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Some of my notes on oaths & quo warranto

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  • Legalbear
    Here in Colorado we were doing a lot of checking on who had oaths and bonds and who didn t. Many brought the issue up in their criminal cases with little
    Message 1 of 3 , Jun 1, 2003
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      Here in Colorado we were doing a lot of checking on who had oaths and bonds
      and who didn't. Many brought the issue up in their criminal cases with
      little effect. Now that there has been a US Supreme Court decision on that
      issue in favor of the challenger the results could different. You can
      determine who is required to post a bond by researching the statutes that
      create the office. Some states require a bond be posted by their judges.
      Colorado does not. A bond is just as important to qualify for a position as
      an oath. I went to the law library and spent two weeks researching what to
      do from a legal standpoint when government officials fail to file oaths or
      bonds. Below are some of my notes. I hope you find them instructive. I
      sell the entire package of everything I learned about quo warranto in my
      Ebay store.
      <http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=3521900824&category=unde
      fined> Bear

      Wilson v. Blake, 260 P.2d 592 restricted to special interest, you must
      alledge that DA refused to act in you complaint Weisbrod v. Lockard, 143 P.
      273, there must be a public interest Darrow v. People, 8 P. 661. exhaust
      other remedies first, investigate statutory

      Kepley v. People, 230 P.804, quo warranto is only remedy for trying title to
      public office

      McCamant v. City and County of Denver 501 P.2d 142 the exclusive means of
      determining whether a person unlawfully holds office is quo

      Lockhard v. People, 178 P. 565 Q. seeking redress of individual wrong,
      involves a matter of public interest

      Union Pac. R. Co. v. Colorado Eastern R. Co., 46 P. 219. Can't be used for
      private pupose/defend rights

      Londoner v. People, 26 P. 135, Byers v. Grand river Bridge Co., 21 P. 898,
      Darrow v. People, 8 P. 661, Status of plaintiff; must be a tax payer,
      resident, etc.

      Union Pacific R.R. v. Colorado E. R.R. Co. 46 P. 219, 220. Must show harm is
      likely to come to the public.

      Norton v. Rudbeck, 81 P.2d 393. The owner and manager of gas station subject
      to licensing and police regulation had sufficient interest

      Byers v. Grand river Bridge Co., 21 P.898, You must have more of an interest
      than just being a citizen

      People v. Lindsey, 253 P. 465, People v. Owens, 69 P. 515, Respondent has
      burden of proving his right to office

      State v. Murphy, 148 SW.2d 527 and Burkett v. Ulmer, 15 A.2d 858 were cited
      in People v. Kniss, 357 P.2d 352, 354

      People v. Painless Parker Dentist, 275 P. 928, cert. denied DA must
      determine whether the public interest is involved

      you can use quo warranto to try the office of constable, State v. Johnson,
      52 SW.2d 110, district and prosecuting attorney, People
      v. Hallett, 1 Colo.352, Howard v. Burns, 85 NW 920, judge, Hill
      v. State, 128 So.878, 157 Miss. 648, tax collector, Commonwealth
      v. Blume, 161 A. 551, 307 Pa. 406, policeman, Win. Eckelmann, Inc.
      v. Jones, 59 A.2d 246, 137 NJ Law 210, Shibla v. Township Committee of Wall
      Tp., Monmouth County, 56 A.2d 734, 136 NJ Law 506, affirmed 61 A.2d 242, 137
      NJ Law 692, City of Tulsa v. District Court of Tulsa County, 51 P.2d 511,
      174 Okla. 470

      People ex rel Riordan v. Hersey, 196 P.180 (Colo. 1921) State officers are
      those whose duties concern the state at large, or the general public
      although they may be exercised with in defined limits.

      Bowman v. Eldher, 369 P.2d 977 (Colo. 1962) Cities charter determines
      whether police are officers for purposes of quo warranto
      Corfman v. McDevitt, 142 P.2d 383 (Colo. 1943) "There is a distinction
      between an officer and an employee. The term 'office' implies a delegation
      of a portion of the sovereign power to, and the possession of it by, the
      person filling the office. The term 'employment' does not comprehend a
      delegation of any part of the sovereign authority, or authorize the
      exercise in one's own right of any sovereign power or any prescribed
      independent authority of a governmental nature." "An ordinance of the City
      and County of Denver expressly made the holder of the position in question
      an officer and not an employee."

