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Quo warranto

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]

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)[18] and Queensland (as of the Judicial Review Act 1991).[19]

England and Wales edit

The writ of quo warranto and its replacement, the information in the nature of a quo warranto are either obsolete or have been abolished. Section 30 of the Senior Courts Act 1981 grants to the High Court the power to issue an injunction to restrain persons from acting in offices in which they are not entitled to act and to declare the office vacant if necessary.

United States edit

Quo warranto could be brought against a corporation when it misuses its franchise. In 1890, the Supreme Court of Ohio wrote:

The corporation has received vitality from the state. It continues during its existence to be the creature of the state, must live subservient to its laws, and has such powers and franchises as those laws have bestowed upon it, and none others. As the state was not bound to create it in the first place, it is not bound to maintain it after having done so, if it violates the laws or public policy of the state, or misuses its franchises to oppress the citizens thereof.[20]

In 1876, the Pennsylvania senate passed a resolution instructing the Attorney General to begin quo warranto proceedings to revoke the charter of the Baltimore, Philadelphia and New York Railroad.[21]

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.

In New York State, the former writ of quo warranto has been codified. Per Executive Law § 63-b, only the Attorney General, at his or her discretion, "may maintain an action, upon his own information or upon the complaint of a private person, against a person who usurps, intrudes into, or unlawfully holds or exercises within the state a franchise or a public office, civil or military, or an office in a domestic corporation."[22]

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][23] 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.[24] 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.).[25]

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,[26][27] and, unlike many other constitutions, Article 11 of the 1987 Constitution does not exclusively grant the power of impeachment to Congress.[26]

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.[28] 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 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. However, the expiration of the franchise and later actions by the National Telecommunications Commission made Calida's quo warranto petition moot and academic.

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. ^ Sn 12 Quo Warranto Supreme Court Act 1970, New South Wales Consolidated Acts.
  19. ^ Sn 42 Abolition of quo warranto, Judicial Review Act 1991, Queensland Consolidated Acts.
  20. ^ Lewis, Lawrence; Hamilton, Adelbert; Merrill, John Houston; McKinney, William Mark; Kerr, James Manford; Thomson, John Crawford (1890). The American and English Railroad Cases: A Collection of All the Railroad Cases in the Courts of Last Resort in America and England. Edward Thompson Company. pp. 332–334.
  21. ^ House, Pennsylvania General Assembly; Representatives, Pennsylvania General Assembly House of (1876). Journal of the ... of the ... House of Representatives of the Commonwealth of Pennsylvania. George Helmbold. p. 917.
  22. ^ "New York Consolidated Laws, Executive Law - EXC § 63-b. Action by attorney-general against usurper of office or franchise". FindLaw. 1 Jan 2021.
  23. ^ John Van de Kamp (1990). Quo warranto: resolution of disputes -- right to public office (PDF). Sacramento: California Attorney General's Office. p. 1.
  24. ^ 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.
  25. ^ 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.
  26. ^ a b Aquino, Ranhilio (2018-04-13). "Much ado about quo warranto". Manila Standard. Retrieved 2020-06-09.
  27. ^ "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.
  28. ^ 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.

