| Ark. | Mar 11, 1905
(after stating the facts.) 1. It is provided in the act creating the chancery districts that when the chancellor is absent from the county.the circuit judge may issue writs of injunction or restraining orders, “after the action has been commenced, but not before.” Kirby’s Dig. § 1294. This action began with an order for a restraining order to be inserted in the summons before the suit was filed. The complaint or “petition for restraining order,” as it is called, asked'no other than injunc-tive relief, and should have been brought in the chancery court. The judgment, while using different terms, is in effect a decree perpetually enjoining the mayor and recorder from enforcing the ordinance in question, and enjoining any one from interfering with the marshal’s collection of the liquor licenses. This view of it renders the whole proceeding from summons to decree void; but it is sought to sustain it upon other grounds.
2. The court found from the testimony that this was “a proceeding in the nature of a quo warranto, and may proceed and be determined, as such.” The writ of quo warranto and information in the nature of quo warranto had a contemporaneous origin, but the procedure and remedy in each was originally different. The former a civil, the latter a criminal procedure. State v. Ashley, 1 Ark. 279" date_filed="1839-01-15" court="Ark." case_name="State v. Ashley">1 Ark. 279. It is the practice in this court to disregard the distinctions between the writ of quo warranto and the information in the nature of quo warranto, when the original jurisdiction of this court is invoked. State v. Leatherman, 38 Ark. 81" date_filed="1881-11-15" court="Ark." case_name="State v. Leatherman">38 Ark. 81. In testing this judgment it will be looked to to see if it can be sustained as either quo warranto or information in the nature of it. The proceeding is thus defined: “Quo warranto, or information in the nature of quo warranto, is the remedy or proceeding whereby the State inquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyments if the claim be not well founded, or to have the same declared forfeited, and recover it, if, having once been rightfully possessed and enjoyed, it has become forfeited for misuser or nonuser.” 2 Spelling on Injrtnctions and Other Extraordinary Rem. § 1765. Either form of this remedy must be prosecuted by the State or some public officer representing the sovereignty. Id. § § 1766, 1771, 1773. In this State the officer authorized by law to act for the State in the assertion of this prerogative of the sovereignty of the State is the Attorney General. Kirby’s Dig. § 3464. Thus it is apparent that the metamorphosis of the injunction suit into the quo warranto could not be produced by the testimony in this case, and would have had to have been produced by the State intervening through her Attorney General.
3. In most States there are statutory actions authorizing a direct litigation between contesting claimants to an office or franchise. 2 Spelling, Inj. and Other Ex. Rem. § 1776. In this State it is provided by Kirby’s Dig. § 7983, that either the State or the party entitled may bring an action at law to prevent an usurper from exercising an office or franchise. It is made the duty of prosecuting attorneys to institute such actions in certain cases. Kirby’s Dig. § 7984. This statute may be invoked by a town marshal or other municipal officer seeking to recover his office usurped by another. Payne v. Rittman, 66 Ark. 201" date_filed="1899-02-18" court="Ark." case_name="Payne v. Rittman">66 Ark. 201. This suit cannot be treated as falling within the usurpation of office statute. This is no contest over the office of town marshal; it is a mere suit by .the town marshal to force into his own hands the collection of the liquor licenses, so that he may receive commissions for their collections. If he is right in his contention that he is entitled to such fees, his remedy at law is plain, adequate, full and complete, and he needs no resort to injunction, quo warranto or any .other extraordinary proceeding.
The court was hot warranted in treating this proceeding as any other than what it purported to be, an injunction suit, and the circuit court had no jurisdiction to entertain it, and the judgment is void. The transcript containing the pleadings, orders and judgment is already filed, and the parties here have submitted the case, thereby waiving the issuance and return of the writ, and the order is that the judgment in question be quashed, annulled and set aside.