      City and County of Denver v. McNichols, 268 P.2d 1026 (Colo. 1954) "...our
      Court has recognized that the terms "officer" and "employee" are not
      interchangeable, and the two are to be distinguished."

      City Counsel of Cripple Creek v. People ex rel. Ferguson, 75 P. 603
      (Colo.App. 1904) "If Matthews was in actual possession of the office of
      alderman under an election or commission, and exercising its duties under
      color of right, his title to the office cannot be tried or tested on
      mandamus....although not legally appointed or elected thereto, or qualified
      to hold the same..."

      Hudson v. Annear, 75 P.2d 587 (Colo. 1938) United States v. Maurice, 2
      Brock. 96 "The officer is distinguished from the employee in the greater
      importance, dignity, and independence of his position in being required to
      take an official oath, and perhaps to give an official bond; * * and
      usually, though not necessarily, in the tenure of his position. People ex
      rel. v. Langdon, 40 Mich. 673 "A position, the duties of which are
      undefined, and which can be changed at the will of the superior; * * * is
      not an office but a mere employment, and the incumbent is not an officer but
      a mere employee."

      State ex rel. Burns v. Linn, 153 P. 826 (Okla. 1915) "The general rule, in
      the absence of special constitutional provision, is that all officers whose
      duties pertain to the exercise of the police power of the state are in that
      sense state officers, and under the control of the Legislature, even though
      they may be officers of a municipality and charged with the enforcement of
      the local police regulations of such municipality....It is within the power
      of the state to enact laws for the police protection of its citizens, which
      shall be effective throughout the state and all of its subdivisions....and
      make suitable provisions for the enforcement thereof, and provide for the
      removal of officers charged with the duty of enforcing such regulations who
      should fail in the discharge of that duty..."

      State v. Murphy, 148 S.W.2d 527 (MO. 1941) A writ of quo warranto is in the
      nature of a writ of right for the king, against him who claims or usurps any
      office, franchise, or liberty, to inquire by what authority he supports his
      claim, in order to determine his right."

      "It is also true that it will lie against a county officer who has been
      legally elected but has forfeited his office by misconduct."

      "The officer who violates his oath of office by corruption, willful
      misconduct or neglect of official duty automatically loses the right to
      office and becomes a mere interloper."

      "In either case the judgment in quo warranto does not try the question of
      forfeiture. It merely recognizes judicially fait accompli and ousts the
      wrongdoer from enjoying the privileges of a franchise which he has cased to
      possess."

      "...where the officer steps entirely outside the scope of his authority to
      exercise a function which neither the constitution nor the statue has
      entrusted to him, the remedy by quo warranto is available."

      State v. Prevatt, 148 So. 578 (Fla. 1933) The granting of quo warranto
      against a corporation is equivalent to a judgment of seizure at common law.

      Rowan v. City of Shawneetown, 38 N.E.2d 2 (Ill. 1941) "Where the Attorney
      General and Stat's attorney have refused to bring a quo warranto proceeding
      at the request of an individual, the statute permits the individual to make
      application on his own relation but he must show he has an interest in the
      question."

      "...one who has no interest except that which is common t every other member
      of the public is not entitled to use the name of the government in quo
      warranto proceedings."

      City of Enid v. Davis, 206 P. 816 (Okla. 1922) "We understand 'public
      interest' to mean more than a mere curiosity: it means something in which
      the public, the community at large, has some pecuniary interest, or some
      interest by which their legal rights or liabilities are affected. It does
      not mean anything so narrow as the interests of the particular localities,
      which may be affected by the matters in question."

      State ex rel. Paugh v. Bradley, 753 P.2d 857 (Mont. 1988) Public office
      defined: "The duties attached t the position must concern the public
      directly, and must be imposed by public authority - not by contract (citing
      authority). The duties must be public in a sense that they comprehend the
      exercise of some portion of the sovereign power and authority of the state
      either in making, administering, or executing the laws. (Citing authority.)
      They must be public also, in the sense that they imply the element of
      personal responsibility, as distinguished from the merely clerical act of an
      agent or servant. (Citing authority.) In other words, a public officer is
      a part of the personal force by which the state thinks, acts, determines and
      administers t the end that its Constitution may be effective and its laws
      operative."

