Quo warranto

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In law, especially English and American common law, quo warranto (Medieval Latin for "by what warrant?") is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right, power, or franchise they claim to hold. Quo warranto is also used, with slightly different effect, in the Philippines.

Early history[edit]

With the spread of royal justice in the 12th and 13th centuries, private franchises and liberties were increasingly called upon to uphold the king's peace: to act against "malefactors and peace breakers, so that it may appear that you are a lover of our peace".[1] From 1218 onwards,[2] royal Eyres also began using the old writ of quo warranto – a court order to show proof of authority, as for example (literally) "By what warrant are you the sheriff?" – to investigate the origins of such franchises.[3] An inquest of 1255 began examining such liberties nationwide;[4] and the same enquiry was taken up again by King Edward I of England in 1278, when he decreed in the Statute of Gloucester that "We must find out what is ours, and due to us, and others what is theirs, and due to them".[5]

From one point of view this can be seen as an attempt to investigate and recover royal lands, rights, and franchises in England,[6] in particular those lost during the reign of his father, King Henry III of England.[7][8] From another, it was less of an attack on franchises as a clarification of them: in Hilda Johnstone's words, "Edward's aim, it is clear, was from the first not abolition but definition".[5]

A similar ambiguity surrounds the role of the justices that, from 1278 to 1294, Edward dispatched throughout the Kingdom of England to inquire "by what warrant" English lords claimed their liberties and exercised jurisdiction, including the right to hold a court and collect its profits. Some of the justices demanded written proof in the form of charters, others accepted a plea of "immemorial tenure";[9] and resistance [10] and the unrecorded nature of many grants meant that eventually, by the Statute of Quo Warranto (1290), the principle was generally accepted that those rights peacefully exercised since 1189 – the beginning of the reign of Richard I, which is the legal definition in England of the phrase "time immemorial"[6][11] – were legitimate.[12]

Publication[edit]

The Quo warranto pleas from the reigns of Edward I, Edward II and Edward III were published by the Record Commission in 1818.[13]

Later developments[edit]

The most famous historical instance of quo warranto was the action taken against the Corporation of London by Charles II in 1683.[14] The King's Bench adjudged the charter and franchises of the City of London to be forfeited to the Crown, though this judgment was reversed by the London, Quo Warranto Judgment Reversed Act 1689 shortly after the Glorious Revolution.

But the remodelling of the City of London was only part of a wider remodelling of some forty chartered parliamentary boroughs by the Crown[15] – a policy taken up again in 1688 by James II, when some thirty-five new charters were issued after quo warranto produced the surrender of the old ones.[16] This Quo Warranto remodelling or 'dissolution' of the parliamentary corporations gave point to the claim by William III that "our expedition is intended for no other design but to have a free and lawful parliament assembled", and underpinned the charge in the Bill of Rights that James had been "violating the freedom of election by members to serve in parliament".[17]

Nineteen century[edit]

Ohio passed a quo warranto act in 1838. Penalties for charter abuse included removing corporate privileges or even charter dissolution. Corporations were found guilty in many quo warranto cases.[18]:42 Standard Oil created a trust in 1882, evading state laws against a corporation owning stock in another corporation. David K. Watson as Ohio Attorney General sought to revoke Standard Oil's charter.[18]:49 The Ohio Supreme Court ruled against Standard Oil's trust but retained its charter in 1892. After Ohio filed contempt of court for defying the trust ruling in 1898, Standard Oil moved to New Jersey until broken up in 1911.[18]:50

