Lindsey v. Attorney-General

33 Miss. 508 | Miss. | 1857

Fisher, J.,

delivered the opinion of the court.

This was an information in the nature of a writ of quo warranto, exhibited in the name of the attorney-general, on the relation of David N. Barrows against Horatio H. Lindsey, in the Circuit Court of Hinds county, alleging, that the said Lindsey had usurped, and continued to hold, without authority of law, for a certain period, the office of clerk of the penitentiary of the State, and as incident thereto, the office of clerk of the Board of Inspectors of said institution.

The questions first presenting themselves for our consideration-, arise on the demurrer, which was filed to the information in the court below, and overruled by the court. The first point in order is, whether the information, in the absence of any statutory regulation, can be maintained in this State; or in other words, whether it is the appropriate remedy for the aggrieved party in a case like the present ? A writ of quo warranto is defined in the books, “ to be in the nature of a writ of right for the king, against him, who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right.” 2 Black. Com. 262; 7 Comyn’s Digest, 190. Owing to the great length of the process, and the delay occasioned under the practice which once prevailed, the ancient writ has fallen into disuse, and the more modern method of proceeding by information, in the name of the attorney-general, substituted in its stead. The information can be supported in all cases, where the ancient writ itself could be maintained, the object being, by the change of practice, merely to simplify and render more efficient the remedy, and not to extend it, to new or different subjects.

It is however argued on behalf of the appellant, that the writ at common law was only allowed at the option of the king; and was not returnable into court, but before such persons as the king might specially appoint for the purpose of trying the same. Hence it is argued, that as the remedy at common law was one which depended mainly upon the pleasure of the king, and was not a judicial proceeding, it cannot be such in this country. Blackstone says, that the writ was originally returnable before the king’s justices at Westminster, but afterwards only before the justices in eyre, by virtue of the statutes of quo warranto, 6 Edw. 1, c. 1; 18 Edw. 1, st. 2. This authority appears to be sufficient to overturn the position of counsel, that the writ was not originally returnable into court. But admitting for the sake of the argument, that the writ was grantable only at the pleasure of the king, according to the ancient practice, and that it was returnable before special commissioners, as argued by counsel, we still disagree with counsel, that the remedy, when pursued in this State, is not to be regarded as strictly judicial in its nature. The king was interested, to a greater or less extent, in most, if not all the subjects touching which the writ was anciently employed as a remedy, and might therefore waive his own rights and privileges, growing out of either a forfeiture of a corporate franchise, or usurpation of an office. Hence, it may have been proper that his pleasure should have been ascertained before the writ was allowed.

But in resorting to the common law, for the purpose of ascertaining either individual rights, or the remedies provided for their protection and enjoyment, we must always keep in view the difference in the structure in the two governments. The common law, so far as it is recognized as a rule of action in this country, is founded in reason and good sense. We look to it only to ascertain the nature and extent of rights, whether relating to persons or to property, and the remedies to protect these rights, or to redress such wrongs as may be inflicted upon them. But having ascertained the right and the remedy as thus declared and defined, we turn to the constitution and laws of our own government, for the purpose of learning the tribunal before which the particular right must be vindicated, or the injury redressed. The powers of the State government are divided into three distinct departments, and each of them confided to a separate body of magistracy. The king, under the peculiar structure of the government of England, may have been intrusted with, or assumed to himself a larger share of the judicial power of the kingdom, than has been allowed to the executive department of this State. His judicial power, whatever it may have been in the earlier days of the common law, would be treated here, as it has long been treated in England, as completely vested in the courts of the State, who will exercise it, not arbitrarily, or according to a kingly prerogative at pleasure, but as regulated by law for the advancement of justice, and the preservation and protection of individual rights. It is unnecessary to state, that the controversy now before the court is entirely judicial in its nature; and that the Circuit Court, whose jurisdiction extends to all matters not specially confided to some other court, is the tribunal before which the remedy must be prosecuted.

But little more need now be said to dispose of the question. It is a familiar maxim of the law, that wherever there is a legal right, there is also a legal remedy to enforce it. The office of clerk of the penitentiary was created by statute. The law, in consideration of the services to be performed, has given to the incumbent certain fixed compensation. The person legally elected and qualified, has the right to hold the office, and to the enjoyment of its honors and emoluments, to the exclusion of every other person. It is unnecessary to say, that this is a legal right, to enforce which the law has provided a legal remedy. Whenever the nature of the right will admit of it, the law will give the injured party a perfect and complete remedy, by which we understand, that it will place the party in the possession and enjoyment of the thing or right to which he is adjudged to be entitled. The right asserted here, is of this character. It is entirely within the power of the court, by its judgment, to oust the party who has usurped, and continued illegally to hold the office, and, at the same time, to award its possession and future enjoyment to the relator. The writ of quo warranto, as we have seen, was the only means by which this could be done at common law; and the information having been substituted as the more simple method, is now the usual and appropriate remedy. *