      "...we hold that five elements are indispensable in any position of public
      employment, in order to make it a public office of a civil nature: (1) it
      must be created by the Constitution or by the legislature or created by a
      municipality or other body through authority conferred by the legislature;
      (2) it must possess a delegation of a portion of the sovereign power of
      government, to be exercised for the benefit of the public; (3) the powers
      conferred and the duties to be discharged must be defined, directly or
      impliedly, by the legislature or to legislative authority; (4) the duties
      must be performed independently and without control of a superior power,
      other than the law, unless they be those of an inferior or subordinate
      office, created or authorized by the legislature and by it placed under the
      general control of a superior officer or body; (5) it must have some
      permanency and continuity and not be only temporary or occasional. In
      addition, in this state, an officer must take and file an official oath,
      hold a commission or other written authority and give an official bond, if
      the latter be required by proper authority." Also see Burkett v. Ulmer,
      infra.

      Adam v. Mt. Pleasant Bank & Trust Co., 355 N.W.2d 868 (Iowa 1984) Quo
      warranto to challenge the existence of a corporation. "A corporation's
      existence may be disregarded if: (1) the corporation is undercapitalized,
      (2) without separate books; (3) its finances are not kept separate from
      individual finances, individual obligations are paid by the corporation; (4)
      the corporation is used to promote fraud or illegality, (5) corporate
      formalities are not followed or (6) the corporation is merely a sham."

      Montgomery City Res. Dev. V. Bd. Of Mental Ret., 680 F. Supp. 1068 (S.D.
      Ohio 1987) Right of corporation to exist

      State ex rel. Boynton v. Perkins, 28 P.2d 765 (Kan. 1934) Quo Warranto
      appropriate method to test right to practice law. See also Birmingham Bar
      Assn. V. Phillips & Marsh, 196 So. 725 (Ala. 1940)(usurping a franchise).

      Burkett v. Ulmer, 15 A.2d 858 (Maine 1940) "At common law, private
      individuals without the intervention of the attorney general could not,
      either as of right or by leave of court, institute quo warranto
      proceedings."

      McIlhenney v. City of Wilmington, 37 S.E. 187 (Ga. 1900) The board of the
      City appointed a certain number of policemen who were absolutely
      incompetent, and without necessary judgment to execute their duties as
      prescribed by law. The mayor was frequently notified of his incompetency,
      and continued to keep him upon the force. One of them continuously made
      arrests without authority of law and when no offense had been committed; he
      was notorious for his cruelty and want of judgment in making arrests, and on
      numerous occasions without authority, either of fact or of law, he mad
      arrests which were unlawful, and for which he was publicly reprimanded by
      the mayor. This cop is a state officer. This case is not a quo warranto;
      it's only useful for showing that a cop is an officer.

      "The above and many other authorities to the same purport are presented in
      the excellent brief of Mr. Meares, whose labors have been useful to the
      court in preparing this opinion."

      City of Newport v. Horton, 47 A. 312 (R.I. 1900) Quo warranto used to
      determine the constitutionality and status of a police officer

      People ex rel Ray v. Lewistown Community High School Dist., 57 N.E.2d 486
      (Ill. 1944) (respecting challenging the right of corporation to exist)
      "The plaintiff in quo warranto is not required to allege any facts in the
      complaint showing that the challenged acts are unlawful. It is enough to
      allege the exercise of the right without lawful authority. All that is
      necessary or material in any count of the complaint is the general charge of
      usurpation. The defendant must either disclaim or justify. If he justifies
      he must set out facts which show his lawful authority to exercise the right
      claimed....The plaintiff is not required to either allege or prove any
      facts. The right to call upon any person, natural or artificial, by quo
      warranto, to justify his acts, is an incident of sovereignty. The burden is
      on the defendant. If he attempts to justify he must allege and prove facts
      which justify his acts. Such facts when alleged may be rebutted. The
      defendant, not the plaintiff, must, by his answer, tender the issues on
      which the rights claimed by him are to be litigated....The office of an
      information or complaint in the nature of quo warranto is not to tender an
      issue of fact, but only to all upon the defendants to show by what authority
      they claim the right to exercise the powers alleged to be usurped....In
      other litigation the complaint tenders the issues. It is only in rare
      instances that the issues tendered by the complaint, in so far as the
      plaintiff's case is concerned, are departed from. This is not true in quo
      warranto proceedings. In such cases the issues are never tendered by the
      complaint. They are tendered for the first time by the answer of the
      defendant."


