275; People v. Galesburg, 48 Ill. 485 (1868); Markle v. Wright, 13 Ind. 548 (1859); Hagner v. Heyberger, 7 Watts & Serg. (Pa.) 104 (1844).

The holding of an election will not be enjoined by a court of equity, since quo warranto is a complete remedy. People v. Galesburg, 48 Ill. 485 (1868); Dickey v. Reed, 78 Ill. 261 (1875); Darst v. People, 62 Ill. 306 (1872); Walton v. Develing, 61 Ill. 201 (1871). Ante, sec. 202, note. Where the remedy at law is inadequate, a court of equity may, for that reason, in proper cases, take jurisdiction. Ib. obiter; ante, sec. 275. Re Sawyer, 124 U. S. 200 (1887). The governor will not be restrained from granting a commission to an officer who has been improperly elected, any more than the courts would restrain the legislature from passing an unconstitutional act. Grier v. Taylor, Gov., 4 McCord (S. C.), 206 (1827), per Bay, J.; Chicago v. Evans, 24 Ill. 52 (1860); Smith v. McCarthy, 56 Pa. St. 359.

1 Ante, sec. 200 et seq.

The cases show some conflict of opinion in respect to when a special mode of con testing elections will exclude the mode by quo warranto. See on this subject, State v. Marlow, 15 Ohio St. 114 (1864); distinguished, People v. Hall, 80 N. Y. 117 (1880); Commonwealth v. Garrigues, 28 Pa. St. 9; Commonwealth v. Baxter, 35 Pa. St. 263; distinguished, People v. Hall, supra; Commonwealth v. Leech, 44 Pa. St. 332; Commonwealth v. Meeser, 44 Pa. St. 341; s. c. Brightly's Election Cases, 659, 663, which the learned editor of the volume last cited regards as in conflict with the Commonwealth v. McCloskey, 2 Rawle (Pa.), 369, two judges dissenting; approved, People v. Holden, 28 Cal. 123. Ante, secs. 202-205; Steele v. Martin, 6 Kan. 430; post, sec. 926.

In New York it is held that it is only the form of proceeding by quo warranto that is done away with by the code. People v. Hall, 80 N. Y. 117; s. c. 21 Alb. Law J. 484 (1880). The jurisdiction of the superior courts is not touched by legislation of the State. The charter of New York city provides that the board of aldermen shall be the judge of the election returns and qualifications of its own members, subject, however, to the review of any court of competent jurisdiction. The courts are not ousted thereby from an inquiry, in the first instance, as to the right to the office of alderman. The following summarizes the views of the court: The fact that the words used are similar to those in the State and Federal Constitutions, conferring a like power on each house of the legislature as to its members, does not exclude the jurisdiction of the courts. In the one case the jurisdiction is conferred by the people upon each branch of the legislature as a co-ordi nate body with the courts, and is necessarily exclusive. In England the power of the commons has been acquiesced in as exclusive in relation to this matter, though it was at times claimed and exercised by the king and council, by the House of Lords, and by the chancellor. The power is a necessary incident to every body of that description which emanates directly from the people. But this does not apply to a municipal corporation which is a creation of the legislature. The charter provision above mentioned does not give exclusive power in the first instance to the board of aldermen. The jurisdiction of the courts formerly existing is not taken away unless by express or plain provision to that effect. "It is a maxim in the common law that a statute made in the affirmative without any negative, expressed

or implied, does not take away the common law." Coke Inst. 199, chaps. xx.xxiv.; Rex v. Morely, 2 Burr. 1040; Heath, In re, 3 Hill, 52; People v. B. & R. T. Road, 23 Wend. 222. That rule applies here. The Supreme Court is not deprived of jurisdiction; a cumulative jurisdiction is created. The phrase in the charter, “subject, however, to the review of any court of competent jurisdiction," does not imply that the words giving the power would, without some restriction, have conferred sole, exclusive, and final jurisdiction. Whenever a new jurisdiction is erected, whether by public or private act, it is subject to inspection by the proper court by writ of error, certiorari, or mandamus. Lawton v. Comm'rs, 2 Caines, 181. The rule that where a new right, or the means of acquiring it, is conferred, and an adequate remedy for its invasion given by the same statute, parties injured are confined to the statutory redress (Dudley v. Weston, 3 N. Y. 9), does not apply. State v. Fitzgerald, 44 Mo. 425; Hummer v. Hummer, 3 Greene (Iowa), 42; Wammack v. Holloway, 2 Ala. 31; Murfree v. Leeper, 1 Overt. (Tenn.) 1; Burginhofen v. Martin, 3 Yeates (Pa.), 479; Commonwealth v. McCloskey, 2 Rawle, 369. In this case the relator, who claimed the office of alderman against the respondent, had instituted proceedings before the board of aldermen for the office, and this board had decided adversely to the relator, which proceedings had not been reversed when the proceedings in this suit were instituted. While the decision might be res adjudicata as to relator, it was not so as to the State. Duchess of Kingston's Case, 20 How. St. Tr. 355; Barr v. Jackson, 1 Phillips, 582; King v. Clarke, 1 East, 38; State v. Hardie, 1 Ired. 42. Ante, chap. ix., sec. 202 et seq.,

where the subject referred to in the text is considered at large.

