
    [Philadelphia,
    January 8, 1827.]
    The COMMONWEALTH, on the relation of CLEMENTS and others, against ARRISON and others.
    information in nature of a quo warranto.
    Information in nature of a quo -uiarremto, lies against persons acting as trustees of an incorporated church, hut the court will grant or refuse it, according to circumstances.
    A rule was granted by the court, in this case, against Matthew Arrison and others, the defendants, to show cause why an information in nature of a quo warranto, should not be filed against them for exercising the office of “ Trustees of the Ninth Presbyterian Church in PhiladelphiaThe defendants now objected, in the first instance, that the office they exercised was not the subject of an information of this description; and the point was argued by
    
      P. A. Browne and T. Sergeant, for the relators, (with whom was Randall,) and Dwight and Binney, for the defendants.
    
      Arguments for the defendants. The ancient quo—warranto issued where a franchise of the crown was usurped by an individual, and the king alone could proceed against the usurper. A franchise is defined to be a royal privilege in the hands of a subject 2 Bl. Com. 37. Finch, 164, 166. 2 Inst. 493, 496. 1 Bulst. 55. The extent of an information in nature of a quo warranto, is exactly the same as the ancient writ: it is not granted, except in cases where the writ lay. Commonwealth v. Murray, 11 Serg. & Rawle, 73, 74. 15 Johns. 387. The sole object of the writ was to resume the franchise which had been usurped. Therefore all the cases on this subject, collected by Comyns in his Digest, are of usurpation on the crown by exercising a public office. 6 Com. Dig. 157. 2 Johns. Ch. 377. It has therefore been decided, that an information of this kind did not lie in case of private rights, where no franchise of the crown has been invaded. It will not lie for, erecting a warren. Rex v. Sir William Lowther, 1 Stra. 637. Nor for forfeiture of the place of recorder by non-attendance. Lord Bruce’s Case, 2 Str. 1161. Nor for claiming an exclusive right of ferry. Rex v. Reynoll, 2 Str. 1161. Nor in the case of churchwardens, Rex v. Daubeny, 2 Str. 1196; which may be considered a case strictly analogous to the present, and has been again decided in England since. See 15 Johns. 369. Such information lies not for holding court-Ieet, and the reason given is, that it is a private right, which may be tried in a civil action. Rex v. Canes, Andrews’s Rep. 14. It will not lie for opening a road without compensation, 2 Johns. 190. The statute of Jlnne gave this remedy to private persons, and that statute does not extend to Pennsylvania. Stat. 9 Ann. c. 20. 3 Bl. Com. 264. 2 Kyd on Corp. 424. In the present case, there has been no usurpation of a franchise against the state. The state has granted the franchise, by charter under the act of 1791, and the only question is, which of the parties may exercise this franchise of being trustees of the corporation. Many of our corporations, under the act of the 6th of April, 1791, (Purd. Dig. 129,) are private corporations, and ave so regarded both by our legislature and at common law; and, in the exercise of a sound discretion, even if the court have the power, they would only grant this writ in cases of offices which are usurped against the commonwealth, or the public are interested. 2 Lord Raym. 1409, Cas. temp. Hard. 347, 1 W. Bl. Rep., are all cases in which informations have been refused on this ground, or granted on the ground that the offices were of public concern. Informations are not matters of course, but discretionary. 3 Bac. Ab. 644. Hawk. P.C. book 2, c. 26, sec. 9. People v. Richardson, 4 Cowen, 102. What power have these trustees, who are the object of the present dispute ? They have the care of the church property, and are limited to temporalties; but the property is not in them. The public is no way concerned. They could not even support an ejectment. Let those pewholders w'ho think the defendants improperly elected, pay their rent to the relators. There are probably not less than a thousand private corporations in Pennsylvania, and their disputes will drive all other business out of court; or else these disputes'as to annual offices cannot be decided within the year, and therefore relief cannot be given. This court is not committed by former decisions: the point is still open. The cases in Pennsylvania have passed sub silentio: several of them relate to offices of a public kind; such as county treasurer, inspectors of prisons, county commissioners, and collectors of taxes. In Commonwealth v. Murray, 11 Serg. & Rawle, 73, the court evince a strong leaning against this remedy, in cases like the present.
    
      Jirguments for the relators. A quo warranto lies wherever a franchise is usurped against the king’s prerogative. 2 Inst. 282. 9 Co. 28, a. Yelv. 191. Finch, 164, 3 Bl. Com. 262. Now, a franchise is defined to be a royal privilege in the hands of a subject. Finch, 164, 3 Bl.Com. 262, and a privilege of exercising a corporate trust comes within the principle. Accordingly, the court has exercised the power now asked for. They did so, in the ease of the German Lutheran Church, Commonwealth v. Woelper and 
      