The point next in order for consideration is, that there is no authority, as argued by counsel, for filing the information in the name of the attorney-general; as it is said he is not the representative of the State in the Circuit Courts. Perhaps if we were to confine our examination entirely to his powers and duties, as defined by the statutes of the State, we would agree with counsel. It is sufficient, on the present occasion, to say, that there is nothing in the law or in the nature of his duties, prohibiting the use of his name; and it has been the long and unvarying practice, not only in England, but in most, if not all the States of the Union, for such informations to be exhibited by the attorney-general. It is a matter of but little consequence whose name may be used, so that a meritorious case is presented to the court, and substantial justice can be administered between the real parties to the controversy. This can be accomplished as well by proceeding, in the name of the attorney-general, as of the State, or of the party directly interested; the object being to determine who has the legal right to hold the office. The common law itself, is but the result of long practice, which may, from time to time, undergo such alterations or improvements as experience may suggest, for the purpose of rendering the administration of justice more certain or less expensive. Admitting, for the sake of the argument, that the attorney-general is not the representative of the State in the Circuit Courts, it does not necessarily follow that his name may not be used when required by a citizen, who has a clear right to an office, but can only pursue his remedy to assert his right in the name of this officer of the State. The questions are: has the relator a right to the office ? has this right been withheld or denied him by any other person ? is there a remedy for the recovery of the right ? if so, in whose name must it be pursued, and in what manner must it be prosecuted ? As already remarked, the common law permitted the injured party to seek redress of the wrong in the name of the attorney-general. The remedy in this instance, as we have seen, is entirely regulated by the common law; and hence, according to the well-recognized rules of construction of statutes, unless there is something in them taking away this right of the citizen, or making the duties of the attorney-general incompatible with the use made of hi^ name in the present proceeding, we shall feel ourselves bound by the practice on the subject. The statutes prescribing his duties are all affirmative, and merely designate what duties he shall perform as the officer of the State. He is not prohibited from performing others, in which a citizen alone may be interested; or, if not interested, then the State is, provided the fact can be established as alleged, that the defendant below had, without authority of law, usurped the office described in the information. We therefore overrule this objection.

It is next urged, as an objection, that the writ was issued in term time, and made returnable to the same term of the court. What we have already said, will aid very much in disposing of this objection. There is nothing in the statute law regulating the process in this class of cases. The ancient writ itself, having been found by experience to be inconvenient in practice, has fallen into disuse, and the more simple method of filing the information under leave of the court, and summoning the party by ordinary subpoena, substituted in lieu of the ancient practice. It is true that a rule nisi, stating the objections to the defendant’s holding the office, usually accompanies the subpoena; but this is not necessary where, as in this case, the process itself stated what was alleged in the information. The writ as once used, was in the nature of a criminal proceeding, the information is in form such now, but is used only for the purpose of trying a civil right.

If then we regard the process in the nature of a subpoena or of criminal process, either can issue in term time, and be made returnable instanter. The very nature of the right asserted requires a speedy remedy. It is not only the right of the party having the legal title to the office, to be placed at once in the possession and enjoyment of it; but it is also the policy of the law, that he alone who has been intrusted with the public confidence, in the mode pointed out by law, should perform the duties of the office. The remedy, to be valuable, should be speedy. It was so under the practice as regulated by the rules of the common law; and having to look to that law for the rules to guide us on the present occasion, we find nothing in the policy of the law, or the theory of our government, requiring us to make the remedy less efficient than it is under the English practice. We therefore find no error in the action of the court below, so far as this objection is concerned.

Having thus disposed of the main points, that the remedy by information in the nature of a writ of quo warranto, is the proper one, that the proceeding may be commenced and carried on in the name of the attorney-general, and that an information may be heard at the same term of the court to which it is filed, we deem it unnecessary to notice the other grounds taken on the motion to quash the information, or in the demurrer.

We therefore proceed to the consideration of the two remaining points arising on the merits, to wit: whether the relator, Barrows, has sustained his title to the office by sufficient legal evidence; and second, whether the fact of his being pension agent for this State, both at the date of his election and at the time he demanded possession of the office from the appellant, disqualified him from holding an office under the State government, under that provision of the Constitution which declares that no member of Congress, or other person holding an office of profit or trust under the United States, shall hold any office of profit or trust under this State.

With respect to the first point, the relator exhibited, to support his title to the office, a commission by the governor, and signed by the secretary of state, and otherwise properly authenticated, on the 16th day of February, 1854, by which it appears that Barrows, the relator, had been elected to the office in controversy. But it is objected, that the commission omits to show at what time he was elected, and that it is therefore void for this uncertainty. That is certain which may be rendered certain. Hence our inquiry must be, whether the commission can be rendered sufficiently certain to establish the relator’s claim to the office. It is contended that he may, for anything that appears to the contrary, have been elected before Lindsey’s appointment. Admitting this construction to be true, it would only serve to show that there was no vacancy in the office, and that Lindsey’s appointment was therefore void. But there is another and safer rule by which the question maybe solved. The commission was issued by the present governor. The court must take judicial notice of the changes made in the executive department. The governor was inaugurated on the 10th of January, 1854; the commission was issued after this date. There was no meeting of the legislature which could elect, after Lindsey’s appointment, until the first Monday in January, 1854. These several facts, then, — Lindsey having been appointed by the governor in the recess of the legislature to fill a vacancy, the legislature meeting after his appointment, it being part of its duty to elect a clerk of the penitentiary, and the governor who succeeded Governor Foote having, after the meeting of the legislature and his own inauguration, commissioned the relator as such clerk, in virtue of a legislative election, — must be taken as sufficient evidence that the election took place by the legislature at its late session, and therefore sufficient.

[This cause was decided at the April Term, A. D. 1854.]

In regard to the other question, the fact that the relator was pension agent of this State, both at the date of his election and of his application for possession of the office, it will be sufficient for us to state our conclusion. We have examined the several Acts of Congress on the subject, and are of opinion, that he is not, in a legal sense, an officer of the government of the United States. He is not required to take an oath of office, or to perform any other services than such as may be confided to him by the war department, of which he is merely for this special business an agent.

Upon a careful review of the whole case, we are of opinion that the judgment of the court below ought to be affirmed.

Judgment affirmed.

A petition for a reargument was filed, but overruled.