Ohio Quo Warranto Cases
The State of Ohio ex rel. the Attorney-General v. The Seneca County Bank, 5 OS 154 (1855)[18]:42
State v Hazelton & L.R. Co., 40 OS 504 (1884)[18]:44
Ohio ex rel. v. Railway Company, 53 OS 189 (1895)[18]:44
State ex rel. Monnett v. Capital City Dairy Co., 62 OS 350 (1900)[18]:45
State of Ohio, ex rel. Wade H. Ellis, Attorney-General, v. Union Central Life Insurance Company, 13 Ohio Cir. Ct. (N.S.) (1910)[18]:45
State ex rel. Crabbe v. Thistle Down Jockey Club, Inc., 114 OS 582 (1926)[18]:47
Trustees of McIntire Poor School v. Zanesville Canal & Mfg Co., 9 OS 203 (1839)[18]:86
State ex rel. Atty. Gen. v. Pennsylvania & O. Canal Co., 23 OS 121 (1872)[18]:86
State ex rel. Atty. Gen. v. Central Ohio Mut. Relief Ass'n., 29 OS 399 (1876)[18]:86
Meader Furniture co. v. Rowland, 38 OS 269 (1878)[18]:86
The State v. The Pioneer Life Stock Company, 38 OS 347 (1882)[18]:86
Atty. Gen v. Western Union Mut. Life & Ass. Soc., 47 OS 167 (1890)[18]:87
State ex rel. Atty. Gen. v. Fidelity & Casualty Ins. Co. of New York, 49 OS 440 (1892)[18]:87
State ex rel. Schwartz v Ohio & M.R. Co., 3 Ohio C.D. 516 (1892)[18]:87
Richards v Ackerman, 51 OS 163 (1894)[18]:87
Richards v. Pittsburgh, C., C. & St. L.R. Co., 53 OS 189 (1895)[18]:87
State ex rel. Atty. Gen. v. Dayton Traction Co., 64 OS 272 (1899)[18]:87
State ex rel. Toledo Ry. & Light Co., 73 OS 356 (1902)[18]:88
State ex rel. Sheets v. Toledo Home Tel. Co., 72 OS 60 (1905)[18]:88
State ex rel. Atty. Gen. v. Hocking Valley Ry., 21 Ohio C.D. 175 (1909)[18]:88
State ex rel. Atty. Gen. v. National Cash Register Co., 21 Ohio C.D. 637 (1910)[18]:88
In re. Mansfield Ry., Light & Power Co., 3 Ohio App. 253, 21 Cir, Ct. R., N.S. 95, affirmed 112 N.E. 1085, 92 OS 530 (1914)[18]:88
Price v. Ohio Automobilists Protective Ass'n Co., 103 OS 677 (1921)[18]:88
In re. Sentinel Pub. Co., 113 OS 608 (1925)[18]:89
Dworken v. Apartment House Owners' Association of Cleveland, 28 Ohio N.P. (N.S.) 115 (1931)[18]:89
State ex rel. Bettman v. Miami Conservancy Dist., 125 OS 201 (1932)[18]:89
Elsaesser v. George Golde Inc., 16 O.L.A. 715, 187 N.E. 7, 127 OS 90 (1933)[18]:89
Powers v. Capital Endowment Co., 129 OS 654 (1935)[18]:89
State ex rel. Powers v. Capital Endowment Co., 129 OS 654 (1935)[18]:89

Modern quo warranto[edit]

While quo warranto remains in use in the United States, the Philippines, and other jurisdictions, in some jurisdictions that have enacted judicial review statutes, the prerogative writ of quo warranto has been abolished.

Australia[edit]

Quo warranto writs have been abolished in the Australian states of New South Wales (as of the Supreme Court Act 1970)[19] and Queensland (as of the Judicial Review Act 1991).[20]

United States[edit]

In the modern United States, quo warranto usually arises in a civil case as a plaintiff's claim (and thus a "cause of action" instead of a writ) that some governmental or corporate official was not validly elected to that office or is wrongfully exercising powers beyond (or ultra vires) those authorized by statute or by the corporation's charter.

Philippines[edit]

Jose Calida, above, is credited with substantially expanding the quo warranto power, after his arguments were looked upon with favor by the Supreme Court in Republic v. Sereno.

A quo warranto petition was, before the appointment of Jose Calida as Solicitor General, a very seldom used Philippine extraordinary writ. Its name derives from the Latin question quo warranto, which means "by what authority?"[note 1][21] In its early days, during the American colonial period, quo warranto was mostly used to challenge a democratic election, that is, to make the claim that the person who is holding an office is a usurper, and that someone else deserves the office, e.g., due to electoral fraud or ineligibility.[22] Indeed, this is the only way the term is used in law professor Ernesto C. Salao's[note 2] widely cited 858-page book The 1987 Constitution of the Republic of the Philippines (2001 ed.).[23]

It has come to be understood that it can be used in extraordinary cases to unseat judicial appointees, and impeachable officials, not only to challenge elections. Some, such as Ranhilio Aquino,[note 3] argue this due to the fact that the President and Vice President were explicitly enumerated as vulnerable to quo warranto by the Supreme Court sitting as the Presidential Electoral Tribunal,[24][25] and, unlike many other constitutions, Article 11 of the 1987 Constitution does not exclusively grant the power of impeachment to Congress.[24]

Quo warranto of non-elected appointees[edit]

Quo warranto petitions, when successful, do not "remove" someone from office—they declare the very appointment itself null and void ab initio, meaning that the office was never legally held as it has been declared to have been assumed under false pretenses.[26] This is precisely what happened in the highly controversial quo warranto petition against Maria Lourdes Sereno. Sereno had served on the Supreme Court of the Philippines as de facto Chief Justice of the Philippines from 2012 to 2018, and as a regular Associate Justice since August 2010, when she was appointed by President Benigno Aquino III. Instead of removing Sereno from office by the mechanism of impeachment, Callida chose to use what one justice called this "road less traveled" of quo warranto.

