Quo warranto

“ A criminal case as distinguished from a civil case is one in which a person is charged with a crime or felony. A writ of error is an appeal ordered on the ground of an error or mistake in the proceedings of a court, either as to a matter of fact or a point of law. A supersedeas is a writ, or order, to suspend the powers of an officer, or to stay—that is, stop—action under another writ.
Quo warranto is a Latin phrase, the English of which is by what warrant or authority. In law it means a writ brought before a court to inquire by what authority a person or corporation exercises certain powers. ”

“ These authorities and the general practice indicate that in most of the American states only a nominal fine can be imposed in civil quo warranto proceedings. We shall not enter upon any discussion of the question as to the character of the proceeding nor the amount and nature of the money judgment. For, in Missouri, and prior to the decision in this case, the rulings were to the effect that the supreme court of Missouri had jurisdiction not only to oust, but to impose a substantial fine in quo warranto. ”

“ But if the words 'when not in contravention of state or local law' could be regarded as giving any warrant for a quo warranto proceeding by a state officer in a state court, I should say they would do no more than to permit such a proceeding to determine whether the privilege was in contravention of the state law. There is nothing in them which points even remotely to a purpose to sanction a proceeding to determine the power of Congress under the Constitution to clothe a national bank with the privilege indicated. ”

“ The uncertainty as to the relief that may be granted in such case arises from the fact that at one time the proceeding was wholly criminal, and those guilty of usurping a franchise were prosecuted by information instead of by indictment, and punished both by judgment of ouster and by fine. But in England, before the Revolution, and since that date in most of American states, including Missouri, quo warranto has been resorted to for the purpose of trying the civil right, and determining whether the defendant had usurped or forfeited the franchise in question. ”

“ Under the first of these questions it is claimed, in behalf the state, (1) that the suits are not of a civil nature, because they are proceedings in quo warranto; and (2) that they do not arise under the laws of the United States.
In Kansas the writ of quo warranto, and the proceeding by information in the nature of quo warranto, have been abolished, and the remedies which were obtainable at common law in those forms are had by civil action. ”

“ In his petition for rehearing appellant challenged on federal constitutional grounds the court's use of the civil quo warranto proceeding to disqualify him permanently from public office. He asserted that the statute, as construed by the court, permitted the permanent barring of a person from public office in a civil proceeding lacking vital elements of due process. Appellant also contended that the statute, as construed, constituted a bill of attainder since it operated to inflict punishment without the constitutional safeguards of a judicial trial. ”

“ And, for saving a default for non-appearance upon the return of the writ of quo warranto, that some person or persons be appointed and empowered, by letter of attorney, to appear and make defence until our agents may make their appearance and submission as above. ”

“ The conclusion that the relator must have a personal interest in the office before he can sue in the name of the United States is strengthened by the fact that the courts of the District not only have jurisdiction to issued quo warranto against officers of the District, but against all those, attached to the seat of government, who held a statutory office. ”

“ For, if a private citizen and taxpayer could institute quo warranto proceedings to test the title to the office of civil commissioner of the District, he could, under the same claim of right, institute like proceedings against any of those statutory officers of the United States who, in the District, exercise many important functions which affect persons and things throughout the entire country. ”

“ Every such special privilege is subject to termination for breach of condition, whether express or implied, upon which the grant depends. It may be canceled or withdrawn by any procedure that is not repugnant to the established principles of justice. The initial step need not be a suit for mandamus, quo warranto, injunction, or the like. Essential requirements are satisfied if the withdrawal of the privilege, declared by legislative or executive authority, may be followed by appeal to a court of competent jurisdiction in which the rights of the holders may be determined. ”

“ It is well if we be not called in question for this day's uproar, if we be not complained of at the emperor's court, as a factious and seditious city, and if a quo warranto be not brought against us and our charter taken away; for there is no cause whereby we may give an account of this concourse, we have nothing to say in excuse of it. We cannot justify ourselves in breaking the peace by saying that others broke it first, and we only acted defensively ”

“ It seems obvious that until the court had interpreted the statute in appellant's case to allow permanent disqualification in a quo warranto proceeding in which the petition asked only for a show-cause order and that appellant be discharged from his present office, appellant had, as a practical matter, no reason to raise the federal claims he presents to this Court. Appellee did not ask for a declaration of permanent disqualification in its petition for quo warranto. The Arizona statute that expressly provides for the judgment to be entered in a quo warranto case, Ariz.Rev.Stat. ”

“ This is true of the acts underlying some of the decisions relied on by the relator, Frizzell.
For example, the English cases are based on the statute of 9th Anne, chap. 20, which, in terms, related to suits against those 'who unlawfully exercise an office within cities, towns and boroughs.' It expressly authorized the courts to permit informations in the nature of quo warranto 'at the relation of any person . . . ”

