CHAPTER XVI. Actions in Behalf of the People and Special Proceedings Instituted in Their Behalf, by State Writ. TITLE I.-Actions in Behalf of the People. TITLE II.-Special Proceedings Instituted by State Writ. TITLE I. Actions in behalf of the people. Article 1. Action against the usurper of an office or franchise. 2. Action to vacate letters-patent. 3. Action for a fine, penalty or forfeiture, or upon a forfeited recognizance. 4. Certain actions, founded upon the spoliation, or other misappro- 5. Action to recover property escheated, or forfeited for treason. ARTICLE FIRST. Action against the usurper of an office or franchise. Sec. 1943. Attorney-general may maintain action. 1949. Proceedings when complaint names rightful incumbent. 1951. Assumption of office by person entitled. 1952. Proceedings to obtain books and papers. 1953. Damages; how recovered. 1954. One action against several persons. 1955. When injunction may be granted. 1956. Final Judgment in action for usurping office, etc. 1948. Attorney-general may maintain action. The attorney-general may maintain an action, upon his own information, or upon the complaint of a private person, in either of the following cases: 1. 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. 2. Against a public officer, civil or military, who has done or suffered an act, which by law works a forfeiture of his office. 3. Against one or more persons who act as a corporation, within the State, without being duly incorporated; or exercises within the State, any corporate rights, privileges or franchises, not granted to them by the law of the State. 4. [Added, 1896.] Against a foreign corporation which exercises within the state any corporate rights, privileges or franchises, not granted to it by the law of this state; or which within the state, has violated any provision of law, or, contrary to law, has done or omitted any act, or has exercised a privilege or franchise, not conferred upon it by the law of this state, where, in a similar case, a domestic corporation would, in accordance with section seventeen hundred and ninety-eight of this act, be liable to an action to vacate its charter and to annul its existence: or which exercises within the state any corporate rights, privi leges or franchises in a manner contrary to the public policy of the state. Co. Proc., § 432; 2 R. S. 581, § 28 (2 Edm. 603); L. 1896, ch. 962. In effect May 28, 1896. 1949. Proceedings incumbent. when complaint names rightful In an action, brought as prescribed in the last section, for usurping, intruding into, unlawfully holding, or exercising an office, the attorney-general, besides stating the cause of action in the complaint, may, in his discretion, set forth therein the name of the person rightfully entitled to the office, and the facts showing his right thereto; and thereupon, and upon proof, by affidavit, that the defendant, by means of his usurpation or intrusion, has received any fees or emoluments belonging to the office, an order to arrest the defendant may be granted by the court, or a judge. The provisions of title first of chapter seventh of this act apply to such an order, and the proceedings thereupon and subsequent thereto, except where special provision is otherwise made in this title. For that purpose, the order is deemed to have been made as prescribed in section 549 of this act. Judgment may be rendered upon the right of the defendant, and of the party so alleged to be entitled; or only upon the right of the defendant, as justice requires. Co. Proc., 435 and 436; 2 R. S. 532, §§ 30 and 31 (2 Edm. 603), am'd § 1950. Action triable by jury. An action brought as prescribed in this article is triable, of course and of right, by a jury, in like manner as if it was an action specified in section 968 of this act, and without procuring an order, as prescribed in section 970 of this act. } 1951. Assumption of office by person entitled. Where final judgment is rendered, upon the right and in favor of the person so alleged to be entitled, he may, after taking the oath of office, and giving an official bond, as prescribed by law, take upon himself the execution of the office. He must, immediately thereafter, demand of the defendant in the action, delivery of all the books and papers in the custody, or under the control, of the defendant, belonging to the office from which the defendant has been so excluded. Co. Proc.. § 437; 2 R. S. 582, § 32 (2 Edm. 603). 1952. Proceedings to obtain books and papers. If the defendant refuses or neglects to deliver any of the books or papers, demanded as prescribed in the last section, he is guilty of a misdemeanor; and the same proceedings must be taken to compel the delivery thereof as are now or shall hereafter be prescribed by law, where a person who has held an office refuses or neglects to deliver the official books or papers to his successor. 14., § 438, and 2 R. S. 582, § 33. See § 1323, ante. { 1953. [Am'd, 1884.] Damages; how recovered. Where final judgment has been rendered, upon the right and in favor of the person so alleged to be entitled, he may recover, by action, against the defendant, the damages which he sustained in consequence of the defendant's usurpation, intrusion into, unlawful holding, or exercise of the office. Co. Proc., 439; also, 2 R. S. 582, §§ 34-38. § 1954. One action against several persons. Where two or more persons claim to be entitled to the same office or franchise, the attorney-general may bring the action against all, to determine their respective rights thereto. Id., § 440; 2 R. S. 582, § 45. § 1955. [Am'd, 1896.] When injunction may be granted. In an action, brought as prescribed in subdivision third or fourth of section nineteen hundred and forty-eight of this act, the final judgment, in favor of the plaintiff, must perpetually restrain the defendant or defendants from the commission or continuance of the act or acts complained of. A temporary injunction to restrain the commission or continuance thereof may be granted, upon proof, by affidavit, that the defendant or defendants have violated any of the provisions of either of the said subdivisions third or fourth of section nineteen hundred and forty-eight of this act. The provisions of title second of chapter seventh of this act apply to such a temporary injunction, and the proceedings thereupon, except where provision is otherwise made in this title. For that purpose, the injunction order is deemed to have been granted as prescribed in section six hundred and three of this act. In the trial of an action brought as prescribed in subdivisions third or fourth of section nineteen hundred and forty-eight of this act, a party or a witness is not excused from answering a question on the ground that such answer will tend to incriminate him; but such answer cannot be used as evidence against the person so answering, in a criminal action or criminal proceeding. 