§ 468a] QUO WARRANTO 2375 applied to persons disqualified from holding office by the Fourteenth Amendment, whose disabilities had not been removed. A civil action in the nature of a quo warranto to try the right delegate in Congress, or members of a State Legislature, by reason of the denial to any citizen who may offer to vote, of the right to vote, on account of race, color, or previ ous condition of servitude, his right to hold and enjoy such office, and the emoluments thereof, shall not be impaired by such denial; and the person so defeated or deprived may bring any appropriate suit or proceeding to recover the possession of such office, and in cases where it appears that the sole question touching the title to such office arises out of the denial of the right to vote to citizens who so offered to vote, on account of race, color, or previous condition of servitude, such suit or proceedings may be instituted in the circuit or district court of the United States of the circuit or district in which such person resides. And the circuit or district Court shall have, concurrently with the State courts, jurisdiction thereof, so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the fifteenth article of amendment to the Constitution of the United States, and secured herein.' "" It was said that the jurisdiction conferred by this statute was limited to those actions in which the sole question as to the title to an office arose from the denial to citizens of the right to vote on account of their race, color, or previous condition of servitude; Johnson v. Jumel, 3 Woods, 69. In November, 1872, the Circuit Judge of that District of Louisiana, E. H. Durell, issued an injunction founded upon a bill in equity in the suit of Kellogg, who claimed to be Governor, enjoining certain persons who claimed to be members of the returning board from canvassing the votes, and enjoining McEnery, who claimed to have been elected Governor, from acting as Governor, or setting up any claim to the office. Subsequently the following order was made by the same Circuit Judge: "In order to prevent the further obstruction of the proceedings in the cause, and further to prevent the violation of the orders of this court, to the imminent danger of disturbing the public peace, it is hereby ordered, that the marshal of the United States for the District of Louisiana, shall forthwith take possession of the building known as the Mechanics' Institute, and occupy the State House, for the assembling of the Legislature there in the city of New Orleans, and hold the same subject to further order of this court; and meanwhile prevent all unlawful assemblage therein under the guise or pretext of authority claimed by virtue of pretended canvass and returns made by said. pretending returning officers in contempt and violation of said restraining order. But the marshal is directed to allow the ingress or egress to and from the public office in said building of persons entitled to the same." Ex parte Warmouth, 17 Wall. 64, 21 L. ed. 543. An ap 2376 PRACTICE AT COMMON LAW IN CIVIL ACTIONS [§ 468a to exist as a corporation or to annul a corporate charter may be removed to the District Court of the United States, if the defendant has a defense founded upon the Constitution or a statute of the United States. It was held that an action of quo warranto to determine the title to the office of presidential elector could not be removed from a State to a Federal court upon the ground that it arose under the Constitution and laws of the United States.5 This decision was made during the contest between Hayes and Tilden for the Presidency. It has been also held that an action of quo warranto to try the title of a citizen of another State to an office in a corporation of the State where the suit is brought, cannot be removed into a Federal court because of a difference of citizenship between the defendant and the relator.6 Orders have been granted by a District Court to compel persons claiming still to be district attorney and marshal to deliver the official books and papers in their possession to others who had been appointed by the President to succeed them, and whose title they disputed.7 It has been held that a writ of quo warranto to try the title to an office cannot be issued except at the instance of the United States, even by the consent of both parties.8 In an action in the nature of a quo warranto to try the title to an office, the amount of salary for the remainder of the term as to which the dispute exists is the value of the subject-matter plication was made to the Supreme Court for a writ of prohibition against the Circuit Judge. The Supreme Court held, that when a final decree had been rendered to the Circuit Court, an appeal would lie to the Supreme Court; but that the Supreme Court had no right to issue a writ of prohibition until an appeal was taken. Ex parte Warmouth, 17 Wall. 64, 21 L. ed. 543. This order of the Circuit Court was severely condemned by a committee of the Senate, and the judge escaped impeachment by resigning his office. Senate Doc. 42 Cong. 3d Sess. 457. 4 Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482; State of Illinois v. Illinois Cent. R. Co., 33 Fed. 721; State ex rel. Barker v. Bowen, 8 Rich. (S. C.) 382. 5 State ex rel. Barker v. Bowen, 8 Rich. (S. C.) 382. 6 Place v. Illinois, C. C. A., 69 Fed. 481. 7 Re Parsons, 150 U. S. 150, 37 L. ed. 1034; Re Nissinger, Ibid. 8 Wallace v. Anderson, 5 Wheat. 