Houston v. Neuse River Navigation, 53 N.C. 476, 8 Jones 476 (1862)

June 1862 · Supreme Court of North Carolina

53 N.C. 476, 8 Jones 476

WILLIAM J. HOUSTON, Solicitor, v. THE NEUSE RIVER NAVIGATION COMPANY.

An information in the nature of a writ of quo warranto against a corporation, to have its privileges declared forfeited, because of neglect and abuse in the exercise of them, must be filed in the name of the Attorney General of the State,' and cannot be instituted in the name of a solicitor of a judicial circuit.

In a matter of a public nature, the officer, who acts for the State, does not pay costs to the other party.

This was an INFORMATION in the nature of a quo warranto, heard at the Fall Term, 1861, of Craven Superior Court.

The information sets forth divers causes, why the corporation should be considered as having forfeited its privileges, but from the view taken of the case in this Court, neither of these allegations, nor the grounds of defense, relied on in the answer,' are material to be stated. The cause was disposed of in the Court below by ajpro forma judgment, that the information be dismissed at the plaintiff’s costs, from which plaintiff appealed.

J. W. Bryan, for the plaintiff.

Attmore, for the defendant.

Battle, J.

This is an information filed on behalf of the State by the plaintiff, as solicitor of the second judicial circuit, in the Superior Court of law for the county of Craven, against the defendant, to enquire by what warrant the company is now exercising its corporate franchises, it being alleged that it has forfeited them. The information was filed by leave of the Court, first had and obtained. The defendant appeared, by attorney, and put in an answer, and upon the hearing in the Court below, the information pro forma, was ordered to be dismissed at the plaintiff’s costs; and the plaintiff appealed to the Supreme Court.

Upon the argument here, it was objected that the information was improperly filed by a solicitor, and it is contended that it must be dismissed, because it was not instituted under the order of the General Assembly, or the Governor, or the Attorney General of the State, as directed by the 25th section of the 26th chapter of the Eevised Code. The objection is, we think, well taken, and is fatal to the proceeding in the present form. The information is in the nature of a writ of quo warrcmto, instituted on the behalf of the sovereign, and it can be used only in the cases and in the manner prescribed by the sovereign. It follows that, as the Legislature has prescribed in the chapter and section of the Eevised Code, to which reference has been made, that an information filed against a corporation for the purpose of having its franchises declared to have been forfeited by abuse or neglect, must be by the sanction of the General Assembly, or the Governor, or the Attorney-General, it cannot be filed by any other authority or by any other officer. There are, indeed, cases in which an information in the nature of a writ of quo warranto, may be filed by a solicitor as well as by the Attorney-General, bj.it it is in consequence of an express provision of law to that effect. Thus, when a person usurps an office, or intrudes into it, or is found unlawfully holding or executing it, the 95th chapter of the Revised Code, section 101st, authorises the Attorney-General or a solicitor for the state,do institute a proceeding of this kind against him for the purpose of trying his right to it. The authority thus given expressly to a solicitor, in a particular case, is an irresistible argument to prove that he has it not in other cases, where it is not only not given to him, but expressly conferred upon another.

The order, dismissing the information, is affirmed, but it is reversed as to the costs. In a matter of a public nature, the officer, who acts for the State, does not pay costs to the other party; State v. King, 1 Ire. 22; State v. Banner, Busb. 257.

Per Curiam,

Information dismissed.