State ex rel. Hill v. Burnett

| Ala. | Jan 15, 1841

GOLDTHWAITE, J.

1. In the case of Ethridge v. Hill, 7, Porter, 47, the same objection, as is now urged, was taken to reviewing the decision of the Circuit Court on a writ of error; but we then considered that there is no reasonable distinction between refusing to grant a writ, by which the parties’ rights could be ascertained, and an erroneous judgment, by which they might be compromited. In that case, the writ of error was prosecuted on the refusal to allow a mandamus; but we think the same principle applies to a refusal to allow an information, in the nature of a quo warranto, when the relation is made at the instance of an individual, and when the object of the information is to ascertain the relator’s right to the usurped office or franchise.

2. We hold it to be immaterial in such a case as this, whether the relator proceeds by a rule to show cause; or whether he asks in the first instance, for leave to file the information. The former course would be without objection, but would necessarily involve more delay than is consistent with justice, when the inquiry affects an office, which is held for a very limited period.

The practice of proceeding in the first instance, by asking leave to file the information, seems however, to be equally correct, when notice of the motion is given, and sufficient time allowed to the defendant to prepare such affidavits as may be proper in opposition to the information. If, however, sufficient time had not been given, it at all times would be within the discretion of the Court to extend it. But it will hereafter be seen in what cases the defendant is authorised, to rebut the affidavits of the relator previous to forming an issue or issues of fact upon the information.

3. The main question which has been argued, is, with respect to the discretion, which the Circuit Court has to grant, or refuse, the leave to file an information of this description. It is certainly one of novelty, and likewise of much difficulty.

It is laid down in most cases, that the action of the Court is entirely discretionary and cannot be claimed as a matter of right. But we apprehend that this is the law only in those cases which still retain the character of State prosecutions. Such would an be information at the instance of one who laid no claim to the office supposed to be usurped; so likewise, when the franchise involved no question of private right, as in the cases of corporations, either public or private.

There is also another class of cases, in which the discretion of the Courts has been recognized; but these are where the contested office is held for a term, which must expire before the right can be adjudicated. People v. Sweeling. 2 John, 184. Commonwealth v. Athearn, 3 Mass. 285" court="Mass." date_filed="1807-10-15" href="https://app.midpage.ai/document/commonwealth-v-athearn-6403092?utm_source=webapp" opinion_id="6403092">3 Mass. 285.

4. The convenience of this mode of proceeding has rendered the old writs for ascertaining a right to an office, or franchise, entirely obsolete, and it may be questioned, whether they would now be effectual, even if admitted to be in force, inasmuch as in such suits, the judgment could only operate inpersonam. However this may be, the information in the nature of a quo warranto, when pursued by an individual claiming a right to an office, has long since lost its character as a State prosecution, and is now governed by the same rules as civil actions. Rex v. Francis. 2 Term. 484.

It is not our intention now to. review the cases on this subject; they are nearly all collected in Comyn. vol. 6. tit. quo warranto; 3, Bacon Ab. tit. information; and in 4 Cqwan, 100 note. We may remark however, that it seems clearly settled; even in those cases when the Courts exercised only, a discretionary power, whenever the right, or the fact on which the right depends is disputed; or when the right turns on a point of new or doubtful law; or when there is no other remedy, the information is usually granted.

On the whole, we are of opinion that, when the relation is made at the instance of one claiming a disputed office or franchise, and ajorima facia case is made by his affidavits, he is entitled to be placed in the proper condition to assert his rights in due course of law ; and to have all disputed facts determined by a jury.

In the present case, the relator asserts, that he is legally entitled to exercise the office of Sheriff, because he was elected and commissioned in 1838, and has never resigned, abandoned, or otherwise, vacated his right to the office. On the other hand, the defendant admits, that the relator once was the Sheriff; but he insists, and it may be conceded, that he, by the affidavits submitted, fully establishes, that the office was vacated by the absence of the relator from the County, for more than four months.

Now it is very evident, that the absence is a question of fact; and as it is asserted by the one, and denied by the other, it can only be properly determined by a jury. We, probably, should arrive at the same conclusion, as did the Circuit Court, on the affidavits, but neither the absence for four months, the abandonment^ of the office, or the non-residence of the relator can be determined by the Court, unless admitted by the pleadings. The relator swears that he has neither resigned, abandoned, or otherwise, vacated his office. Whether he has done so, is a proper issue to the country.

The judgment of the Circuit Court is reversed, and is here rendered, that the said relator have leave to file his information, appearing in the transcript, and the case is remanded for further proceedings on the information.