“ But, in more modern books, you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn, that he suspects his goods are concealed; and will find it adjudged, that special warrants only are legal. In the same manner, I rely in it, that the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer. ”

“ The only exceptions to the safeguard of a warrant issued by a magistrate are those which the common law recognized as inherent limitations of the policy which found expression in the Fourth Amendment-where circumstances preclude the obtaining of a warrant (as in the case of movable vehicles) , and where the warrant for the arrest of a person carries with it authority to seize all that is on the person, or is in such open and immediate physical relation to him as to be, in a fair sense, a projection of his person. ”

“ Unless these circumstances are identified and applied, any warrant authorizing a search for a particular document might, in conjunction with the plain view exception, permit "a government official to use a seemingly precise and legal warrant only as a ticket to get into a man's home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant." ”

“ Recent scholarship has suggested that in emphasizing the warrant requirement over the reasonableness of the search the Court has 'stood the fourth amendment on its head' from a historical standpoint. T. Taylor, Two Studies in Constitutional Interpretation 23-24 (1969) . This issue is perhaps most clearly presented in the case of a warrantless entry into a man's home to arrest him on probable cause. ”

“ By its own regulations, the United States Government has conceded that although an American warrant might be a "dead letter" in a foreign country, a warrant procedure in an American court plays a vital and indispensable role in circumscribing the discretion of agents of the Federal Government. ”

“ The assertion is that the warrant is void for failure to observe the statutory requirement that it state the 'particular grounds or probable cause' for issuance, and for the further reason that it is based on affidavits which do not 'set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.' [3] We need not consider the alleged defect of the warrant, as we think the objection to the affidavits well taken, and the warrant consequently without lawful foundation. ”

“ The Warrant Clause is something more than an exhortation to this Court to maximize social welfare as we see fit. It requires that the authorities must obtain a warrant before conducting a full-scale search. The undifferentiated governmental interest in law enforcement is insufficient to justify an exception to the warrant requirement. Rather, some special governmental interest beyond the need merely to apprehend lawbreakers is necessary to justify a categorical exception to the warrant requirement. ”

“ The demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender; an obligation which it might be impossible to fulfil if release on bail were permitted. ”

“ Properly construed, it is by no means certain that the warrant professes to confer any greater power than that conferred by the statute; as the express direction of the warrant is, that the jury shall proceed to value the damages in accordance with law ”

“ The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. ”

“ The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. ”

“ As a general rule no one can be arrested without warrant. To this rule there are certain exceptions either at common law or by statute. At common law a justice of the peace, a sheriff, a coroner, a constable and even a private person, may arrest any one without warrant for a treason, felony or breach of the peace committed, or attempted to be committed, in his presence. ”

“ The warrant, if issued by a competent court as to a matter over which it has jurisdiction, becomes a judicial authority to the person who executes it, and resistance to such a warrant is a criminal offence. ”

“ It is true that the statute provides (§ 5270 [U.S.C.omp. Stat. 1901, p. 3591] ) , that the person before whom the complaint is made may 'issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner to the end that the evidence of criminality may be heard and considered;' but the practice in this as in other proceedings of a criminal or quasi criminal nature has been to make the warrant returnable before the magistrate issuing the warrant, or some other magistrate competent to take jurisdiction of the proceedings. ”

“ The materials to be seized are instead described with sufficient particularity if the warrant readily permits their identification both by those entrusted with the warrant's execution and by the court in any subsequent judicial proceeding. "It is," the Court has said with reference to the particularity of the place to be searched, "enough if the description is such that the officer * * * can, with reasonable effort ascertain and identify" the warrant's objects. ”

“ The rule that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions,' [37] is not so frail that its continuing vitality depends on the fate of a supposed doctrine of warrantless arrest. The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. ”

“ To the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances. ”

“ If an officer may act upon probable cause without a warrant when the only incriminating evidence in his possession is hearsay, it would be incongruous to hold that such evidence presented in an affidavit is insufficient basis for a warrant. If evidence of a more judicially competent or persuasive character than would have justified on officer in acting on his own without a warrant must be presented when a warrant is sought, warrants could seldom legitimatize police conduct, and resort to them would ultimately be discouraged. ”

“ To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish inquisition,-a law under which no Englishman would wish to live an hour; it was a most daring public attack made upon the liberty of the subject: I thought that the twenty-ninth chapter of Magna Charta, Nullus liber homo capiatur et imprisonetur, etc., nec super eum ibimus, etc., nisi per legale judicium parium suorum vel per legem terroe, etc., which is pointed against arbitrary power, was violated.'
I am clearly of opinion that the judgment of the court below should be affirmed. ”