any person injured thereby, or who is by law entitled to the benefit of the security, may bring an action thereon, in his own name, against the officer and his sureties, to recover the amount to which he is entitled by reason of the delinquency. §3. Leave to bring action. Before an action can be brought by a plaintiff, other than the state or body politic named in the bond, leave shall be obtained of the district court, or a judge thereof, within the county where the action is triable, by the production of a copy of the bond, and an affidavit showing the delinquency; and if the delinquency is such that, if established on the trial, it would entitle the party applying to recover in the action, leave shall be granted. § 4. Several actions on same bond. A judgment in favor of a party for one delinquency does not preclude the same or another party from an action on the same security for another delinquency. $5. Execution, how indorsed. Upon the execution issued on a judgment recovered, upon the official security of a public officer, against him and a surety, there shall be indorsed a direction to the officer to whom the execution is delivered, to collect the same out of the property of the principal, if sufficient can be found, and if not, then to collect it out of the property of the surety. § 6. Actions for fines and forfeitures—by whom brought. Actions for fines and forfeitures may be prosecuted by the officers or persons to whom they are by law given, or who, by special provisions of law, are authorized to recover them; and, whether prosecuted by public officers or by private persons, are governed by the same rules as other civil actions, except as herein otherwise prescribed. § 7. Action for penalty-amount recoverable. When an action is brought for a penalty which is limited by law not to exceed a certain amount, the action may be brought for that amount, and upon trial, the amount recovered shall be determined in proportion to the offence. § 8. Same-collusive recovery not a bar to another action. A recovery of a judgment for a penalty or forfeiture, by collusion between the parties, with intent to save the defendant from the consequences contemplated by law, in case where the penalty or forfeiture is given wholly or partly to the prosecutor, does not prevent the recovery of the same by another person. § 9. Fines, how disposed of action by state for forfeited property. Fines and forfeitures not specially granted or appropriated by law shall be paid into the treasury of the county where the same are incurred; and whenever any property, real or personal, is forfeited to the state, or to any officer for its use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought, by the proper officer, in the district court of any county where such property may be. (As amended 1870, c. 73, § 1.) $10. Prosecutions for fines, etc.-in what court-commitment of defendant. All fines and forfeitures imposed as a punishment for any offence, or for the violation or neglect of any duty imposed by statute, may be prosecuted for and recovered by indictment in the district court; or, when the amount or value thereof does not exceed one hundred dollars, the same may be prosecuted for by complaint before a justice of the peace, who shall have jurisdiction therefor concurrently with the district court; and in all cases of the imposition of a fine pursuant to statute, as punishment for any offence, the offender may be committed till the same is paid, or he is otherwise discharged according to law. CHAPTER LXXIX. ACTIONS TO VACATE CHARTERS AND LETTERS PATENT, AND TO PREVENT THE USURPATION OF AN OFFICE OR FRANCHISE. § 1. Action to annul act of incorporation obtained by fraud. An action may be brought by the attorney general, in the name of the state, whenever the legislature so directs, against a corporation, for the purpose of vacating or annulling the act of incorporation, or an act renewing its corporate existence, on the ground that such act or renewal was procured upon some fraudulent suggestion, or concealment of a material fact, by the persons incorporated, or some of them, or with their knowledge and consent. § 2. Action to vacate charter, etc., of corporation. An action may be brought by the attorney general, in the name of the state, for the purpose of vacating the charter, or annulling the existence, of a corporation, other than municipal, whenever such corporation: First.-Offends against any of the provisions of the act or acts creating, altering or renewing such corporation; or, Second.-Violates the provisions of any law by which such corporation forfeits its charter by abuse of its powers; or, Third.