Lamb v. Webb

Quo Warranto—Application by Private Person for Leave to Sue— Discretion of Attorney-General—Control by Courts.—Assuming that the discretion of the attorney-general, under section 803 of the Code of Civil Procedure, in refusing leave to a private person to bring an action in the name of the state against an alleged usurper of a public office is subject to the control of a court, the power of the court to compel him to violate his own judgment by ordering him to grant leave to commence a suit, against his own conviction and conscientious belief that such leave should not be given, should be exercised only where the abuse of discretion by him in refusing the leave is extreme and clearly indefensible. When such an extreme case does not appear, a decree of a court compelling him to act against his judgment is erroneous and is itself an abuse of discretion.

Id.—Insufficient Showing on Application—Allegations on Information and Belief.—At a general election the plaintiff and the defendant Glass had been candidates for the office of supervisor, and the election resulted in a tie. In pursuance of the provisions of section 1067 of the Political Code a special election was ordered and held, at which such defendant obtained a majority of the votes cast thereat, and received his certificate of election, under which he entered upon the possession of the office and was discharging its duties. No objection to the regularity and legality of the special election had ever been made and no proceeding had ever been instituted to assail it. The plaintiff thereafter applied to the attorney-general for leave to sue the defendant Glass under section 803 of the Code of Civil Procedure on the ground that Glass was usurping the franchises of said office, and at that time presented to him a document in the form of a verified complaint which he intended to file in his proposed suit. The complaint alleged on information and belief that at the general election four named persons were allowed to vote who were not residents of their voting precincts, whose votes were counted for Glass, and that an unnamed number of ballots having distinguishing marks thereon, the nature of which was not stated, were counted for Glass, and an unnamed number of legal ballots for the plaintiff were rejected. This complaint was the only showing made to the attorney-general in support of the application for leave to sue. Meld, that the showing made, being solely upon information and belief, was not sufficient to warrant a court in holding that the attorney-general ought to have been convinced that he had “reason to believe” that Glass had unlawfully intruded into and usurped said office of supervisor, and that a judgment directing a peremptory writ of mandate to the attorney-general commanding him, to grant leave to sue was erroneous.

Id.—Affidavits on Application Should Be Positive.—An application to the attorney-general for\ leave to sue under section 803 of the Code of Civil Procedure should be based on affidavits so full and positive from persons knowing the facts as to make out a clear case of right in such a way that perjury may be brought if any material allegation is false.