Sources edit

Edition of proceedings edit

Bibliography edit

External links edit

warranto, especially, english, american, common, warranto, medieval, latin, what, warrant, prerogative, writ, requiring, person, whom, directed, show, what, authority, they, have, exercising, some, right, power, franchise, they, claim, hold, also, used, with, . 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 Contents 1 Early history 1 1 Publication 2 Later developments 3 Modern quo warranto 3 1 Australia 3 2 England and Wales 3 3 United States 3 4 Philippines 3 4 1 Quo warranto of non elected appointees 3 4 2 Corporate franchise quo warranto 4 See also 5 References 5 1 Notes 5 2 Sources 5 2 1 Edition of proceedings 5 3 Bibliography 6 External linksEarly history editWith 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 editThe 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 Modern quo warranto editWhile 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 18 and Queensland as of the Judicial Review Act 1991 19 England and Wales edit The writ of quo warranto and its replacement the information in the nature of a quo warranto are either obsolete or have been abolished Section 30 of the Senior Courts Act 1981 grants to the High Court the power to issue an injunction to restrain persons from acting in offices in which they are not entitled to act and to declare the office vacant if necessary United States edit Quo warranto could be brought against a corporation when it misuses its franchise In 1890 the Supreme Court of Ohio wrote The corporation has received vitality from the state It continues during its existence to be the creature of the state must live subservient to its laws and has such powers and franchises as those laws have bestowed upon it and none others As the state was not bound to create it in the first place it is not bound to maintain it after having done so if it violates the laws or public policy of the state or misuses its franchises to oppress the citizens thereof 20 In 1876 the Pennsylvania senate passed a resolution instructing the Attorney General to begin quo warranto proceedings to revoke the charter of the Baltimore Philadelphia and New York Railroad 21 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 In New York State the former writ of quo warranto has been codified Per Executive Law 63 b only the Attorney General at his or her discretion may maintain an action upon his own information or upon the complaint of a private person against a person who usurps intrudes into or unlawfully holds or exercises within the state a franchise or a public office civil or military or an office in a domestic corporation 22 Philippines edit nbsp 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 23 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 24 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 25 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 26 27 and unlike many other constitutions Article 11 of the 1987 Constitution does not exclusively grant the power of impeachment to Congress 26 Quo warranto of non elected appointees edit See also Quo warranto petition against Maria Lourdes Sereno 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 28 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 See also ABS CBN franchise renewal controversy Quo warranto petition Quo warranto 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 However the expiration of the franchise and later actions by the National Telecommunications Commission made Calida s quo warranto petition moot and academic See also editQuia emptoresReferences edit Henry III 1237 in Helen Cam Law finders and Law makers London 1962 pp 38 39 Helen Cam Law finders and Law makers London 1962 p 39 S H Steinberg ed A New Dictionary of British History London 1963 p 299 Helen Cam Law finders and Law makers London 1962 pp 39 40 a b J R Tanner ed The Cambridge Medieval History Vol VII Cambridge 1932 p 394 a b Clanchy From Memory to Written Record p 3 Harris Nicholas Charles Purton Cooper 1831 Public Records p 74 Carpenter David A 1996 The Reign of Henry III p 88 ISBN 978 1 85285 137 8 Helen Cam Law finders and Law makers London 1962 p 41 Clanchy From Memory to Written Record p 7 Clanchy From Memory to Written Record p 152 S H Steinberg ed A New Dictionary of British History London 1963 p 299 Illingworth 1818 Shortt John 1888 Informations criminal and quo warranto mandamus and prohibition American law series C H Edson and company p 137 J H Plumb The Growth of Political Stability in England London 1986 pp 55 6 M Ashley The Glorious Revolution London 1966 p 112 M Ashley The Glorious Revolution London 1966 pp 205 207 Sn 12 Quo Warranto Supreme Court Act 1970 New South Wales Consolidated Acts Sn 42 Abolition of quo warranto Judicial Review Act 1991 Queensland Consolidated Acts Lewis Lawrence Hamilton Adelbert Merrill John Houston McKinney William Mark Kerr James Manford Thomson John Crawford 1890 The American and English Railroad Cases A Collection of All the Railroad Cases in the Courts of Last Resort in America and England Edward Thompson Company pp 332 334 House Pennsylvania General Assembly Representatives Pennsylvania General Assembly House of 1876 Journal of the of the House of Representatives of the Commonwealth of Pennsylvania George Helmbold p 917 New York Consolidated Laws Executive Law EXC 63 b Action by attorney general against usurper of office or franchise FindLaw 1 Jan 2021 John Van de Kamp 1990 Quo warranto resolution of disputes right to public office PDF Sacramento California Attorney General s Office p 1 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 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 a b Aquino Ranhilio 2018 04 13 Much ado about quo warranto Manila Standard Retrieved 2020 06 09 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 Cabato Regine 2018 06 20 Lawyers Supreme Court cases with tiebreaking Sereno vote can be questioned CNN Philippines Retrieved 2020 06 09 Notes edit Sometimes rendered as by whose authority although quo literally means where or why As of January 2018 associate dean of the Polytechnic University of the Philippines College of Law 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 Sources edit Edition of proceedings edit Illingworth William ed 1818 Placita de Quo Warranto temporibus Edw I II amp III in Curia Receptae Scaccarii Westm Asservata Record Commission London Bibliography edit Clanchy M T 1993 From Memory to Written Record England 1066 1307 Second ed Oxford Blackwell ISBN 978 0 631 16857 7 Prestwich Michael 1997 1988 Edward I revised ed New Haven Yale University Press ISBN 0 300 07209 0 Prestwich Michael 1980 The Three Edwards War and State in England 1272 1377 London Weidenfeld amp Nicolson ISBN 0 297 77730 0 Sutherland Donald W 1963 Quo Warranto Proceedings in the Reign of Edward I 1278 1294 Oxford Clarendon Press External links edit Quo warranto Encyclopaedia Britannica 11th ed 1911 Quo warranto New International Encyclopedia 1905 Retrieved from https en wikipedia org w index php title Quo warranto amp oldid 1182610963, wikipedia, wiki, book, books, library,

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