-Whenever it has forfeited its privileges or franchises, by failure to exercise its powers; or, Fourth. Whenever it has done or omitted any act which amounts to a surrender of its corporate rights, privileges and franchises; or, Fifth. Whenever it exercises a franchise or privilege not conferred upon it by law. And the attorney general shall bring the action in every case of public interest, whenever he has reason to believe that any of these acts or omissions can be proved; and also in every other case in which satisfactory security is given to indemnify the state against the costs and expenses to be incurred thereby. 21 M. 339. §3. Action against persons usurping or forfeiting offices or franchises, etc. An action may be brought by the attorney general, in the name of the state, upon his own information, or upon the complaint of a private party, against the party offending in the following cases: First. When any person usurps, intrudes into, or unlawfully holds or exercises any public office, or any franchise, within this state, or any office in a corporation created by the authority of this state; or, Second. When any public officer has done or suffered an act which, by the provisions of law, causes a forfeiture of his office; or, Third. When any association or number of persons act within this state as a corporation, without being duly incorporated. And the attorney general shall bring the action whenever he has reason to believe that any of these acts can be proved. § 4. Action to vacate letters patent. An action may be brought by the attorney general, in the name of the state, for the purpose of vacating or annulling letters patent granted by the state, in the following cases: First. When he has reason to believe that such letters patent were obtained by means of some fraudulent suggestion, or concealment of a material fact, made by the person to whom the same were issued, or made with his consent or knowledge; or, Second. When he has reason to believe that such letters patent were issued through mistake, or in ignorance of a material fact; Third. When he has reason to believe that the patentee, or those claiming under him, have done or omitted any act in violation of the terms and conditions on which the letters patent were granted, or have by any other means forfeited the interest acquired under the same. § 5. Name of complainant to be joined as party with state. When an action is brought by the attorney general, by virtue of this chapter, on the complaint or information of any person having an interest in the question, the name of such person shall be joined with the state as plaintiff. 3 M. 164 (240). § 6. Action for usurping office-complaint judgment. Whenever such action is brought against a person for usurping an office, the attorney general, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto; and, in every such case, judgment may be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice requires. § 7. Same claimant, on qualifying, to have possession of office, etc. If judgment is rendered in favor of the person so alleged to be entitled, he shall be entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office, and may be put in possession thereof, and of the books and papers belonging thereto, by order of the court; and any party refusing to deliver the same, when ordered by the court, shall be punished as for a contempt; and he may also recover, by action, the damages which he sustains by reason of the usurpation of the office by the defendant. § 8. Same all claimants may be joined in one action. When several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise. $9. Judgment against usurpers of offices or franchises-fines. When a person or a corporation is adjudged guilty of usurping or intruding into, or unlawfully holding or exercising, any office, franchise or privilege, judgment shall be rendered that such person or corporation be excluded from the office, franchise or privilege. The court may also, in its discretion, impose upon the defendant a fine not exceeding one thousand dollars. § 10. Corporation adjudged dissolved, when. If it is adjudged that a corporation has, by neglect, abuse or surrender, forfeited its corporate rights, privileges and franchises, judgment shall be rendered that the corporation be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved. $11. Costs, how collected in action against corporation, etc. If judgment is rendered in such action against a corporation, or against persons claiming to be a corporation, the court may cause the costs therein to be collected by execution against the persons claiming to be a corporation, or by process against the directors or other officers of such corporation. §12. Judgment against corporation-injunction-receiver. When such judgment is rendered against a corporation, the court has power to restrain the corporation, to appoint a receiver of its property, and take an account, and make distribution thereof among its creditors; and the attorney general, immediately after the rendition of such judgment, shall institute proceedings for that purpose. § 13. Copy of judgment-roll to be filed with secretary of state. Upon the rendition of such judgment against a corporation, or for the vacating or annulling of letters patent, the attorney general shall cause a copy of the judgment-roll to le forthwith filed in the office of the secretary of state. SECTION. CHAPTER LXXX. SPECIAL PROCEEDINGS. WRIT OF MANDAMUS. 