verified by affidavit unless prosecuted by a private individual.

Legislative History

Civil Code, §§ 522, 523, 525-531; C. & M. Dig., §§ 10325-10332; Pope's Dig., §§ 14325-14332; A.S.A. 1947, §§ 34-2201 -- 34-2209; Acts 2003, No. 1185, § 244.