| Prerogative writs |
|---|
| Administrative law |
|---|
| General principles |
| Grounds forjudicial review |
| Administrative law in common law jurisdictions |
| Administrative law in civil law jurisdictions |
| Related topics |
In the English-Americancommon law,quo warranto (Medieval Latin for "by what warrant?") is aprerogative writ issued by acourt which orders someone to show what authority they have for exercising some right, power, orfranchise they claim to hold. The writ ofquo warranto still exists in theUnited States, although it is uncommon, but it has been abolished inEngland andWales.Quo warranto is also used, with slightly different effect, in thePhilippines.
With the spread of royal justice in the 12th and 13th centuries, private franchises and liberties were increasingly called upon to uphold the king's peace: to act against "malefactors and peace breakers, so that it may appear that you are a lover of our peace".[1] From 1218 onwards,[2] royalEyres also began using the oldwrit ofquo warranto – a court order to show proof of authority, as for example (literally) "By what warrant are you the sheriff?" – to investigate the origins of such franchises.[3] An inquest of 1255 began examining such liberties nationwide;[4] and the same enquiry was taken up again by KingEdward I of England in 1278, when he decreed in theStatute of Gloucester that "We must find out what is ours, and due to us, and others what is theirs, and due to them".[5]
From one point of view this can be seen as an attempt to investigate and recover royal lands, rights, and franchises inEngland,[6] in particular those lost during the reign of his father,King Henry III of England.[7][8] From another, it was less of an attack on franchises as a clarification of them: inHilda Johnstone's words, "Edward's aim, it is clear, was from the first not abolition but definition".[5]
| Statute of Quo Warranto | |
|---|---|
| Act of Parliament | |
 | |
| Long title | Statutum de Quo Warranto |
| Citation | 18 Edw. 1 (Ruffhead: 18 Edw. 1. Stat. 2) |
| Dates | |
| Repealed | 15 August 1879 |
| Other legislation | |
| Repealed by | Civil Procedure Acts Repeal Act 1879 |
Status: Repealed | |
| Statutum de Quo Warranto Novum | |
|---|---|
| Act of Parliament | |
| |
| Long title | Statutum de Quo Warranto Novum |
| Citation | 18 Edw. 1 (Ruffhead: 18 Edw. 1. Stat. 3) |
| Dates | |
| Repealed | 15 August 1879 |
| Other legislation | |
| Repealed by | Civil Procedure Acts Repeal Act 1879 |
Status: Repealed | |
A similar ambiguity surrounds the role of the justices that, from 1278 to 1294, Edward dispatched throughout theKingdom of England to inquire "by what warrant" English lords claimed their liberties and exercised jurisdiction, including the right to hold a court and collect its profits. Some of the justices demanded written proof in the form of charters, others accepted a plea of "immemorial tenure";[9] and resistance[10] and the unrecorded nature of many grants meant that eventually, by theStatute of Quo Warranto (18 Edw. 1) (1290), the principle was generally accepted that those rights peacefully exercised since 1189 – the beginning of the reign of Richard I, which is the legal definition in England of the phrase "time immemorial"[6][11] – were legitimate.[12]
Thequo warranto pleas from the reigns of Edward I,Edward II andEdward III were published by theRecord Commission in 1818.[13]
The most famous historical instance ofquo warranto was the action taken against theCorporation of London byCharles II in 1683.[14] TheKing's Bench adjudged the charter and franchises of the City of London to be forfeited to the Crown, though this judgment was reversed by theLondon, Quo Warranto Judgment Reversed Act 1689 shortly after theGlorious Revolution.
But the remodelling of the City of London was only part of a wider remodelling of some forty chartered parliamentary boroughs by the Crown[15] – a policy taken up again in 1688 byJames II, when some thirty-five new charters were issued after quo warranto produced the surrender of the old ones.[16] This Quo Warranto remodelling or 'dissolution' of the parliamentary corporations gave point to the claim byWilliam III that "our expedition is intended for no other design but to have a free and lawful parliament assembled", and underpinned the charge in theBill of Rights that James had been "violating the freedom of election by members to serve in parliament".[17]
Whilequo warranto remains in use in the United States, the Philippines, and other jurisdictions, in some jurisdictions that have enactedjudicial review statutes, the prerogative writ ofquo warranto has been abolished.