1-8 To whom it may issue-on whose information WRIT OF PROHIBITION, 15-19. Issuance and contents-service and return -proceedings when party adopts return of court, etc.-when he does not adopt itJudgment and contents thereof-prohibition absolute or writ of consultation. WRIT OF HABEAS CORPUS. SECTION. 28-33. 34-42. 43-48. 49-53. 20-27. Who may prosecute writs-who may notapplication, to whom, where and how made-proof required in certain casespetition to state, what-form of writ- 54. when sufficient-refusal to grant writ penalty. Return to contain, what-body to be pro- Hearing on return-prisoner to be dis- Power of court to issue writ for various pur- TITLE 1. WRIT OF MANDAMUS. § 1. Mandamus, how regulated. The writ of mandamus is regulated as in this chapter prescribed. § 2. To whom writ may issue, eto. It may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion. 2 M. 298 (346); 15 M. 177; 17 M. 429; 18 M. 40. §3. Restriction on issue of writ-on whose information to issue. The writ shall not issue in any case where there is a plain, speedy and adequate remedy, in the ordinary course of law. It shall issue on the information of the party beneficially interested. 17 M. 215. § 4. Alternative and peremptory writs-form and contents. The writ of mandamus is either alternative or peremptory. The alternative writ shall state concisely the facts showing the obligation of the defendant to perform the act, and his omission to perform it, and command him that immediately after the receipt of a copy of the writ, or at some other specified time, to do the act required to be performed, or show cause before the court out of which the writ issued, at a specified time and place, why he has not done so; and that he then and there make his return to the writ, with his certificate on such return of having done as he is commanded. The peremptory writ shall be in similar form, except that the words requiring the defendant to show cause why he has not done as commanded shall be omitted. (As amended 1875, c. 68, § 1.) 2 M. 148 (180), 294 (342), 297 (344), 298 (346); 12 M. 382. § 5. Peremptory writ allowed, when. When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases, the alternative writ shall be first issued. § 6. Allowance and endorsement of writ-service. The court or judge, by an endorsement on the writ, shall allow the same, and designate the return-day thereof, and direct the manner of the service thereof: provided, that such service shall be by copy of the writ, and of the allowance thereof, and of any order or direction of said court or judge endorsed upon said writ. (As amended 1875, c. 68, § 2.) 7. Answer, when and how made. On the return-day of the alternative writ, or such further day as the court allows, the party on whom the writ is served may show cause by answer, made in the same manner as an answer to a complaint in a civil action. § 8. Default-peremptory writ-new matter in answer. If no answer is made, a peremptory mandamus shall be allowed against the defendant; if an answer is made containing new matter, the plaintiff may, on the trial or other proceedings, avail himself of any valid objection to its sufficiency; or may countervail it by evidence, either in direct denial, or by way of avoidance. § 9. Writ and answer-amendments-issues, trial, etc. No other pleading or written allegation is allowed than the writ and answer. They shall be construed and amended in the same manner as pleadings in a civil action, and the issues thereby joined shall be tried, and further proceedings had, in the same manner as in a civil action. 15 M. 221. § 10. Effect of judgment for plaintiff. If judgment is given for the plaintiff, he shall recover the damages which he has sustained, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay. § 11. Court may impose fine for neglect of duty. Whenever a peremptory mandamus is directed to a public officer, body or board, commanding the performance of any public duty specially enjoined by law, if it appears to the court that such officer, or any member of such body or board, without just excuse, refuses or neglects to perform the duty so enjoined, the court may impose a fine, not exceeding two hundred and fifty dollars, upon every such officer or member of such body or board; such fine, when collected, shall be paid into the state treasury, and the payment of such fine is a bar to an action for any penalty incurred by such officer, or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined. 15 M. 221. $12. Jurisdiction of district court-mandamus to that court. The district court has exclusive original jurisdiction in all cases of mandamus, except where such writ is to be directed to a district court or a judge thereof in his official capacity, See next section. |