Corporate franchise quo warranto[edit]

Quo warranto has expanded in the Philippines beyond a mere judicial branch replacement for impeachment, however. It was also used, once again by Calida, to challenge the continued operation of ABS-CBN after the expiration of its Congressional franchise. This use of quo warranto in a dispute over licensure was as novel as it was literal: it strips away the traditions surrounding the use of quo warranto and refocuses quo warranto on the meaning of its name, asking, by what legal authority does ABS-CBN continue to operate? While the expiration of the franchise and later actions by the National Telecommunications Commission made Calida's quo warranto petition moot and academic, the de facto result of the legal onslaught was the same: ABS-CBN did not return to the air.

See also[edit]

References[edit]

  1. ^ Henry III, 1237, in Helen Cam Law-finders and Law-makers (London 1962), pp. 38–39.
  2. ^ Helen Cam, Law-finders and Law-makers (London 1962), p. 39.
  3. ^ S. H. Steinberg (ed.), A New Dictionary of British History (London 1963) p. 299.
  4. ^ Helen Cam, Law-finders and Law-makers (London 1962) pp. 39–40.
  5. ^ a b J. R. Tanner (ed.), The Cambridge Medieval History, Vol VII (Cambridge, 1932), p. 394.
  6. ^ a b Clanchy From Memory to Written Record, p. 3.
  7. ^ Harris, Nicholas; Charles Purton Cooper (1831). Public Records. p. 74.
  8. ^ Carpenter, David A. (1996). The Reign of Henry III. p. 88. ISBN 978-1-85285-137-8.
  9. ^ Helen Cam, Law-finders and Law-makers (London, 1962), p. 41.
  10. ^ Clanchy, From Memory to Written Record, p. 7.
  11. ^ Clanchy From Memory to Written Record, p. 152.
  12. ^ S. H. Steinberg (ed.), A New Dictionary of British History (London, 1963), p. 299.
  13. ^ Illingworth 1818.
  14. ^ Shortt, John (1888), Informations (criminal and quo warranto) mandamus and prohibition, American law series, C. H. Edson and company, p. 137.
  15. ^ J. H. Plumb, The Growth of Political Stability in England (London 1986) pp. 55-6.
  16. ^ M. Ashley, The Glorious Revolution (London, 1966), p. 112.
  17. ^ M. Ashley, The Glorious Revolution (London, 1966) pp. 205–207.
  18. ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac ad ae af Coleridge, Greg (2003). Citizens Over Corporations: A Brief History of Democracy in Ohio and Challenges to Freedom in the Future (second ed.). Ohio Committee on Corporations, Law & Democracy.
  19. ^ Sn 12 Quo Warranto Supreme Court Act 1970, New South Wales Consolidated Acts.
  20. ^ Sn 42 Abolition of quo warranto, Judicial Review Act 1991, Queensland Consolidated Acts.
  21. ^ John Van de Kamp (1990). Quo warranto: resolution of disputes -- right to public office (PDF). Sacramento: California Attorney General's Office. p. 1.
  22. ^ Mack, William; Hale, William Benjamin (1920). Corpus Juris: Being a Complete and Systematic Statement of the Whole Body of the Law as Embodied in and Developed by All Reported Decisions. Vol. 20. New York: American Law Book Company. p. 210.
  23. ^ Ernesto C. Salao (2001). The 1987 Constitution of the Republic of the Philippines (2001 ed.). Quezon City: Rex Book Store. pp. xxvii, 714, 717. ISBN 978-971-23-3252-4.
  24. ^ a b Aquino, Ranhilio (2018-04-13). "Much ado about quo warranto". Manila Standard. Retrieved 2020-06-09.
  25. ^ "Rules of the Presidential Electoral Tribunal". Rule 16, Resolution No. AM 10-04-29-SC of May 4, 2010. Supreme Court of the Philippines. p. 12.
  26. ^ Cabato, Regine (2018-06-20). "Lawyers: Supreme Court cases with tiebreaking Sereno vote can be questioned". CNN Philippines. Retrieved 2020-06-09.

Notes[edit]

  1. ^ Sometimes rendered as "by whose authority?", although quo literally means "where" or "why".
  2. ^ As of January 2018, associate dean of the Polytechnic University of the Philippines College of Law.
  3. ^ As of 2011, dean of the San Beda University College of Law. See Rex G. Rico (2011-11-24). "Value of a non-lawyer's opinion on purely legal issues". Philippine Daily Inquirer. Retrieved 2020-06-09.

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