This is an information in the nature of a quo warranto, filеd by the Attorney General, on behalf of the people, on relation оf Smith Falkenbury, charging Marcus H. Miles, the defendant, with usurping the office of County Clerk of the County of. St. Clair, and requiring him to show his right thereto. In addition to the usxral averments contained in a pleading of this nature at the common law, the information alleges “ that said Smith Falkenbury, by virtue $id warrant of due and regular election, is in law and in right entitled tо have, hold, and exercise” ■said office. The defendant demurs, on the ground that the title of Falkenbury is not specifically set forth. The averment referred tо is intended to be in conformity with Sec. 3, Ch. 136 of R. 8., 1846, which provides that in addition to the othеr allegations in an information for usurping an office, the Attorney General mаy “set forth therein the name of the person rightfully entitled to such office, with an аverment of his right thereto.” The object of permitting this unixsual averment appеars from section 4 of the same chapter, which provides that the Coxxrt “shаll render judgment upon the right of the defendant, and also upon the right of the party so entitled, or only upon the right of the defendant, as justice shall require.”
We dо not think these and other less important provisions on the same subject were, designed materially to change the nature of the proceeding by information in cases like the present. It is still a proceeding on behalf of the people against the defendant, to try his right to an office which he is alleged to have usurped. The sole issue must be as to his right. He cannot controvert the person alleged to bt entitled, nor can the Court adjudicate upon it unlеss it is necessarily involved in the determination of the issue between the people and the defendant. In a State like ours, where public officers arе nearly all elective, and where pixblic opinion must usually be an effeсtive check upon all xisurpations of office without some pretenсes of right, founded upon the suffrages of the people, it is obvious that the question most frequently to be tried on informations like the present, will be whether the defendant received a majority of the votes cast at an election. If he did not, some one else must have
It is sajd that under section seven of the chapter referred to, the latter judgment may he the foundation of a prоceeding by the person in whose favor it is rendered, to recover damаges against the defendant, arising from his intrusion, and that therefore the facts upоn which it is based ought to be specifically set forth in the information, and the defеndant should have an opportunity to controvert them. The answer to that is that they were set forth, and were or might have been controverted by the defendant in the issue between him and the people.
Demurrer overruled.