- “. . . We conclude based on the record before us that the petition does not satisfy the standards we
have established for the exercise of our original jurisdiction over a petition for a writ of quo warranto.
See Rice v. Connolly, 488 N.W.2d 241, 244 (Minn. 1992) (“While this court retains its original jurisdiction
pursuant to Minn. Stat. § 480.04 (1990), we today signal our future intention to exercise that discretion
in only the most exigent of circumstances.”). Accordingly, we dismiss the petition without prejudice. . . .
IT IS FURTHER ORDERED that the motion of Aging Services of Minnesota and Care Providers, Inc., for leave
to file a brief as amici curiae be, and the same is, denied as moot.”
- Quo WARRANTO Is NOT AN APPROPRIATE REMEDY IN THIS CASE.
Quo warranto is an equitable remedy which is rarely invoked by the courts. Rice
v. Connolly, 488 N.W.2d 241, 244 (Minn. 1992) (recognizing the Court has exercised its
discretion to issue the writ of quo warranto "infrequently and with considerable
caution"). The remedy does not apply to government conduct that is pending or has been
completed. State ex rel. Danielson v. Village of Mound, 234 Minn. 531, 544, 48 N.W.2d
855, 864 (1951) ("Until an actual usurpation has occurred, the remedy of quo warranto
This document is made available electronically by the Minnesota Legislative Reference Library
as part of an ongoing digital archiving project. http://www.leg.state.mn.us/lrl/lrl.asp
has no application"); State ex rel. Lommen v. Gravlin, 209 Minn. 136, 137, 295 N.W.
654, 655 (1941).
- We are concerned with these issues:
(1) Does a private citizen, with the consent of the attorney general, have the
right to use the writ of quo warranto to test the legality of annexation proceedings?
(2) Is a private corporation, as a signatory of a petition for annexation, a proper party
respondent in quo warranto proceedings brought to challenge the validity of an annexation?
(3) Does a writ of quo warranto lie prior to the time a village has acted upon a petition for annexation?
(4) Where the territory to be annexed and the annexing village do not abut upon each other in any
other manner than that they are located at opposite ends of an actually used and occupied railroad
right of way — which is 100 feet wide and about five-eighths of a mile long and which is included as
a part of the annexed territory — is such territory, pursuant to § 412.041, subd. 1, so conditioned as
properly to be subjected to village government?
1-2-3. There has been considerable confusion as to how and when a private citizen will be permitted to
institute quo warranto proceedings in this court. Since the American law adopted the common-law writs
as modified by pre-Revolutionary statutes, we must fully understand the effect of these statutes to solve
current problems involving the writ of quo warranto.2 The common-law quo warranto "served as one of
the main weapons of the Crown to prevent a dispersal of its powers of government through the claim of
[ 234 Minn. 537 ]
franchises by barons or boroughs"3 and could not issue, or the information be filed, at the relation of
a private individual.4 Being cumbersome and at times unsatisfactory to the Crown, this original writ fell
into disuse at an early date5 and was superseded by a remedy called "information in the nature of a
Quo Warranto," which served the same purpose as the original writ6 but provided means for a speedy
disposition of the controversy.7 In 1711, the "information in the nature of a Quo Warranto" was extended
by statute8 so that private persons, with the leave of the court, were allowed to file an information for
the purpose of prosecuting the same against persons usurping, intruding into, or unlawfully holding
and executing any office or franchise in corporations and boroughs.9 Thus, the common law as we
adopted it provided for the information in the nature of quo warranto as a civil remedy which was allowed
to be filed by (1) the attorney general ex officio on behalf of the Crown, and (2) by the master of the Crown
Office at the instance of a private individual10; but in certain cases an information could only be filed by
the attorney general ex officio.11
[ 234 Minn. 538 ]
Today, the supreme court has jurisdiction to issue writs of quo warranto under § 480.04.12 Quo warranto as
authorized by this statute is not in essence the old common-law writ, even though the statute allows the
issuance of writs of quo warranto, but rather the information in the nature of quo warranto as changed
by 9 Anne, c. 20 (12 Stat. at Large, p. 190).13 To understand this statutory proceeding, it is necessary to
analyze our existing case law in connection with the historical development of the information in the nature
of quo warranto.
The procedure for obtaining a statutory writ of quo warranto is not identical in all respects with the
common-law procedure for filing an information in the nature of a quo warranto. In an action under
§ 480.04 for a writ of quo warranto, as under the common law, no summons or complaint is necessary.
