3 Ark. 585 | Ark. | 1841
delivered the opinion of the Court:
The pleadings, although they are in some respects rather uncertain and informal, are believed to be substantially good, if the facts disclosed are such as in law authorize the writ, or enable the State to require the defendant to show his warrantor authority to preside upon the trial of and adjudicate the cases therein mentioned. The first question, therefore, to be determined, is, whether the action or legal remedy for the wrong supposed to have been committed, has not been' misconceived? It must, we think, be conceded, that the common law regards the proceeding by writ of quo warranto as the most appropriate remedy for the King, by which he may at pleasure require any subject exercising a public franchise or authority which he cannot legally exercise without some grant or authority from the crown, to show by what warrant or authority he exercises it, and thereupon demand and have a judicial trial and determination of the legal right of the defendant to exercise such office or franchise; and that; by analogy, the State here may in like cases have the same remedy. But here, as in England, the object and effect of the proceeding must be either tq oust the parly defendant of the franchise, if he fails to show ia himself a complete legal right to its exercise, derived from or under the authority of the State, or, if the franchise has been once legally granted, and has been forfeited by the defendant or those through whom' he derives title to it, to seize it into the hands of the State. But it is believed that no precedent can be found, where this writ was ever issued for the purpose of restricting or preventing any one legally possessed of a public office or franchise, from exercising any right, authority, or privilege incident thereto, or claimed by virtue thereof. It is a legal proceeding, authorized exclusively for the purpose of investigating and determining, by judicial authority, the legal right to a public office or franchise, but is not nor ever was authorized by the common law to be used as the.legal instrument of means of prohibiting or restraining a public officer, or person exercising a public franchise from the doing of any particular act or thing, the right of doing which was claimed by virtue of .such office or franchise, and constituted a portion only or an integral part of the rights, powers, and privileges incident thereto. For example, although it is the appropriate legal proceeding to oust or remove from office, by judicial authority, a person who is ineligible to the office pf Judge of the Circuit Court, or who has not been legally elected, appointed, commissioned, or qualified to hold such office, yet if the office be held by a person eligible thereto, who has been legally elected, or appointed, commissioned, and qualified to hold it, he cannot by such proceeding be legally prohibited or prevented from taking cognizance of and adjudicating any suit or proceeding instituted and pending for adjudication in any Court which he is by law authorized to hold, although such Court may not legally possess jurisdiction of the matter, or authority to adjudicate and determine the controversy. So, if the commission be special, to hold plea of and adjudicate and determine certain cases particularly mentioned and described, a portion only of which he can legally adjudicate and determine, and he assumes jurisdiction over all of the cases so mentioned and described, notwithstanding the want of legal authority in him to adjudicate and determine a part of them, he cannot be legally restrained or prohibited therefrom as to Jthe cases only which he has no legal right to take cognizance of, try, and decide, by any proceeding upon a writ of quo warranto; because, the object and effect of the proceeding in such case would not be to oust or divest him of the office itself, but only to prohibit him from exercising a power incident to the office in regard to a particular case; thus conceding to the defendant the legal title to the office, and denying only his legal right to exercise it over a particular case, or in reference to some particular matter or subject, which is not and never was the legitimate office or object of such writ, or the proceedings thereupon authorized b/ law.
The defendant shows that the Judge of the fifth judicial circuit, embracing the county of Pulaski, had officially certified to the Governor the fact of his disqualification to preside on the trial of sundry cases then pending in the Circuit Court of said county, which were specially designated, and among which were the cases mentioned in the writ; and that-the Governor thereupon appointed and commissioned specially the defendant, for the trial and determination of the cases so certified, , which were also specially enumerated in his commission, including with others the cases mentioned in the writ; and these facts are not controverted by the State, but are, by her replication, admitted to be true. The defendant therefore, from aught that appears in the pleadings before us, is eligible to, and legally possessed of the office of Judge of the Circuit Court, and notwithstanding his office and authority are limited to the trial and determination of the cases specified in his commission, he was unquestionably invested with legal authority to hold the Circuit Court in which such cases were pending, for their trial and determination, and in reference thereto, was clothed with all the powers appertaining to said Court, and was by law to preside therein pending their trial and determination, unless prevented by some legal remedy applicable to the case, and interposed, prosecuted or presented by the parties themselves, instead of the State, if in fact he had no legal jurisdiction of, or right to try and determine a portion only of the cases mentioned in his commission.
The writ before us does not require the defendant to show by what warrant he exercises the office or franchise of Judge of the Circuit Court in and for the county of Pulaski, but simply demands of him to show by what authority he exercises said office in respect to the two cases therein mentioned, being a part only of the cases'he was commissioned specially to try. Nor does the replication question his legal right to the office itself, but simply denies the disqualification of the regular Judge of the fifth judicial Circuit, to adjudicate the cases mentioned in the writ, thus-attempting, as it were, to divide the office, and to consider it as a distinct office depending upon a separate warrant in reference to each case, which the judge is commissioned specially to try and determine, contrary to the fact, as well as every principle of law and justice. This principle, if admitted to be true, might subject the officer to the vexation and expense of exhibiting his authority in every case pending for his adjudication, and a judgment in one case would be no bar to the demand made of him in another, nor could any judgment of ouster from office, or other legal judgment, that we are aware of, be pronounced against him in such case.
And therefore we are of the opinion that the legal remedy for the wrong, if any has been committed by the supposed unauthorized and illegal certification, to the Governor by the regular judge of the Circuit Court of Pulaski county, of the cases mentioned in the writ, has in this proceeding against the defendant been misconceived. And for this reason the demurrer to the replication must be sustained.
