Nature of Remedy
With one exception, the action authorized by section 803 of the Code of Civil Procedure may be brought only by the Attorney General or by a private party acting with the consent of the Attorney General.
It may be brought against:
- Any person who usurps, intrudes into, or unlawfully holds or exercises any public office or franchise; or
- Any corporation, either de jure or de facto, which usurps, intrudes into, or unlawfully holds or exercises any franchise within California. (Code Civ. Proc., § 803.) The remedy of quo warranto is vested in the People, and not in any private individual or group, because disputes over title to public office are viewed as a public question of governmental legitimacy and not merely a private quarrel among rival claimants. It is the Attorney General who must control the suit. No matter how significant an interest an individual or entity may have, there is no independent right to sue. (Oakland Municipal Improvement League v. City of Oakland (1972) 23 Cal.App.3d 165, 170.) This requirement is jurisdictional. The court may not hear the action unless it is brought or authorized by the Attorney General. (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 633, certiorari denied 396 U.S. 821.)
The sole exception to the Attorney General's exclusive control of quo warranto actions is found in section 811 of the Code of Civil Procedure. The section authorizes the legislative bodies of local governmental entities to maintain an action against those holding franchises within their jurisdiction, and Attorney General consent is not required. The section requires that the franchise be of a type authorized by the local jurisdiction. (San Ysidro Irrigation District v. Superior Court (San Diego) (1961) 56 Cal.2d 708, 716.) This section was added by the Legislature in 1937 because local government was viewed as able to respond more effectively to this type of local problem. (See Note (1963) 15 Hastings L.J. 199, 224; Note (1937) 11 So.Cal.L.R. 1, 50-51.)
Although the Attorney General occasionally brings a quo warranto action on the initiative of that office, or at the direction of the Governor, usually the action is filed and prosecuted by a private party who has obtained the consent of the Attorney General, for "leave to sue in quo warranto." The private party who obtains leave to sue is termed the "relator." The action is brought in the name of the People of the State of California "on the relation of" the private party who has been granted permission to bring the action. The addition of a relator does not convert a quo warranto into a private action. The matter is always brought and prosecuted on behalf of the public. (People v. City of Huntington Beach (1954) 128 Cal.App.2d 452, 455.)
Even though permission has been granted to a private party to sue, the action does not lose its public character. The Attorney General remains in control of the action and may, for instance, dismiss it over the objection of the private party bringing it or refuse to permit appeal of an adverse ruling. (People v. Petroleum Rectifying Co. (1937) 21 Cal.App.2d 289, 291-292.)
Quo warranto is intended to prevent a continuing exercise of an authority unlawfully asserted, and is not appropriate for moot or abstract questions. Where the alleged usurpation has terminated, quo warranto will be denied. (People v. City of Whittier (1933) 133 Cal.App. 316, 324; 25 Ops.Cal.Atty.Gen. 223 (1955).) By the same token, because quo warranto serves to end a continuous usurpation, no statute of limitations applies to the action. (People v. Bailey (1916) 30 Cal.App. 581, 584-585.)
The remedies available in a quo warranto judgment do not include correction or reversal of acts taken under the ostensible authority of an office or franchise. Judgment is limited to ouster or forfeiture (and possibly a fine or damages), and may not be imposed retroactively upon prior exercise of official or corporate duties. (Ensher, Alexander & Barsoom, Inc. v. Ensher (1965) 238 Cal.App.2d 250, 255.)
Normally, quo warranto is the exclusive remedy in cases in which it is available. (Cooper v. Leslie Salt Co., supra, 70 Cal.2d at pp. 632-633.) Title to an office may not be tried by mandamus, by injunction, by writ of certiorari, or by petition for declaratory relief. (Stout v. Democratic County Central Com. (1952) 40 Cal.2d 91 (mandamus); International Assn. of Fire Fighters v. City of Oakland, supra, 174 Cal.App.3d at pp. 693-694 (injunction); Hull v. Superior Court (1883) 63 Cal. 174, 177 (writ of certiorari); Cooper v. Leslie Salt Co., supra, 70 Cal.2d at p. 634 (declaratory relief).
The existence of other remedies does not prevent the state from bringing a quo warranto proceeding. (Citizens Utilities Co. v. Superior Court (1976) 56 Cal.App.3d 399, 405; 18 Ops.Cal.Atty.Gen 7 (1951).) For example, the fact that criminal proceedings may be brought against a corporation does not prevent the state from initiating ouster proceedings through quo warranto. (Id. at 406; 22 Ops.Cal.Atty.Gen. 122 (1953).) Quo warranto tries title to public office; it may not be used to remove an incumbent for misconduct in office. (Wheeler v. Donnell (1896) 110 Cal. 655.)
In the past, quo warranto proceedings were frequently utilized to challenge the validity of completed annexation proceedings. Mandamus pursuant to Code of Civil Procedure section 1085 was used to challenge incomplete annexations. (See generally Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 271; Hills for Everyone v. Local Agency Formation Commission (1980) 105 Cal.App.3d 461, 470.) Today, a statutory procedure exists to challenge such completed annexations, and quo warranto, although still available, is rarely utilized.
At present, the most common application of the quo warranto procedure is adjudicating the right of individuals to hold public office. A "public" office is one in which "the incumbent exercises some of the sovereign powers of government." (Stout v. Democratic County Central Com., supra, 40 Cal.2d at p. 94.)
While quo warranto is regarded as the exclusive remedy to try title to public office, under certain circumstances a court will consider title to an office in a mandamus proceeding under section 1085 of the Code of Civil Procedure when title is "incidental" to the primary issue to be resolved by the action. Generally, this occurs when a de facto officer brings an action such as mandamus to recover some incident of office, such as salary, and a determination as to whether the petitioner is entitled to recover the incident of office must necessarily be preceded by a ruling as to whether the petitioner is entitled to the office. (See Klose v. Superior Court (1950) 96 Cal.App.2d 913 and cases cited therein.) The court must decide whether title may be decided in the action "incidentally" to the ostensible primary issue. (Stout v. Democratic County Central Comm., supra, 40 Cal.2d at 94; see also Lungren v. Deukmejian (1988) 45 Cal.3d 727.)