Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/467

 CHAP. VIII.] CORPORATION AND STATE. [§ 460. bar to the enforcement of a forfeiture by the state. 1 " Duties required by the act of incorporation are in the nature of conditions annexed to the grant of the franchise. Such condi- which corporate rights may be ex- ercised, gives no new substantial rights. In re New York Elevated R. R. Co., supra. Compare Matter of Brooklyn W., etc., R. R. Co., 75 N. Y. 335. Legislative waiver of a forfeiture, by acts of recognition, cures defects in the original organ- ization of the corporation. Bashor v. Dressel, 34 Md. 503; Kanawha Coal Co. v. Kanawha and Ohio Coal Co., 7 Blatchf. 391; see also Attorney- General v. Petersburg, etc., R. R. Co., 6 Ired. L. 470; State v. Fourth N. H. Turnpike, 15 N. H. 162. E. g., by granting an amendment to the char- ter. Farnsworth v. Lime Rock R. R. Co., 83 Me. 440. But the doctrine of waiver of a forfeiture does not apply when by the terms of the charter the franchise absolutely determines on failure to perform the conditions; in such case the corporation has ceased to exist. State v. Old Town Bridge Co., 85 Me. 17; State v. Fourth N. H. Turnpike, 15 N. H. 162, 166. 1 People v. Pullman Co., 175 111. 125; State v. Pawtuxet Turnpike Co.. 8 R. I. 521. These cases may seem not to accord with the English cases, which hold that informations in the nature of a quo warranto cannot be maintained against a person who has enjoyed a corporate office or the privilege of being a corporator, for a number of years. The number of years was first fixed at twenty, and subsequently reduced to six. Win- chelsea Causes, 4 Burr. 1962, 2022, 2121; Rex v. Dicken, 4 T. R. (Durn. & East) 282; Rex v. Peacock, ib. 684; but Lord Mansfield, who de- cided the Winchelsea Causes, inti- mated that this rule did not apply where the action was brought by the crown; as he said: "Indeed no length of usurpation shall affect the crown. Nullum tempus occurrit regi . . . . the crown may still bring a quo warranto." Rex v. Wardroper, 4 Burr. 1965. In regard to the questions under discussiun in the last few pages, see generally the chapters in Angell and Ames on Corp. on " Mandamus " and " Quo Warranto; " see, also, State v. Southern Pacific R. R. Co., 24 Tex. 80; Danville, etc., Plank Road Co. v. State, 16 Ind. 456; State v. Council Bluffs Ferry Co., 11 Neb. 354; Peo- ple o. Improvement Co., 103 111. 491. An action in the nature of a quo warranto is in effect a civil not a criminal action. Ames v. Kansas, 111 U. S. 449. Quo warranto should be brought in the name of the state against the corporation. Neither stockholders nor officers need be made parties. New Orleans Deben- ture Redemption Co. v. Louisiana, 180 U. S. 320. When the suit is brought for usurping powers not granted, it should be against the corporation and not against an offi- cer. Smith v. The State, 21 Ark. 294. Quo warranto will not lie against the members of the corpo- ration alone; the corporation must be a party. State v. Taylor, 25 Ohio St. 280; People v. Montecito Water Co., 97Cal. 276. As to the mode in which proceed- ings or informations in the nature of quo warranto are carried on, little of general value can be said here. It is a matter of practice, and usually of local or statutory practice. When a 447