Where the application for the writ is made by the attorney general ex officio, the public interest requires
that the writ issue.14 Where, however, the issuance of the writ is sought by a private individual with the
consent of the attorney general — only in a few very restricted circumstances is the attorney general's
consent not necessary15 — the private individual must petition the court for leave to file an information
for a writ of quo warranto.16 The granting or withholding of leave to file an information for a writ of quo
warranto at the instance of a private individual, with or without the consent of the attorney
[ 234 Minn. 539 ]
general, rests in the sound discretion of the court.17 When, however, the supreme court permits an information
for a writ of quo warranto to be filed and has issued the writ, the court is deemed to have exercised its discretionary
power favorably for the relator,18 and it is immaterial that relator failed to petition the court for leave to file the
information upon which the writ was issued.19 After the writ is issued, defendant may plead to such writ within
the time specified therein, and the proceeding continues in the same manner as in an ordinary civil action.20
The judgment for relator may be a general judgment of ouster, an ouster of the right to do the particular act
complained of, a suspensive judgment of ouster with a fine accompanying it, or a simple fine.21
4. Does a private citizen, however, with the consent of the attorney general, have the right to use the writ of
quo warranto to test the validity of annexation proceedings? Where the party aggrieved may obtain full and
adequate relief in either a common-law or equitable action, a writ of quo warranto is not available.22 Some
authorities hold that the proper remedy for persons specifically interested in or affected by annexation
proceedings is an injunction.23 Speaking in regard to these authorities, our court in State ex rel.
[ 234 Minn. 540 ]
FEDERAL Rule 81 APPLICABILITY OF THE RULES IN GENERAL; REMOVED ACTIONS.pdf
(a) APPLICABILITY TO PARTICULAR PROCEEDINGS.
(1) Prize Proceedings. These rules do not apply to prize proceedings in admiralty
governed by 10 U.S.C. §§7651–7681.
(2) Bankruptcy. These rules apply to bankruptcy proceedings to the extent provided by
the Federal Rules of Bankruptcy Procedure.
- (3) Citizenship. These rules apply to proceedings for admission to citizenship to the
extent that the practice in those proceedings is not specified in federal statutes and has
previously conformed to the practice in civil actions. The provisions of 8 U.S.C. §1451
for service by publication and for answer apply in proceedings to cancel citizenship
- (4) Special Writs. These rules apply to proceedings for habeas corpus and for quo
warranto to the extent that the practice in those proceedings:
(A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or
the Rules Governing Section 2255 Cases; and
(B) has previously conformed to the practice in civil actions.
- (5) Proceedings Involving a Subpoena. These rules apply to proceedings to compel
testimony or the production of documents through a subpoena issued by a United
States officer or agency under a federal statute, except as otherwise provided by statute,
by local rule, or by court order in the proceedings.
- (6) Other Proceedings. These rules, to the extent applicable, govern proceedings
under the following laws, except as these laws provide other procedures:
(A) 7 U.S.C. §§292, 499g(c), for reviewing an order of the Secretary of Agriculture;
(B) 9 U.S.C., relating to arbitration;
(C) 15 U.S.C. §522, for reviewing an order of the Secretary of the Interior;
(D) 15 U.S.C. §715d(c), for reviewing an order denying a certificate of clearance;
(E) 29 U.S.C. §§159, 160, for enforcing an order of the National Labor Relations
(F) 33 U.S.C. §§918, 921, for enforcing or reviewing a compensation order under
the Longshore and Harbor Workers’ Compensation Act; and
(G) 45 U.S.C. §159, for reviewing an arbitration award in a railway-labor dispute.
- (b) SCIRE FACIAS AND MANDAMUS.
- The writs of scire facias and mandamus are abolished.
Relief previously available through them may be
obtained by appropriate action or motion under
(c) REMOVED ACTIONS.
These rules apply to a civil action
after it is removed from a state
(2) Further Pleading. After removal, repleading is unnecessary unless the court orders
it. A defendant who did not answer before removal must answer or present other
defenses or objections under these rules within the longest of these periods:
(A) 21 days after receiving—through service or otherwise—a copy of the initial
pleading stating the claim for relief;
(B) 21 days after being served with the summons for an initial pleading on file at the
time of service; or
(C) 7 days after the notice of removal is filed.
- (3) Demand for a Jury Trial.
(A) As Affected by State Law.
A party who, before removal, expressly demanded a
jury trial in accordance with state law need not renew
the demand after removal. If the state law did not
require an express demand for a jury trial, a party need
not make one after removal unless the court orders the
parties to do so within a specified time.