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    • Frog Farmer
      ... It probably took this long to reach the Supreme Court because the people of the past knew who they were, and knew what words meant a little more than
      Message 2 of 3 , Jun 1, 2003
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        Legalbear wrote:

        > Here in Colorado we were doing a lot of checking on who had oaths and bonds
        > and who didn't. Many brought the issue up in their criminal cases with
        > little effect. Now that there has been a US Supreme Court decision on that
        > issue in favor of the challenger the results could different.


        It probably took this long to reach the Supreme Court
        because the people of the past knew who they were, and knew
        what words meant a little more than today. The issue
        p[robably never came up very much. Of course, those waiting
        until their criminal cases were started waited too long -
        they granted authority where none was, which is still a
        right all of us have any time we want to exercise it.

        > You can
        > determine who is required to post a bond by researching the statutes that
        > create the office. Some states require a bond be posted by their judges.
        > Colorado does not. A bond is just as important to qualify for a position as
        > an oath. I went to the law library and spent two weeks researching what to
        > do from a legal standpoint when government officials fail to file oaths or
        > bonds. Below are some of my notes. I hope you find them instructive. I
        > sell the entire package of everything I learned about quo warranto in my
        > Ebay store.


        The problem we have here in California is that the statutes
        say that before a Quo Warranto action may commence, it
        requires the approval of one who himself has no proper oath
        on file!

        > Kepley v. People, 230 P.804, quo warranto is only remedy for trying title to
        > public office


        And the first place to win it is when that first face gets
        into your face and makes a special claim. If you fail to
        challenge it right then and there, you have made a record of
        your submission. Is that not correct? Anyone?


        > Londoner v. People, 26 P. 135, Byers v. Grand river Bridge Co., 21 P. 898,
        > Darrow v. People, 8 P. 661, Status of plaintiff; must be a tax payer,
        > resident, etc.


        - of course, since only these parties of inferior status
        can be regulated by the officer anyway, correct? Some human
        beings simply do not come under the jurisdiction of the
        supposed officer, and so have no stake in whether he is or
        is not legitimate.


        > Union Pacific R.R. v. Colorado E. R.R. Co. 46 P. 219, 220. Must show harm is
        > likely to come to the public.


        The public certainly cannot benefit from having knaves,
        thieves and liars going about impersonating legitimate
        officers in attempts to defraud the people of life, liberty
        and property. If allowed to progress too far, might not it
        lead to death and dismemberment and other harm to, at least,
        the good reputation of the legitimate government?

        > Norton v. Rudbeck, 81 P.2d 393. The owner and manager of gas station subject
        > to licensing and police regulation had sufficient interest


        Really! Have you ever seen a movie where a fake bill
        collector leaves with the money right before the legitimate
        bill collector gets there and asks for the money? Many
        take-offs on that situation have been portrayed, from Three
        Stooges to James Bond movies. However, somewhere it had to
        go to court for "officials" to be shown the obvious.


        > People v. Lindsey, 253 P. 465, People v. Owens, 69 P. 515, Respondent has
        > burden of proving his right to office


        He has that same burden when he makes a special claim to you
        too, correct?

        > you can use quo warranto to try the office of constable, State v. Johnson,
        > 52 SW.2d 110, district and prosecuting attorney,


        At least you USED TO be able to, but now there's nobody left
        to go to, no co-conspirator you can avoid. The corruption
        is total.


        > People ex rel Riordan v. Hersey, 196 P.180 (Colo. 1921) State officers are
        > those whose duties concern the state at large, or the general public


        Notice the distinction? How many people think these two
        things are the same thing?


        > although they may be exercised with in defined limits.


        If you don't define your own limits of credulity at that
        first meeting, aren't you to blame for letting a lie
        progress further?


