| Wis. | Jul 15, 1843
The respondent by his attorney, has submitted a motion in this case to dismiss, in response to a rule to plead. The reasons in support of the motion are, 1st. The process and proceedings herein are not authorized by law. 2d. The said process and proceedings are not instituted and conducted by any person authorized by law to institute and conduct the same.
This is the first proceeding of the kind that has been attempted in this court. There is no law of the Territory defining the form of proceeding on such informations. The second section of the “act concerning the supreme
The rule is now settled, that an information in the nature of quo warranto will lie, to inquire by what authority any one exercises any particular office or jurisdiction, in which the public are concerned. An office is where, for the time being, a portion of the sovereignty, legislative, executive or judicial, attaches, to be exercised for the public benefit. That the office of judge of probate of Crawford county is an office within this definition, there can be no question ; and that the proceeding by information in the nature of quo warranto may be had against the incumbent judge is equally free from doubt.
The case of Wallace v. Anderson, 5 Wheat. 391, settles this principle: “That a writ of quo warranto cannot be maintained, except at the instance of the government, whatever may be the right of the prosecutor, or person claiming to exercise the office in question. “ It does not appear, affirmatively, that the proceeding in this case is at the instance of the government. It is true, that the style of the relation is: “United States on the relation of Thomas A. B. Boyd v. James H. Lockwood." The attorney-general, or other public prosecutor, is not identified with the relation. It might be conceded that the attorney-general could not withhold his name or sanction, it being now recognized as a civil proceeding, to settle the relative claims of individuals to an office. Be this as it may,
The supreme court is vested with the power to issue the writ of quo warranto, etc. One of the judges thereof cannot, in vacation, issue or order the issuing of the writ.
At the instance of the government, by its proper officer, on the relation of Thomas A. B. Boyd, presenting a proper case, verified by affidavit, this court could not hesitate to take the proper action.
The method of proceeding is to lay a proper case before the court verified by affidavit, upon which the court wiR grant a rule to the party, to show cause why an information should not be filed against him; and unless the cause shown by him be such as puts the matter beyond dispute, the court will make the rule absolute for the information, in order that the question concerning the right may be properly determined. Buller’s Nisi Prius, 210, 211, 212.
We have thought it necessary, in disposing of this motion against the relator, to indicate what is considered to be correct practice under the law applicable to proceedings of this nature, in their inception, that he may present his case through the proper channel and with regularity.
The order made by one of the members of this court at chambers, for a writ, was not made with confidence at the time of its propriety. Subsequent full examination has satisfied that member of the court, that the order was irregular.
The motion is sustained and the proceedings dismissed with costs.