The court must so order at a party's request and may so
order on its own. A party who fails to make a demand
when so ordered waives a jury trial.
(B) Under Rule 38.
If all necessary pleadings have been served at the time of
removal, a party entitled to a jury trial under Rule 38 must
be given one if the party serves a demand within 14 days after:
(i) it files a notice of removal; or
(ii) it is served with a notice of removal filed by another party.
- (d) LAW APPLICABLE.
- (1) “State Law” Defined.
When these rules refer to state law, the term “law”
includes the state's statutes and the state's judicial
- (2) “State” Defined.
The term “state” includes, where appropriate,
the District of Columbia and any United States
commonwealth or territory.
- (3) “Federal Statute” Defined in the District of Columbia.
In the United States District Court for the
District of Columbia, the term “federal statute”
includes any Act of Congress that applies locally
to the District.
COMMITTEE NOTES ON RULES—
The language of Rule 81 has been amended as part of
the general restyling of the Civil Rules to make them more
easily understood and to make style and terminology
consistent throughout the rules. These changes are
intended to be stylistic only.
Rule 81(c) has been revised to reflect the amendment of
28 U.S.C. §1446(a) that changed the procedure for removal
from a petition for removal to a notice of removal.
Former Rule 81(e), drafted before the decision in
Erie R.R. v. Tompkins, 304 U.S. 64 (1938), defined state
law to include “the statutes of that state and the state judicial
decisions construing them.”
The Erie decision reinterpreted the Rules of Decision Act, now
28 U.S.C. §1652, recognizing that the “laws” of the states include
the common law established by judicial decisions.
Long-established practice reflects this understanding,
looking to state common law as well as statutes and
court rules when a Civil Rule directs use of state law.
Amended Rule 81(d)(1) adheres to this practice, including all
state judicial decisions, not only those that construe state
Former Rule 81(f) is deleted. The office of district director of
internal revenue was abolished by restructuring under the
Internal Revenue Service Restructuring and Reform
Act of 1998, Pub. L. 105–206, July 22, 1998, 26 U.S.C. §1 Note.
NOTES OF ADVISORY COMMITTEE ON RULES—1937
Note to Subdivision (a). Paragraph (1): Compare the enabling act, act of June 19, 1934,
U.S.C., Title 28, §§723b [see 2072] (Rules in actions at law; Supreme Court authorized to
make) and 723c [see 2072] (Union of equity and action at law rules; power of Supreme
Court). For the application of these rules in bankruptcy and copyright proceedings, see
Orders xxxvi and xxxvii in Bankruptcy and Rule 1 of Rules of Practice and Procedure
under §25 of the copyright act, act of March 4, 1909, U.S.C., Title 17, §25 [see 412, 501 to
504] (Infringement and rules of procedure).
For examples of statutes which are preserved by paragraph (2) see: U.S.C., Title 8, ch. 9
[former] (Naturalization); Title 28, ch. 14 [now 153] (Habeas corpus); Title 28, §§377a–
377c (Quo warranto); and such forfeiture statutes as U.S.C., Title 7, §116 (Misbranded
seeds, confiscation), and Title 21, §14 [see 334(b)] (Pure Food and Drug Act—
condemnation of adulterated or misbranded food; procedure). See also 443 Cans of
Frozen Eggs Product v. U.S., 226 U.S. 172, 33 S.Ct. 50 (1912).
For examples of statutes which under paragraph (7) will continue to govern procedure
in condemnation cases, see U.S.C., [former] Title 40, §258 (Condemnation of realty for
sites for public building, etc., procedure); U.S.C., Title 16, §831x (Condemnation by
Tennessee Valley Authority); U.S.C., [former] Title 40, §120 (Acquisition of lands for public
use in District of Columbia); [former] Title 40, ch. 7 (Acquisition of lands in District of
Columbia for use of United States; condemnation).
Note to Subdivision (b). Some statutes which will be affected by this subdivision are:
- U.S.C., Title 7: AGRICULTURE
- §222 (Federal Trade Commission powers adopted for enforcement of Stockyards Act) (By reference to Title 15, §49)
- U.S.C., Title 15: COMMERCE AND TRADE
- §49 (Enforcement of Federal Trade Commission orders and antitrust laws)
- §77t(c) (Enforcement of Securities and Exchange Commission orders and Securities Act of 1933)
- §78u(f) (Same; Securities Exchange Act of 1934)
- §79r(g) (Same; Public Utility Holding Company Act of 1935)
- U.S.C., Title 16: CONSERVATION
- §820 (Proceedings in equity for revocation or to prevent violations of license of Federal Power Commission licensee)
- §825m(b) (Mandamus to compel compliance with Federal Water Power Act, etc.)
