Whats the difference between a writ of Quo Warranto and Habeas Corpus

  • 0

Whats the difference between a writ of Quo Warranto and Habeas Corpus


Quo Warranto

A writ of quo warranto is not a petition, but a notice of demand, issued by a demandant, to a respondant claiming some delegated power, and filed with a court of competent jurisdiction, to hold a hearing within 3 to 20 days, depending on the distance of the respondant to the court, to present proof of his authority to execute his claimed powers. If the court finds the proof insufficient, or if the court fails to hold the hearing, the respondant must cease to exercise the power. If the power is to hold an office, he must vacate the office.

These writs are called prerogative writs because they are supposed to be docketed ahead of all other cases except other prerogative writs. The demandant represents the sovereign, the people, and anyone may appear in that capacity, even without a personal stake in the decision.

Habeas Corpus

A writ of habeas corpus may be regarded as a subset of quo warranto, for cases where the claimed power is to hold a prisoner, but with the addition of a requirement to produce the prisoner in court, not just appear to present evidence of authority.

One may want to look these cases up

Version The Practice of Extraordinary Remedies, Chester James Antieau, 1987, Chapter on Quo Warranto.

Version A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto and Prohibition, James L. High, 1896, Section on Quo Warranto.

Version A Treatise on the Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari, and Quo Warranto, Horace G. Wood, 1896, Section on Quo Warranto.

Version Statute of Quo Warranto (1290) — Codified the writ of quo warranto as a pleading in English courts, and laid the basis for the writ of habeas corpus.

Useful quotes:

“Jurisdiction can be challenged at any time.” Basso v. Utah Power & Light Co., 495 F 2nd 906 at 910.

“It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefore.” U.S. v. Benson, 495 F.2d, at 481 (5th Cir., 1974).
“The law provides that once State and Federal Jurisdiction has been challenged, it must be proven.” Main v. Thiboutot, 100 S. Ct. 2502 (1980).

“Where there is absence of proof of jurisdiction, all administrative and judicial proceedings are a nullity, and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack.” Thompson v Tolmie, 2 Pet. 157, 7 L. Ed. 381; and Griffith v. Frazier, 8 Cr. 9, 3 L. Ed. 471.

“the burden of proving jurisdiction rests upon the party asserting it.” Bindell v. City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991).

Share This:

Leave a Reply