Quo warranto writs have been abolished in theAustralian states ofNew South Wales (as of the Supreme Court Act 1970)[18] andQueensland (as of the Judicial Review Act 1991).[19]
The writ ofquo warranto and its replacement, the information in the nature of aquo warranto are either obsolete or have been abolished. Section 30 of theSenior Courts Act 1981 grants to theHigh Court the power to issue an injunction to restrain persons from acting in offices in which they are not entitled to act and to declare the office vacant if necessary.
Quo warranto could be brought against a corporation when it misuses its franchise. In 1890, theSupreme Court of Ohio wrote:
The corporation has received vitality from the state. It continues during its existence to be the creature of the state, must live subservient to its laws, and has such powers and franchises as those laws have bestowed upon it, and none others. As the state was not bound to create it in the first place, it is not bound to maintain it after having done so, if it violates the laws or public policy of the state, or misuses its franchises to oppress the citizens thereof.[20]
In 1876, the Pennsylvania senate passed a resolution instructing the Attorney General to beginquo warranto proceedings torevoke the charter of theBaltimore, Philadelphia and New York Railroad.[21]
In the modernUnited States,quo warranto usually arises in acivil case as aplaintiff's claim (and thus a "cause of action" instead of a writ) that some governmental or corporate official was not validly elected to that office or is wrongfully exercising powers beyond (orultra vires) those authorized by statute or by the corporation's charter.
InNew York State, the former writ ofquo warranto has beencodified. Per Executive Law § 63-b, only the Attorney General, at his or her discretion, "may maintain an action, upon his own information or upon the complaint of a private person, 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."[22]
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Aquo warranto petition was, before the appointment ofJose Calida asSolicitor General, a very seldom used Philippineextraordinary writ. Its name derives from the Latin questionquo warranto, which means "by what authority?"[note 1][23] In its early days, during theAmerican colonial period,quo warranto was mostly used to challenge ademocratic election, that is, to make the claim that the person who is holding an office is ausurper, and that someone else deserves the office, e.g., due toelectoral fraud orineligibility.[24] Indeed, this is the only way the term is used inlaw professor Ernesto C. Salao's[note 2] widely cited 858-pagebookThe 1987 Constitution of the Republic of the Philippines (2001ed.).[25]
It has come to be understood that it can be used in extraordinary cases to unseat judicial appointees, and impeachable officials, not only to challenge elections. Some, such as Ranhilio Aquino,[note 3] argue this due to the fact that the President and Vice President were explicitly enumerated as vulnerable toquo warranto by the Supreme Courtsitting as thePresidential Electoral Tribunal,[26][27] and, unlike many other constitutions, Article 11 of the1987 Constitution does not exclusively grant the power of impeachment to Congress.[26]
Quo warranto petitions, when successful, do not "remove" someone from office—they declare the very appointment itselfnull and voidab initio, meaning that the office was never legally held as it has been declared to have been assumed underfalse pretenses.[28] This is precisely what happened in the highly controversialquo warranto petition against Maria Lourdes Sereno. Sereno had served on the Supreme Court of the Philippines asde factoChief Justice of the Philippines from 2012 to 2018, and as a regularAssociate Justice since August 2010, when she was appointed byPresidentBenigno Aquino III. Instead of removing Sereno from office by the mechanism of impeachment, Callida chose to use what one justice called this "road less travelled" ofquo warranto.
Quo warranto was also used, once again by Calida, to challenge the continued operation of ABS-CBN after the expiration of its Congressional franchise. This use ofquo warranto in a dispute overlicensure was as novel as it was literal: it strips away the traditions surrounding the use ofquo warranto and refocusesquo warranto on the meaning of its name, asking by what legal authority does ABS-CBN continue to operate. However, the expiration of the franchise and later actions by theNational Telecommunications Commission made Calida'squo warranto petitionmoot.