      others, 3 Serg. & Rawle, 29, where judgment of ouster was rendered upon an information against persons exercising the office of churchwardens and vestrymen after a trial: and a fine of six shillings and eight pence was imposed without costs. Ib. 52. In Commonwealth v. Cain and others, 5 Serg. & Rawle, 530, an information against the defendants, as vestrymen of a church, was refused on the merits, and there was no question made about the propriety of granting the information, if it had been a proper case for it. In the case of Commonwealth v. Cain and others, 11 Serg. & Rawle, 73, the court for the first time express doubts concerning the remedy by information; but that was the case of a minister, and it was refused on a ground that was decisive against the relators there, namely, that they did not claim under the charter by which the defendant claimed. There are many previous instances of the application of this remedy by our Supreme court; such as against the treasurer of Cumberland county, in 1729, where it was said by Shikpen, J., to be the first application of the kind. Commonwealth v. Wray, 1 Dall. 490: against the defendant for exercising the office of Recorder of Philadelphia, which was refused on the merits. Commonwealth v. Dallas, 4 Dall. 229: against the inspectors of the prison of Philadelphia. Commonwealth v. Douglass, 4 Binn. 117: and again, the case of an information granted against a collector of taxes, an office of a subordinate grade and limited sphere. Commonwealth v. Browne, 1 Serg. Rawle, 382. In Commonwealth v Union Insurance Company of Newburyport, 5 Mass. Rep. 230, Chief Justice Parsons says, “.informations of this kind are properly grant-able for the purpose of inquiring into the election or admission of an officer, or member of a corporation, when moved by any person interested in, or injured by such election or admission.” 3 Mass. Rep. 285, recognises the same principle'. In England, this mode of proceeding has not been confined to the limits supposed. In Rex v. Nicholson, 1 Str. 299, an information was granted against persons who acted as trustees under an act of parliament for enlarging and regulating the port of Whitehaven: and it is said, that an information is always granted where a new jurisdiction or public trust is executed without authority; and various cases are given in Kyd on Corp. 395, 417, 418, 419,421.. In the present case there is no adequate remedy, but by information: many acts may be done by officers de facto, if suffered to continue, which cannot be avoided. The money received by them from the pews cannot be recovered back by an action. The public is greatly concerned in these corporations: they are numerous, and large and valuable interests of every description are involved in them. Suppose individuals illegally chosen take possession of the funds of a bank, the mischief they may do is immense, if there is no summary remedy for their removal. This court will not be deterred by the inconvenience of taking this jurisdiction, arising from multiplicity of business and the difficulty of the question, since great good results from the exercise of this power. We have not had altogether a dozen cases of informations of this kind in fifty years. No distinction can be drawn between public and private corporations; or, rather, all are public, since they are emanations from the supreme power of the community, and are all established and guarded by a public law.
   The opinion of the court was delivered by

Tilghman, C. J.

A rule was laid on the defendants, to show cause why an information in nature of a writ of quo warranto should not be filed against .them, for exercising the office of Trustees of the Ninth Presbyterian Church in Philadelphia.”