- U.S.C., Title 19: CUSTOMS DUTIES
- §1333(c) (Mandamus to compel compliance with orders of Tariff Commission, etc.)
- U.S.C., Title 28: JUDICIARY & JUDICIAL PROCEDURE
- §572 [now 1923] (Fees, attorneys, solicitors and proctors)
- §377 [now 1651] (Power to issue writs)
- §778 [former] (Death of parties; substitution of executor or administrator). Compare Rule 25(a) (Substitution of parties; death), and the note thereto.
- U.S.C., Title 33: NAVIGATION & NAVIGABLE WATERS
- §495 (Removal of bridges over navigable waters)
- U.S.C., Title 45: RAILROADS
- §88 (Mandamus against Union Pacific Railroad Company)
- §153(p) (Mandamus to enforce orders of Adjustment Board under Railway Labor Act)
- §185 (Same; National Air Transport Adjustment Board) (By reference to §153)
- U.S.C., Title 47: TELECOMMUNICATIONS
- §11 (Powers of Federal Communications Commission)
- §401(a) (Enforcement of Federal Communications Act and orders of Commission)
- §406 (Same; compelling furnishing of facilities; mandamus)
- U.S.C., Title 49: TRANSPORTATION
- §19a(l) [see 11703(a), 14703, 15903(a)] (Mandamus to compel compliance with Interstate Commerce Act)
- §20(9) [see 11703(a), 14703, 15903(a)] (Jurisdiction to compel compliance with interstate commerce laws by mandamus)
- For comparable provisions in state practice see Ill. Rev. Stat. (1937), ch. 110, §179; Calif. Code Civ. Proc. (Deering, 1937) §802.
- Note to Subdivision (c). Such statutes as the following dealing with the removal of actions are substantially continued and made subject to these rules:
- U.S.C., Title 28: JUDICIARY & JUDICIAL PROCEDURE
- §71 [now 1441, 1445, 1447] (Removal of suits from state courts)
- §72 [now 1446, 1447] (Same; procedure)
- U.S.C., Title 28, §72 [now 1446, 1447], supra, however, is modified by shortening the time for pleading in removed actions.
- §73 [former] (Same; suits under grants of land from different states)
- §74 [now 1443, 1446, 1447] (Same; causes against persons denied civil rights)
- §75 [now 1446] (Same; petitioner in actual custody of state court)
- §76 [now 1442, 1446, 1447] (Same; suits and prosecutions against revenue officers)
- §77 [now 1442] (Same; suits by aliens)
- §78 [now 1449] (Same; copies of records refused by clerk of state court)
- §79 [now 1450] (Same; previous attachment bonds or orders)
- §80 [now 1359, 1447, 1919] (Same; dismissal or remand)
- §81 [now 1447] (Same; proceedings in suits removed)
- §82 [former] (Same; record; filing and return)
- §83 [now 1447, 1448] (Service of process after removal)
- Note to Subdivision (e). The last sentence of this subdivision modifies U.S.C., Title 28, §725 [now 1652] (Laws of States as rules of decision) in so far as that statute has been construed to govern matters of procedure and to exclude state judicial decisions relative thereto.
- 28 USC §1652
The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.
- 3/24/13 Rule 81. Applicability of the Rules in General; Removed Actions | Federal Rules of Civil Procedure | LII / Legal Information Institute
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- MN RCP Rule 81.Applicability; in General.pdf
81.01Statutory and Other Procedures
These rules do not govern pleadings, practice and procedure in the statutory
and other proceedings listed in Appendix A insofar as they are inconsistent or
in conflict with the rules.
- (Amended effective January 1, 1997.)
Advisory Committee Comment - 1996 Amendment
Advisory Committee Comments
- Although Rule 81.01(a) is not amended, the committee recommends that the list of special
proceedings exempted from the rules by this rule be updated.
An updated Appendix A is included in these proposed amendments.
- APPENDIX A
- Appendix A - Special Proceedings Under Rule 81.01
- I AM; SPECIAL
(Amended effective January 1, 1997.)
