The opinion
Frank A. Smith, Circuit Judge
(concurring specially).-I concur in the most able opinion of Mr. Justice Davis, except that I am unable to agree that quo warranto will lie to test the right of the Comptroller to enforce the Act because of its invalidity.
The remedy of information in the nature of quo warranto which is the successor to the ancient writ of quo warranto may be used to test the right of an incumbent to a public office or the right to exercise a franchise, but that is the limit of the scope of such a proceeding.
Clearly no right or title to office is involved in the instant case, but there is an attack upon the validity of a statute and the authority of the defendant Comptroller to enforce the Act. In substance the relief sought is the prevention of the performance of duty imposed upon him by Senate Bill No. 724, and that is the extent to which any ouster could be granted. The proper remedy would be by injunction to restrain the performance of the statutory duties on the ground of the invalidity of the statute.
Neither does the Act create or grant any privilege or franchise, or immunity, the usurpation of which could be relieved against by quo warranto. A franchise may be granted to an individual or a corporation, but one does not
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ordinarily think about any power given to or duty imposed, upon a public officer as being a franchise. In the great number of cases examined none has been found in which a. “franchise” was granted to an officer, but they refer to or show the grant as being either to a corporation, a person, a citizen or an individual.
While I cannot agree that quo warranto is a proper remedy and hence am of the opinion that the demurrer should be visited back upon the information, yet I consider it proper to concur in the conclusion that the defense is sufficient against demurrer, for a bad plea is a good defense to■ an unfounded writ.
My concurrence in the decision is with my understanding that it is the attitude of the Court to pas's over without deciding the question of the availability of quo warranto as a remedy in such a case, so that the action here is not
to
be construed as creating a precedent for extending the scope of that extraordinary remedy. By reason of the fact that this is one of several cases before the Court involving the constitutionality of the statute and with substantially the same issues in each case, it has been considered expedient yet consistent with orderly procedure to overlook the matter of form in technical procedure in this particular case and consider the substance on its merits in the entire group-of companion cases. Neither party is harmed, for the relators have obtained the judgment of the Court on the issues, they brought before it in their freely chosen form of remedy and the respondent cannot be injured because the decision is in his favor. No precedent has been established and there should be no danger that anyone may be misled in relying upon this holding as authority for and thereby mistaking the extent of the limits of the use of quo warranto.