291, 5 L. ed. 91. § 468c] QUO WARRANTO IN DISTRICT OF COLUMBIA 2377 in dispute, but not the amount of the fine which might be imposed,10 nor the effect of the judgment as res adjudicata upon a subsequent suit to recover the emoluments of the office in question.11 § 468b. Jurisdiction of the Supreme Court to review decisions in proceedings upon quo warranto. The Supreme Court of the United States has the same jurisdiction to review the proceedings upon applications for the writ of quo warranto, or upon informations in the nature thereof which it has in other cases.1 A writ of error from the Supreme Court of the United States will issue in a case otherwise within its appellate juris-* diction to the judgment of a State court, removing or refusing to remove a person from a State office in an action in the nature of a quo warranto, even when the office is that of Governor of such State. In such a case where a judgment of the State court removes a State officer and thereby vacates the office, and a writ of error from the Supreme Court is allowed for the reversal of the judgment; the person appointed to the vacancy with knowledge of the grant of the writ of error on the part of the State judge making the appointment, but before the filing of the writ in the clerk's office where the record remains, is . guilty of no contempt of the Supreme Court in assuming to perform the duties of the office.3 § 468c. Writs of quo warranto in the Supreme Court of the District of Columbia. The extent of the jurisdiction of the Supreme Court of the District of Columbia to issue the writ of quo warranto was before the adoption of the District Code uncertain. It seems that it has jurisdiction to try the title to a municipal office in the District by an action in the nature of quo warranto.2 The statute of ninth Anne, chapter 20, which 9 Gorman v. Havird, 141 U. S. 206, 35 L. ed. 717. See U. S. v. Addison, 6 Wall. 291, 297, 18 L. ed. 919. 10 Albright. V. New Mexico ex rel. Sandonal, 200 U. S. 9, 11. 11 Ibid, 200 U. S. 9, 12. $ 468b. 1 Territory v. Lockwood, 3 Wall. 236, 18 L. ed. 47. 2 Foster v. Kansas, 112 U. S. 201, 28 L. ed. 629; Boyd v. Nebraska, Fed. Prac. Vol. III-12 143 U. S. 135, 36 L. ed. 103. See the vigorous dissenting opinion of Mr. Justice Field in the latter case. 3 Foster v. Kansas, 112 U. S. 201, 28 L. ed. 629. § 468c. 1 See the discussion before the Electoral Commission quoted supra, § 468b, note 1. 2 U. S. v. Addison, 6 Wall. 291, 18 L. ed. 919. 2378 PRACTICE AT COMMON LAW IN CIVIL ACTIONS [§ 468c has been previously discussed, has never been enforced in this District. The District Code now regulates the subject as follows: "A quo warranto may be issued from the Supreme Court of the District in the name of the United States.'' "First. Against a person who usurps, intrudes into, or unlawfully holds or exercises within the District a franchise or public office, civil or military, or an office in any domestic corporation. "Second. Against any one or more persons who act as a corporation within the District without being duly authorized, or exercise with in the District an corporate rights, privileges, or franchises not granted them by the laws in force in said District. "And said proceedings shall be deemed a civil action.5 "The Attorney General or the District Attorney may institute such proceedings on his own motion, or on the relation of a third person. But such writs shall not be issued on the relation of a third person, except by leave of the court, to be applied for by the relator by a petition duly verified, setting forth the grounds of the application, or until the relator shall file a bond with sufficient surety, to be approved by the Clerk of the court, in such penalty as the court may prescribe, conditioned for the payment by him of all costs incurred in the prosecution of the writ in case the same shall not be recovered from and paid by the defendant.6 "If the Attorney General and the District Attorney shall refuse to institute such proceedings on the request of a person interested, such person may apply to the court by verified petition for leave to have said writ issued; and if in the opinion. of the court the reasons set forth in said petition are sufficient in law, the said writ shall be allowed to be issued by any attorney, in the name of the United States on the relation of said person, on his compliance with the condition prescribed in the last section as to security for costs.7 "When such proceeding is against a person for usurping an office on the relation of a person claiming the same office, the 3 Supra, $468. 4 Newman v. U. S. ex rel. Frizzell, 238 U. S. 538, 544; Torbert v. Bennett, 24 Wash. Law Ret. 156. 5 D. C. Code, § 1538, 31 St. at L. 1189, 32 St. at L. 529. 6 D. C. Code, § 1539, 31 St. at L. 1189, 32 St. at L. 529. 7 D. C. Code, § 1540, 31 St. at L. 1189, 32 St. at L. 529. § 469] SCIRE FACIAS 2379 relator shall set forth in his petition the facts upon which he claims to be entitled to the office."8 The Revised Statutes declare that the District of Columbia shall be the seat of Government and all offices attached to the seat of Government shall be there exercised. Apparently these sections of the District Code give to the Supreme Court of the District of Columbia jurisdiction of quo warranto against all national officers, whose offices are located within the District,10 except possibly the President and the Justices of the Supreme Court, without the consent of the Attorney General. No person can act as a relator in such proceedings to test the right to an office, elective or appointed, unless he has an interest in the office itself peculiar to himself.11 His interest as a citizen and taxpayer is insufficient.12 The final judgment or order in such a proceeding may be reviewed in a proper case by the District Court of Appeals and their decision by the Supreme Court of the United States.13 1 § 469. Writs of scire facias. The Judicial Code provides: "The Supreme Court and the District Courts shall have power to issue writs of scire facias." A scire facias is a judicial writ founded on some matter of record, as a judgment, recognizance, or letters-patent, on which it lies either to enforce the execution. thereof, or to vacate and set it aside.2 Writs of scire facias are of two kinds, the continuation of a previous suit, such as a writ to revive and to have execution thereupon, and writs in the nature of a new suit such as to recover upon a recognizance or judicial bond or undertaking,4 or to review what has happened.5 8 D. C. Code, § 1541, 31 St. at L. 1189, 32 St. at L. 529. 9 U. S. R. S., §§ 1795, 1796. 10 Newman v. U. S. ex rel. Frizzell, 238 U. S. 537, 552. 11 Newman v. U. S. ex rel. Frizzell, 238 U. S. 537, 550. 12 Ibid. 13 Newman v. U. S. ex rel. Frizzell, 238 U. S. 537, 552. § 469. 1 Jud. Code, § 262, reenacting U. S. R. S. 710. 22 Sellon's Pr. 187; Winder v. Caldwell, 14 How. 434, 442, 14 L. ed. 487, 491. 3 Owen v. Henry, 161 U. S. 642; Bryan v. Weigant, 163 U. S. 618; Brown v. Chavez, 189 U. S. 68. 4 Collin Co. National Bank V. Hughes, 155 Fed. 389; Grantland v. Memphis, 12 Fed. 287; Wonderly v. Lafayette Co., 77 Fed. 65; King v. Davis, 137 Fed. 198; Davis v. Davis, 174 Fed. 786. 5 Insley v. United States, 150 U. S. 512; Hollister v. United States, |