        > Bowman v. Eldher, 369 P.2d 977 (Colo. 1962) Cities charter determines
        > whether police are officers for purposes of quo warranto
        > Corfman v. McDevitt, 142 P.2d 383 (Colo. 1943) "There is a distinction
        > between an officer and an employee. The term 'office' implies a delegation
        > of a portion of the sovereign power to, and the possession of it by, the
        > person filling the office. The term 'employment' does not comprehend a
        > delegation of any part of the sovereign authority, or authorize the
        > exercise in one's own right of any sovereign power or any prescribed
        > independent authority of a governmental nature."


        I think people in the past used to know this. Being able to
        distinguish the two can certainly be useful in defending
        one's rights.

        > "An ordinance of the City
        > and County of Denver expressly made the holder of the position in question
        > an officer and not an employee."


        Today a person can be both, and some people still confuse
        the two, thinking that accepting the paycheck of the latter
        binds one to the performance of the duties of the former.

        > City and County of Denver v. McNichols, 268 P.2d 1026 (Colo. 1954) "...our
        > Court has recognized that the terms "officer" and "employee" are not
        > interchangeable, and the two are to be distinguished."


        See, even for them it was old news. Today's people have
        been so badly dumbed-down, the concept doesn't arise in
        their consciousness (to their detriment).

        > City Counsel of Cripple Creek v. People ex rel. Ferguson, 75 P. 603
        > (Colo.App. 1904) "If Matthews was in actual possession of the office of
        > alderman under an election or commission, and exercising its duties under
        > color of right, his title to the office cannot be tried or tested on
        > mandamus....although not legally appointed or elected thereto, or qualified
        > to hold the same..."


        Could this be because Mandamus is only for those with a
        legitimate ministerial duty, and not for brave blustering
        ones willing to fool the audience in the vacuum of
        legitimate offices?

        > Hudson v. Annear, 75 P.2d 587 (Colo. 1938) United States v. Maurice, 2
        > Brock. 96 "The officer is distinguished from the employee in the greater
        > importance, dignity, and independence of his position in being required to
        > take an official oath, and perhaps to give an official bond; * * and
        > usually, though not necessarily, in the tenure of his position. People ex
        > rel. v. Langdon, 40 Mich. 673 "A position, the duties of which are
        > undefined, and which can be changed at the will of the superior; * * * is
        > not an office but a mere employment, and the incumbent is not an officer but
        > a mere employee."


        Another important distinguishing characteristic is that mere
        employees cannot affect the rights of free men (and so
        unfree men permit it), whereas a legitimate officer can.


        > State ex rel. Burns v. Linn, 153 P. 826 (Okla. 1915) "The general rule, in
        > the absence of special constitutional provision, is that all officers whose
        > duties pertain to the exercise of the police power of the state are in that
        > sense state officers, and under the control of the Legislature, even though
        > they may be officers of a municipality and charged with the enforcement of
        > the local police regulations of such municipality....It is within the power
        > of the state to enact laws for the police protection of its citizens, which
        > shall be effective throughout the state and all of its subdivisions....and
        > make suitable provisions for the enforcement thereof, and provide for the
        > removal of officers charged with the duty of enforcing such regulations who
        > should fail in the discharge of that duty..."


        Unfortunately, there's a big backlog on that job right now,
        because nobody is doing it. Take a number...


        > State v. Murphy, 148 S.W.2d 527 (MO. 1941) A writ of quo warranto is in the
        > nature of a writ of right for the king, against him who claims or usurps any
        > office, franchise, or liberty, to inquire by what authority he supports his
        > claim, in order to determine his right."


        My experience shows that these pretenders often just go away
        to find someone upon whom the sham will work, if I just
        conduct my own Quo Warranto at Minute One. A video camera
        helps too.

        > "It is also true that it will lie against a county officer who has been
        > legally elected but has forfeited his office by misconduct."


        When "Step One" is taking the Oath, what do you call it when
        Joe cannot progress to Step One? I'd call it misconduct,
        wouldn't you? Many would allow him to progress to Steps 2
        through Infinity, but that is a personal waiver that these
        permissive subject types cannot make for others who would
        maintain their freedoms. Thank you very much for asking,
        but no thanks...