1 Ante, sec. 202, and note; secs. 838, 842-846; Regina v. Leeds, 11 A. & E. 512; Regina v. Derby, 7 A. &. E. 419; Regina v. Chester, 5 El. & Bl. 531 ; Asken v. Manning, 38 Up. Can. Q. B. 345, and see Biggar, In re, 3 U. C. Q. B. 144; Regina v. O'Hare, 24 P. R. 18; Regina ɛ. Lindsay, 18 U. C. Q. B. 51; Regina v. St. Martin, 17 A. & E. 149; Regina v. Hertford, Col. L. R. 2 Q. B. Div. 590; State v. Moffitt, 5 Ohio, 358: Warner v. Myers, 3 Oreg. 218 (1870); State v. Choate, 11 Ohio, 511; State v. Bryce, 7 Ohio, Part 2, p. 82; People v. New York, 3 Johns. Cas. 79 (1802) (mandamus to admit aldermen). In the case last cited, the reason for the rule is thus stated by the court: 'Where the office is already filled by a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person, because the corporation, being a third party, may admit or not, at pleasure, and the rights of the party in office may be injured, without his having an opportunity to make defence. The proper remedy, in the first instance, is by information in the nature of a quo warranto, by which the rights of the parties may be tried." People v. New York, 3 Johns. Cas. 79, 80. Quo warranto lies to terminate right further to hold an office, notwithstanding the officer abandons the office. State v. Graham, 13 Kan. 136 (1874). See, also, People v. Sweeting, 2 Johns. 184; People v. Van Slyck, 4 Cow. (N. Y.) 297, 323; French v. Cowan, 79 Me. 426; Brennan v. Bradshaw, 53 Tex. 330, quoting the text; Stephens's Nisi Prius, 2445 et seq., where the validity and invalidity of corporate elections are fully treated.

1 Rex v. Saunders, 3 East, 119 (1802). In this case the relator, in 1802, stated that the defendant had been elected alderman in 1788, and that the corporation was dissolved in 1792, since which no acts had been attempted to be done by the corporate body, but that the defendant had made his appearance at Taunton at the last election for members of Parliament, and had there claimed, as alderman, to be returning officer, and had received votes as such, and had executed a separate return. Lord Ellenborough, C. J., delivering the judgment of the court, observed that "the corporation being stated to be actually dissolved, and no corporate body, claiming to be such, in existence, the act of this individual person was a mere nullity, and of no more effect than if a mere stranger had come into the town and claimed to be an alderman and returning officer. Here are no civil rights in controversy, which would warrant the court to interfere by their own authority; but what he claimed was a mere nullity. There was no such office in existence, and therefore no ground for our interference;" and the rule was refused.

2 State v. Lehre, 7 Rich. L. 234, 324 (1854), per Glover, J., who said: "It was contended, in argument, that there was no corporation, and that the election [for bank directors and president] is therefore void. If no corporation exist it would be nugatory and fruitless to proceed any further in the quo warranto, and call in question a harmless and pretended claim, where no civil right is in controversy. If there was no such corporation, there was no such officer, and it would be, as was said by Lord Ellenborough, in Rex v. Saunders (3 East, 119), as if a stranger

had come into town and claimed to be president or director."

8 People v. Carpenter, 24 N. Y. 86 (1861). This action was in the nature of quo warranto in the name of the people, and was brought to test the right of the defendant to exercise the duties and powers of supervisor of the town of Afton, and the case turned upon the sole point whether that town had been legally created. It was contended in argument that this form of action was not the appropri ate remedy to bring up that point for decision. Defendant's argument was, that if there was, as the plaintiffs allege, no such town as Afton, then it was impossible that defendant should exercise the duties of an office which had no existence. "But," says Davies, J., "we think the objection too technical. The object of the framers of the code, in the provisions in reference to these actions, manifestly was to provide a speedy and effective mode of determining the claims of persons to exercise the duties of any office within this State, and this necessarily involves the determination of the existence of the particu lar office." See, also, where same view was taken, The People v. Draper, 15 N. Y. 532, an action of like character, to test right of the defendants to the office of police commissioners under the Metropolitan Police District Act. in 4 Cow. 100 et seq.; State v. Carbindale Indep. Sch. Dist., 29 Iowa, 264 (1870); People v. Albertson, 55 N. Y. 50 (1873); People v. Clute, 52 N. Y. 576 (1873). The New York rule, stated in the text, is adopted and followed in Minnesota, where the provision of the statute in respect to quo warranto is taken from the New York code, and is considered by

And see note