Advisory Committee Comment - 1996 Amendment
Advisory Committee Comments
- Rule 81.01(b) should be abrogated to reflect the decision of the Minnesota Supreme Court in
Rice v. Connolly, 488 N.W.2d 241, 244 (Minn. 1992), in which the court held:
"[W]e have determined that quo warranto jurisdiction as it once existed in the district court
must be reinstated and that petitions for the writ of quo warranto and information in the
nature of quo warranto shall be filed in the first instance in the district court."
- Rice v. Connolly, 488 N.W.2d 241, 244 (Minn. 1992)
- The court recognized its retention of original jurisdiction under Minnesota Statutes, section
480.04 (1990), and also indicated its "future intention to exercise that discretion in only the
most exigent of circumstances.
- 480.04 WRITS; PROCESS.
The court shall have power to issue to all courts of inferior jurisdiction and to all corporations and individuals, writs of error, certiorari, mandamus,
prohibition, quo warranto and all other writs and processes, whether especially provided for by statute or not, that are necessary to the execution
of the laws and the furtherance of justice.
It shall be always open for the issuance and return of such writs and processes and for the hearing and determination of all matters involved
therein and for the entry in its minutes of such orders as may from time to time be necessary to carry out the power and authority conferred upon it by
law, subject to such rules as it may prescribe. Any justice of the court, either in vacation or in term, may order the writ or process to issue and prescribe as
to its service and return.
History: (132) RL s 72; 1917 c 408 s 1; 1985 c 248 s 70
- Writ of certiorari
- Writ of habeas corpus
- Writ of ne exeat
- Writ of mandamus
- U.S.C., Title 28:
§377 [now 1651] (Power to issue writs)
- TITLE V. EXTRAORDINARY WRITS
- We comment further that the reinstatement of quo warranto jurisdiction in the district court is
intended to exist side by side with the appropriate alternative forms of remedy heretofore
available...." 488 N.W.2d at 244.
- ADMINISTRATIVE PROCEDURES ACT
- LAW OF AGENCY
- The continued existence of a rule purporting to recognize a procedural remedy now expressly
held to exist can only prove misleading or confusing in future litigation. Abrogation of the rule
is appropriate to obviate any lack of clarity.
- WHAT THE HELL IS THAT SUPPOSED TO MEAN, REALLY?
Subject to provision (a) of this rule, the statutes listed in Appendix B and all
other statutes inconsistent or in conflict with these rules are superseded insofar
as they apply to pleading, practice, and procedure in the district court.
- APPENDIX B1
- Appendix B(1) - List of Rules Superseding Statutes
- APPENDIX B1
- Appendix B(2) - List of Statutes Superseded by Rules
81.02Appeals to District Courts
RULES OF APPELLATE PROCEDURE BOSS
- MIGHT AS WELL STUDY THEM FIRST;
LOWER COURTS ARE ALL GOING TO RULE AGAINST YOU BECAUSE IT'S GOOD MONEY FOR THE STATE AND COUNTY AND BAR TO RUN YOU THROUGH AND DRAIN YOUR LIFE SAVINGS... AND YOUR CESTE QUE TRUST
- These rules do not supersede the provisions of statutes relating to
appeals to the district courts.
81.03Rules Incorporated into Statutes
Where any statute heretofore or hereafter enacted, whether or not listed in Appendix A,
provides that any act in a civil proceeding shall be done in the manner provided by law,
such act shall be done in accordance with these rules.
- IN THE MANNER PROVIDED BY LAW
MEANS IN ACCORDANCE WITH THE RULES OF CIVIL PROCEDURE
- 645.19 CONSTRUCTION OF PROVISOS AND EXCEPTIONS.
- Provisos shall be construed to limit rather than to extend the operation of the clauses to
which they refer. Exceptions expressed in a law shall be construed to exclude all others.
- 645.20 CONSTRUCTION OF SEVERABLE PROVISIONS.
- Unless there is a provision in the law that the provisions shall not be severable, the
provisions of all laws shall be severable. If any provision of a law is found to be unconstitutional
and void, the remaining provisions of the law shall remain valid, unless the court finds the valid
provisions of the law are so essentially and inseparably connected with, and so dependent
upon, the void provisions that the court cannot presume the legislature would have enacted the
remaining valid provisions without the void one; or unless the court finds the remaining valid
provisions, standing alone, are incomplete and are incapable of being executed in accordance
with the legislative intent.
- 645.22 UNIFORM LAWS.
- 645.22 UNIFORM LAWS.
- Laws uniform with those of other states shall be interpreted and construed to effect their
general purpose to make uniform the laws of those states which enact them.