        > "The officer who violates his oath of office by corruption, willful
        > misconduct or neglect of official duty automatically loses the right to
        > office and becomes a mere interloper."


        Again, not old news for old fogies, but the young
        whippersnappers seem to be unaware of this principle. Kids,
        can you say, "automaticly"? (Means you don't even have to
        push any buttons!)

        > "In either case the judgment in quo warranto does not try the question of
        > forfeiture. It merely recognizes judicially fait accompli and ousts the
        > wrongdoer from enjoying the privileges of a franchise which he has cased to
        > possess."


        Fait Accompli! Now wonder it's unknown today - nobody speaks
        French anymore! Nobody can undo a fait accompli! No going
        back, such as some have tried... "Oh, so I've been
        impersonating an officer for years...no problem...I'll just
        take the oath now!" Hahahaha! They did that here. The
        sheep continue to graze (and make wonderful chops).


        > "...where the officer steps entirely outside the scope of his authority to
        > exercise a function which neither the constitution nor the statue has
        > entrusted to him, the remedy by quo warranto is available."


        Ahh, but here he had to be an officer first! Notice, that
        IS different than never becoming an officer.


        > State v. Prevatt, 148 So. 578 (Fla. 1933) The granting of quo warranto
        > against a corporation is equivalent to a judgment of seizure at common law.
        >
        > Rowan v. City of Shawneetown, 38 N.E.2d 2 (Ill. 1941) "Where the Attorney
        > General and Stat's attorney have refused to bring a quo warranto proceeding
        > at the request of an individual, the statute permits the individual to make
        > application on his own relation but he must show he has an interest in the
        > question."


        You might think this would be the remedy for California, but
        there's nobody to "bring" it to, and if I have to use quo
        Warranto against everyone they could throw at me, it would
        amount to a life sentence I don't deserve. No, when they
        permitted the situation to get 51% corrupted, the game was
        over. Now it's just for the die-hards who need a game for
        their own personal reasons. They're just going through the
        motions for the fans, but if they pretend real hard, it's as
        good for them as the real thing! See you after practice guys!


        > "...one who has no interest except that which is common t every other member
        > of the public is not entitled to use the name of the government in quo
        > warranto proceedings."
        >
        > City of Enid v. Davis, 206 P. 816 (Okla. 1922) "We understand 'public
        > interest' to mean more than a mere curiosity: it means something in which
        > the public, the community at large, has some pecuniary interest, or some
        > interest by which their legal rights or liabilities are affected. It does
        > not mean anything so narrow as the interests of the particular localities,
        > which may be affected by the matters in question."
        >
        > State ex rel. Paugh v. Bradley, 753 P.2d 857 (Mont. 1988) Public office
        > defined: "The duties attached t the position must concern the public
        > directly, and must be imposed by public authority - not by contract (citing
        > authority).


        And yet how many people today cry about the contracts they
        themselves have entered into? Many don't even realize they
        did it! What hope is there for the unconscious?


        > Adam v. Mt. Pleasant Bank & Trust Co., 355 N.W.2d 868 (Iowa 1984) Quo
        > warranto to challenge the existence of a corporation. "A corporation's
        > existence may be disregarded if: (1) the corporation is undercapitalized,
        > (2) without separate books; (3) its finances are not kept separate from
        > individual finances, individual obligations are paid by the corporation; (4)
        > the corporation is used to promote fraud or illegality, (5) corporate
        > formalities are not followed or (6) the corporation is merely a sham."


        But some still claim the United States is a corporation....hmmm.


        > State ex rel. Boynton v. Perkins, 28 P.2d 765 (Kan. 1934) Quo Warranto
        > appropriate method to test right to practice law. See also Birmingham Bar
        > Assn. V. Phillips & Marsh, 196 So. 725 (Ala. 1940)(usurping a franchise).


        Here in California there's a statute in the Business and
        Professions Code (6067) which requires that a certificate of
        the oath be endorsed upon the lawyer's license to practice
        law. None of them have it, either the license or the
        endorsement. Who challenges an attorney?! This one makes
        it difficult to give you appointed counsel unless you are
        willing to waive the requirement. Most do. Go figure!