Before entering into the merits of the ease, the counsel for the defendants made a preliminary point, viz. that the office exercised by the defendants was a mere private matter, in which the public had no concern, and therefore not the subject of an information. This point was fully and well argued, and the court has been furnished with all the learning to be found in the books on the subject. The statute of 9 Jinn. eh. 20, not having been extended to Pennsylvania, the court must derive its power from the common law. Bull. N. P. 211. That, however, is of little importance, as the better opinion is, that the statute gave no new jurisdiction, but was made for the purpose of regulating informations, and making the remedy more effectual, easy, cheap, and expeditious, in cases of persons acting as corporation officers. An information is said to be grantable, only where the ancient writ of quo warranto would lie, and that writ, according to the argument of the defendants, was confined to cases where there was a usurpation of the king’s prerogative, or of one of his franchises, or a misuser or non user of some right or privilege granted by the crown. A franchise is a word of extensive signification. It is defined by Finch, whom.all subsequent writers have followed, to to be “ a royal privilege in the hands of a subject.” Finch, 164. Franchises are divers, says Finch, and almost infinite. Of such sort are the liberty of holding a court of one’s own; the right of warren in another’s land; the right of holding markets, fairs, and taking toll, &c. &c. The commonwealth stands in the place of the king, and has succeeded to all the prerogatives and franchises proper for a republican government, and those only; for many branches of the royal prerogative would be altogether improper in this country. Informations have been granted in England, in almost all cases where the public were interested, in some of which it'would be difficult to show, that any prerogative or franchise of the king had been invaded. As, in the case of the mayor and common council of Hertford, who took upon them to make strangers free of the corporation, without being qualified according to the charter. The reason assigned by Butter for granting this in* formation, was, “ because the injured freeman of the town had no other way of remedying themselves, or of trying the right.” To be free of a corporation, was certainly no royal franchise; but perhaps, in a very large sense, it might be said that the king’s prerogative was invaded, when his charter was violated, by admitting one as a freeman contrary to its provisions, if that principle be correct, it will have an important bearing on the case before the court. An information was granted against certain persons for acting as trustees under an act of parliament for enlarging and regulating the port of Whitehaven, 1 Str. 299. The granting permission to file informations of this kind, on the application of private persons, is matter of discretion, and the court will refuse it in cases of little import, or where the injury is of a private nature. It was refused in Sir William Lowther's Case, (2 Lord Raym. 1409, 2 Kyd on Corporations, 418,) “for setting up a free warren,” on the ground that it was of a private nature, and therefore proper to be prosecuted only in the name of the attorney general, if the king should think fit. So, in the King v. Hansell, (9 Geo. 2. Cas. temp. Hardw. 247,) Lord Hardwicke thus expresses himself: “The court, indeed, have themselves made this distinction, to grant informations for public usurpations; but if it is only of a private franchise, not concerning the public government, as a fair, &c., the court has sometimes refused them, and directed an application to the attorney general.” It is observable, that Lord Hardwicke does not here deny the right of the court to grant the information, but affirms it. Whether to grant, or refuse it, in case of a churchwarden, has been a vexatious question in England, but has been finally settled against granting it. I find no instance of an information in nature of a quo warranto., in that country, except in a case of a usurpation of the king’s prerogative, or of one of his franchises, or where the public, or at least a considerable number of people, were interested. Neither do I find any case in which it has been denied, that the court may, in its discretion, grant it, where an office is exercised in a corporation, contrary to the charter. In England, the number of corporations is very small indeed, compared with the United States of America. Consequently, the quantity of that kind of business which may be brought into our courts will be much greater than theirs. But that alone is not a sufficient reason for rejecting it. .We are now to decide a general question on the right of the court; not on the expediency of exercising that right, either on the present, or any other case. Now, to establish it as a principle, that no information can be granted in cases of what the counsel call private corporations,' might lead to very serious consequences. Perhaps it may be said, that banks, and turnpike, canal, and bridge companies, are of a public nature; but yet théy have no concern with the government of the country, or the administration of justice. They are no farther public, than as they have to do with great numbers of people. But if numbers alone is the criterion, it will often be difficult to difficult to distinguish public from private corporations. Let us consider churches, for example. In some, the congregation is very numerous, in others very small. How is the court to make the line of distinction. If you say that court has the right in both cases, to grant or deny the information, according to its opinion of the expediency, there is no difficulty as to the right. But if it be alleged that there is a right in one case, and not the other, the difficulty will be extreme. I strongly incline to the opinion, that in all cases where a charter exists, and a question arises concerning the exercise of an office claimed under that charter, the court may, in its discretion, grant leave to file an information. Because, in all sueh cases, although it cannot be strictly said that any prerogative or franchise of the commonwealth has been usurped, yet, what is much the same thing, the privilege granted by the commonwealth has been abused. The party against whom the information is prayed, has no claim but from the grant of the commonwealth, and an unfounded claim is a usurpation, under pretence of a charter, of a right never granted. Having given my sentiments of the principle on which the present question turns, I will now consider the authorities in our own courts, which I think bear me out in the view I have taken of it. The first instance of an information in nature of a quo warranto, was in the year 1799, in the case of The Commonwealth v. Wray, 3 Dall. 390. The defendant exercised the office of treasurer of Cumberland county. The next reported case, is The Commonwealth v. Douglass and others, inspectors of the prison of Philadelphia, in the year 1803. The information was granted. 1 Binn. 77. In the year 1811, an information was asked and refused, in The Commonwealth v. Smith, clerk of the market of Pittsburg, 4 Binn. 117. The sole reason of the refusal was, that the Supreme Court had no right to try an issue at Pittsburgh, otherwise the information would have been granted. In 1815 an information Was granted against Liberty Browne, who exercised the office of collector of taxes in Philadelphia. The Commonwealth v. Woelper-, $c. is very much in point. There, not only was an information-granted against the defendants, who acted as vestrymen of the German Lutheran Church of Zion, but on a trial they were convicted, and judgment of ouster given against them. If it be said, that the defendants made no objection to the power'of the court, it is true; but yet it is of some weight, that the able counsel for the defendants, in a case much litigated, either did not think of the objection, or supposed it was not tenable. ' Next came the ease of The' Commonwealth v. Cain and others, vestrymen of St. Thomas’s African Episcopal Church of Philadelphia, in the year 1820, 5 Serg. & Rawle, 510: the information was granted Without objection. Last qf all was The Commonwealth v. Mur ray, who claimed to be the minister of the Wesley Church, (in 1824, 11 Serg. & Rawle, 73.) There, the point now before us was directly in question for the. first time. ' The information was refused, because the party who moved for it claimed in opposition to the charter under which the defendant held. The court declined an opinion on the right to grant the information, but spoke of it as undecided, and worthy of consideration. That is the only case in which there has been any suggestion of doubt. In all the other, the right was taken for granted. From the eases cited in this argument, from the Massachusetts and New York reports, I conclude that the judges of these states are in favour of the right to grant the information. I am of opinion, that this court has the right of granting, and at the same time the right of refusing, according to circumstances.  