25-21,121 Quo warranto; action; against whom brought. - Nebraska Statutes

25-21,121. Quo warranto; action; against whom brought.An information may be filed against any person unlawfully holding or exercising any public office or franchise within this state, or any office in any corporation created by the laws of this state, or when any public officer has done or suffered any act which works a forfeiture of his office, or when any persons act as a corporation within this state without being authorized by law, or if, being incorporated, they do or omit acts which amount to a surrender or forfeiture of their rights and privileges as a corporation, or when they exercise powers not conferred by law. SourceR.S.1867, Code § 704, p. 517; R.S.1913, § 8328; C.S.1922, § 9280; C.S.1929, § 20-21,112; R.S.1943, § 25-21,121. Cross ReferencesDomestic societies, against, violations of law, see section 44-10,101.Governor, failure to call special session of the Legislature, see section 50-126.Reclamation districts, when granted, see section 46-528.Secretary of State, failure to call special session of the Legislature, see section 50-126.Supreme Court, jurisdiction, see section 24-204. Annotations1. Scope of action2. Against whom brought1. Scope of actionA quo warranto action which contemplates the constitutional validity of the position and the ouster of one unconstitutionally holding the position and exercising the powers and duties thereof provides a complete remedy. Quo warranto is the proper means of testing whether a district judge's membership on the Nebraska Commission on Law Enforcement and Criminal Justice was constitutionally proper. State ex rel. Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995).Absent an illegal expenditure of public funds or an increase in the tax burden, the sole method of attacking the validity of a franchise is by quo warranto. Just as in a derivative action against a corporation, a stockholder is excused from making a demand upon a corporation if such would be unavailing, so, too, is one excused from making a futile demand upon a municipality. Bard v. Cox Cable of Omaha, Inc., 226 Neb. 880, 416 N.W.2d 4 (1987).Remedy is provided to try title to public office. State ex rel. Johnson v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625 (1955).Quo warranto may be used to test legal entity of school district and status of the officers. State ex rel. Larson v. Morrison, 155 Neb. 309, 51 N.W.2d 626 (1952).Quo warranto is employed only to test the actual right to an office or franchise, and it can afford no relief for official misconduct or be used to test the legality of the official action of public or corporate officers. State ex rel. Johnson v. Consumers Public Power Dist., 143 Neb. 753, 10 N.W.2d 784 (1943).Issues of law or of fact in quo warranto are required to be joined by filing a demurrer or answer, and motion to dismiss will not lie. State ex rel. Johnson v. Consumers Public Power Dist., 142 Neb. 114, 5 N.W.2d 202 (1942).Quo warranto is intended to prevent the exercise of powers that are not conferred by law, and is not ordinarily available to regulate the manner of exercising these powers. State ex rel. Wright v. Eastern Nebraska Public Power District, 130 Neb. 683, 266 N.W. 594 (1936); State ex rel. Wright v. Lancaster County Rural Public Power Dist., 130 Neb. 677, 266 N.W. 591 (1936); State ex rel. Gantz v. Drainage Dist. No. 1 of Merrick County, 100 Neb. 625, 160 N.W. 997 (1916).If there is adequate remedy at law or equity, quo warranto is improper. State v. Scott, 70 Neb. 681, 97 N.W. 1021 (1904).Quo warranto may be maintained either by a prosecuting attorney or by a private individual. State ex rel. Broatch v. Moores, 58 Neb. 285, 78 N.W. 529 (1899); State ex rel. Broatch v. Moores, 58 Neb. 285, 73 N.W. 299 (1897).Jury is not demandable as of right in quo warranto. State ex rel. Broatch v. Moores, 56 Neb. 1, 76 N.W. 530 (1898).Quo warranto is proper remedy to oust persons who are exercising corporate powers when corporation has no legal existence. State ex rel. Summers v. Uridil, 37 Neb. 371, 55 N.W. 1072 (1893).Supreme Court has original jurisdiction to determine conflicting claims to a public office. State ex rel. Fair v. Frazier, 28 Neb. 438, 44 N.W. 471 (1890).2. Against whom broughtThe position of assistant professor at a state college is a public office for the purposes of quo warranto under the provisions of this section. State ex rel. Spire v. Conway, 238 Neb. 766, 472 N.W.2d 403 (1991).An information may be filed against any person holding office who has committed an act that works a forfeiture of that office. Sorensen v. Swanson, 181 Neb. 205, 147 N.W.2d 620 (1967).This section not only prescribes who the defendants in a quo warranto action may be, but also prescribes the acts which may be the basis for any information. State ex rel. Johnson v. Conservative Savings & Loan Assn., 143 Neb. 805, 11 N.W.2d 89 (1943).Action in quo warranto may be filed against any person unlawfully holding or exercising any public office. State ex rel. Good v. Marsh, 125 Neb. 125, 249 N.W. 295 (1933).Privilege of foreign corporation doing business in state is revocable in quo warranto by Attorney General, in name of state, for violation of law. State ex rel. Spillman v. Central Purchasing Co., 118 Neb. 383, 225 N.W. 46 (1929).Persons assuming to act as officers of village having no legal existence may be ousted by quo warranto. State ex rel. Banta v. Greer, 86 Neb. 88, 124 N.W. 905 (1910).Quo warranto is proper remedy to set aside franchise irregularly granted. Clark v. Interstate Ind. Tel. Co., 72 Neb. 883, 101 N.W. 977 (1904).Quo warranto is proper remedy to oust foreign corporation violating antitrust act. State v. Standard Oil Co., 61 Neb. 28, 84 N.W. 413 (1900).Quo warranto may be invoked to test validity of appointment, but court cannot enjoin appointment. Fort v. Thompson, 49 Neb. 772, 69 N.W. 110 (1896).Quo warranto is remedy to test legal existence of city, not injunction. Osborn v. Village of Oakland, 49 Neb. 340, 68 N.W. 506 (1896).Supreme Court has original jurisdiction in quo warranto to determine rights of persons claiming the office of Governor. State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N.W. 739 (1891), 51 N.W. 602 (1892).Quo warranto is proper to oust corporation; company is only necessary defendant. State ex rel. Leese v. Atchison & Nebraska R. R. Co., 24 Neb. 143, 38 N.W. 43 (1888).Quo warranto may be brought against county treasurer in Supreme Court. State ex rel. Glenn v. Stein, 13 Neb. 529, 14 N.W. 481 (1882).State court judgment in quo warranto ousting corporation is binding as against collateral attack in federal court. Brictson Mfg. Co. v. Close, 25 F.2d 794 (8th Cir. 1928).