2 R. S. 402, § 31 and part of § 32 (2 Edm. 482); L. 1896, ch. 963. In effect May 28, 1896. See § 1948, subd. 3, ante. § 1956. Final judgment in action for usurping office, etc. In any other action, brought as prescribed in this article, where a defendant is adjudged to be guilty of usurping or intruding into, or unlawfully holding or exercising an office, franchise or privilege, final judgment must be rendered, ousting and excluding him therefrom, and in favor of the people or the relator, as the case requires, for the costs of the action. As a part of the final judgment, the court may, in its discretion, also award, that the defendant, or, where there are two or more defendants, that one or more of them pay to the people a fine, not exceeding two thousand dollars. The judgment for the fine may be docketed, and execution may be issued thereupon, in favor of the people, as if it had been rendered in an action to recover the fine. The fine, when collected, must be paid into the treasury of the State. Co. Proc., § 441; also, 2 R. S. 585, § 48 (2 Edm. 606). 526 ARTICLE SECOND. Action to vacate letters-patent. Sec. 1957. When attorney-general may maintain action. 1958. Action triable by jury. 1959. Copy of judgment-roll to be filed, etc. 1960. Transcript to be sent to county clerk, etc. 1957. When attorney-general may maintain action. The attorney-general may maintain an action to vacate or annul letters-patent, granted by the people of the State, in either of the following cases: 1. Where they were obtained by means of a fraudulent suggestion, or concealment of a material fact, made by, or with the knowledge or consent of, the person to whom they were issued. 2. Where they were issued in ignorance of a material fact, or through mistake. 3. Where the patentee, or those claiming under him, have done or omitted an act, in violation of the terms and conditions upon which the letters-patent were granted, or have, by any other means, forfeited the interest acquired under the same. Whenever the attorney-general has good reasor to believe that any act or omission, specified in this section, can be proved, and that the person to be made defendant has no sufficient legal defence, he must commence such an action. Co. Proc., § 433. 1958. Action triable by jury. An action, brought as prescribed in this article, is triable, of course and of right, by a jury, as if it was an action specified in section 968 of this act, and without procuring an order, as prescribed in section 970 of this act. See § 1950, ante. 1959. Copy of judgment-roll to be filed, etc. Where final judgment, vacating or annulling letters-patent, is rendered in an action, brought as prescribed in the last section, the attorney-general must cause a copy of the judgment-roll to be forthwith filed in the office of the secretary of State; who must make an entry in the records of the commissioners of the land office stating the substance and effect of the judgment, and the time when the judgment-roll was filed. The real property, granted by those letters-patent, may thereafter be disposed of by the commissioners of the land office, as if the letters-patent had not been issued. Co. Proc., § 446, and part of § 445, am'd and consolidated; 2 R. S. 580, §§ 24 and 25 (2 Edm. 601). { 1960. Transcript to be sent to county clerk, etc. Immediately after making the entry prescribed in the last section, the secretary of State must transmit a certified transcript thereof to the clerk, or the register. as the case requires, of each county, in which the real property affected by the judg ment is situated. The clerk or register must file it: and. if the letters-patent are recorded in his office, he must note the contents of the transcript in the margin of the record. L. 1845, ch. 110. § 1 (4 Edm. 438). ARTICLE THIRD. Action for a fine, penalty, or forfeiture, or upon a forfeited recog nizance Sec. 1961. When action cannot be maintained. 1962. Action for forfeiture, etc. 1963. Money recovered; how disposed of. 1964. Certain proceedings in the action regulated. 1965. Recognizance; how forfeited. 1966. Action on recognizance. 1967. Money received by district-attorney; how disposed of. § 1961. [Am'd, 1895.] When action cannot be maintained. Whenever, by the decision of the appellate division of the supreme court, a construction is given to a statute, an act done, in good faith, and in conformity to that construction, after the decision was made, and before a reversal thereof by the court of appeals, is so far valid, that the party doing it is not liable to any penalty or forfeiture, for an act that was adjudged lawful by the decision of the court below. But this section does not control r affect the decision of the court of appeals, upon an appeal actually taken before the reversal. 2 R. S. 602, § 66 (2 Edm. 624), am'd; L. 1895, ch. 946. } 1962. Action for forfeiture, etc. Where real or personal property has been forfeited, or a penaltyincurred, to the people of the State; or to an officer, for their se, pursuant to a provision of law, the attorney-general, or the district-attorney of the county in which the action is triable, must bring an action to recover the property or penalty, in a court having jurisdiction thereof. Where the supreme court and a justice's court have concurrent jurisdiction of the action, it may be brought in either, at the election of the attorney-general or district-attorney. A recovery in such an action bars a recovery, in any other action, brought for the same cause. See Co. Proc., § 447; 2 R. S. 481, § 3 (2 Edm. 503). { 1963. Money recovered; how disposed of. Money recovered in such an action, which is not otherwise specially granted or appropriated by law, must, when collected, be paid into the treasury of the State. See, also, id., R. S., § 3. 1964. Certain proceedings in the action regulated. Sections 1897 and 1898 of this act apply to an action, brought as prescribed in the last two sections. See $7 and 15, R. S. 1965. Recognizance; how forfeited. Where the condition of a recognizance is broken, an order of the court, directing the prosecution of the recognizance, is a sufficient forfeiture thereof. Id., 31. 1966. Action on recognizance. Where a recognizance to the people is forfeited, the districtattorney of the county in which it was taken, must, unless the |