        > Burkett v. Ulmer, 15 A.2d 858 (Maine 1940) "At common law, private
        > individuals without the intervention of the attorney general could not,
        > either as of right or by leave of court, institute quo warranto
        > proceedings."


        How do you get an AG to prosecute himself?


        > People ex rel Ray v. Lewistown Community High School Dist., 57 N.E.2d 486
        > (Ill. 1944) (respecting challenging the right of corporation to exist)
        > "The plaintiff in quo warranto is not required to allege any facts in the
        > complaint showing that the challenged acts are unlawful. It is enough to
        > allege the exercise of the right without lawful authority. All that is
        > necessary or material in any count of the complaint is the general charge of
        > usurpation. The defendant must either disclaim or justify. If he justifies
        > he must set out facts which show his lawful authority to exercise the right
        > claimed....The plaintiff is not required to either allege or prove any
        > facts. The right to call upon any person, natural or artificial, by quo
        > warranto, to justify his acts, is an incident of sovereignty. The burden is
        > on the defendant. If he attempts to justify he must allege and prove facts
        > which justify his acts. Such facts when alleged may be rebutted. The
        > defendant, not the plaintiff, must, by his answer, tender the issues on
        > which the rights claimed by him are to be litigated....The office of an
        > information or complaint in the nature of quo warranto is not to tender an
        > issue of fact, but only to all upon the defendants to show by what authority
        > they claim the right to exercise the powers alleged to be usurped....In
        > other litigation the complaint tenders the issues. It is only in rare
        > instances that the issues tendered by the complaint, in so far as the
        > plaintiff's case is concerned, are departed from. This is not true in quo
        > warranto proceedings. In such cases the issues are never tendered by the
        > complaint. They are tendered for the first time by the answer of the
        > defendant."
        >


        And yet people ask me, "how are you going to explain the
        cop's non-position (sic)?" Who has to explain?!

        The game is over here, and from what I can tell, in Oregon,
        and Washington state as well. I have no desire to go east,
        so haven't bothered to see how far the lack of game play
        extends.
      • Legalbear
        Of course, those waiting until their criminal cases were started waited too long - I have three examples where I confronted the so-called officer on the
        Message 3 of 3 , Jun 1, 2003
        • 0 Attachment

          Of course, those waiting
          until
          their criminal cases were started waited too long –

           

          I have three examples where I confronted the so-called officer on the street.  The first screwed up on the ticket and wrote the wrong year for the trial date.  That case was dismissed without me even going to court.  I failed to appear because I forgot to go.  The court recognized his error and dismissed the case sua sponte.  Another time, I queried the cop like I was the officer and he was the one under investigation.  Incredibly, he had filed an oath and told me where and he had his commission on him and showed me it.  The prosecutor failed to show up to my first appearance in court and that case was also dismissed.  The other time I challenged the officer on the street he told me I could play lawyer in the courtroom and that he was leaving now.  I filed criminal & traffic charges against him.  When the court refused to prosecute the cop I filed a motion to dismiss because I was being denied equal protection under the law.  The court never reached the issue because the officer never showed up for trial and that case was also dismissed.

           
          The problem we have here in
          California is that the statutes
          say
          that before a Quo Warranto action may commence, it

          requires the approval of one who himself has no proper oath
          on file!

           

          My experience here has been that the permission has been readily obtained.  However, the judge on the case then violates his oath by protecting the ones that don’t have an oath or bond.

          And the first place to win it is when that first face gets
          into
          your face and makes a special claim.  If you fail to
          challenge
          it right then and there, you have made a record of

            your submission.  Is that not correct?  Anyone?

           

          I think what I’ve said above validates this.


          > People v. Lindsey, 253 P. 465, People v. Owens, 69 P. 515, Respondent has
          > burden of proving his right to office


          He has that same burden when he makes a special claim to you
          too
          , correct? 
          That sounds right to me.

          > you can use quo warranto to try the office of constable, State v. Johnson,
          > 52 SW.2d 110, district and prosecuting attorney,


          At least you USED TO be able to, but now there's nobody left
            to go to, no co-conspirator you can avoid.  The corruption
          is
          total. 
          I think so.  See my article on the compromising of all government officials.


           

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