# State v. Johnson

In State v. Johnson, 26 Ark. 281 (1871), the attorney general filed an original petition in the supreme court for writ of quo warranto challenging Johnson's authority to exercise the office of Lieutenant Governor. The court ruled on several preliminary motions, each authored by McClure, C.J., infra pp. 282, 288, 293, 295. The court ultimately found in Johnson's favor, infra p. 295.
A lengthy dissenting opinion was authored by Lafayette Gregg, J., infra p. 295.
Supreme Court of Arkansas
26 Ark. 281
State v. Johnson
Original Action for Writ of Quo Warranto
* Court Documents
* Opinion of the Court
* Dissenting Opinion Gregg
[Opinion of the court by Chief Justice JOHN MCCLURE. Dissenting opinion by Justice LAFAYETTE GREGG.]
SCHEDULE TO CONSTITUTION—Construction of.—That clause of the schedule to the Constitution (sec. 10), requiring all officers to qualify "within fifteen days after they shall have been duly notified of their election or appointment," is mandatory, and, for the purpose designed, has all the force and effect of a provision of the Constitution, and is to be construed by the same rules.
The command, and the use of the word "shall," in the schedule, denotes command, that the officer shall qualify within fifteen days after haviag been duly notified of his election, is nothing more nor less than a grant to qualify within that time.
Where the Constitution designates, in express and explicit terms, the precise time when a fundamental act shall be done, and is utterly silent as to the performance at any other time, it cannot be done at any other time.
TRIAL BY JURY.—To what cases does not extend, etc.—The right of trial by jury, at common law, did not extend to summary proceedings, nor to civil proceedings against a public officer, and the proceeding by quo warranto, is nothing more nor less than a civil proceeding against a public officer.
The Constitution having given this court jurisdiction to issue the writs, with power to hear and determine the same, the court has the power to determine the facts arising on the writs in which it exercises jurisdiction.
Petition for Quo Warranto.
​Montgomery, Attorney General, Yonley and E. W. Gantt, for the State.
Watkins & Rose, Rice & Benjamin, Gallagher, Newton & Hempstead, and English, Gantt & English, for respondent

## Statement of the CaseStatement of the Case

MCCLURE, C.J.
On the 14th of December, 1870, at the suggestion of the attorney general, a rule to show cause was awarded against the respondent, why a writ of quo warranto should not be issued against him.
On the 23d of January, a response was filed to the rule, and a demurrer to the suggestion or information of the attorney general. The first cause of demurrer is, that this court has no jurisdiction; the second is, that the information or suggestion shows no sufficient cause of action.
The question of jurisdiction is substantially settled in the case of Price & Barton v. Page, treasurer, 25 Ark., 557. While it is conceded that, in the case referred to, the application was for a mandamus, the determination of the power to issue that writ, by virtue of the original jurisdiction of this court, necessarily disposed of the jurisdiction of the court in cases of quo warranto. And, in exercising the jurisdiction, we do not stand alone; Judges RINGO, DICKINSON, LACEY, JOHNSON, OLDHAM, CROSS, PASCHAL, SEBASTIAN, CONWAY and WALKER, men whose names are familiar to the legal fraternity of the state and whose erudition and legal lore are second to none who have succeeded them, held, for a period of more than fifteen years, after the adoption of the Constitution of 1836, that this court had original jurisdiction in mandamus and quo warranto.
From 1851 to 1864, this court held that it had no original jurisdiction in mandamus and quo warranto. In 1864, Judges PIKE, ENGLISH and COMPTON reversed the opinion of 1851, and followed in the wake of Judges RINGO, DICKINSON, JOHNSON, OLDHAM, CROSS, PASCHAL, SEBASTIAN, CONWAY and WALKER. ​It may be urged that the opinion urged by Judges PIKE, ENGLISH and COMPTON in 1864, is not entitled to much weight, they being the Judges of the Supreme Court at a time when Arkansas was supposed to belong to the Confederate States.
To this it may be replied, that Judges PIKE, ENGLISH and COMPTON were construing the provisions of the Constitution of 1861, which is identical with that of 1836, construed by Judge SCOTT; that they were acting under the solemnity of an oath that hound their consciences and controlled their legal judgments, to the same extent, as was the conscience and judgment of Judge SCOTT bound. As lawyers, and men of legal ability, they have few equals and no superiors; and whether the opinion and decision in The State v. Samuel W. Williams, has the force of a judgment now, it is, at least, entitled to much respect and weight, emanating, as it does, from such a high source.
In the case of The State v. Williams, we find the fallowing language, on the subject of jurisdiction of this court in quo warranto: "We, therefore, declare it to be now the opinion of this court, that, in cases involving the civil rights of the State as sovereign, affecting vitally its character and the proper administration of the government, in which the public has a direct and immediate interest, and when the right to a public office, franchise, liberty or privilege is the subject matter of the controversy, this court is, by the Constitution, invested with the original jurisdiction, to be exercised by means of a writ of mandamus or quo warranto, according as the State may, by her attorney general, ask for one or the other, in order to cause the admission of the proper person to, or to oust the party illegally holding such public office, franchise, liberty or privilege, with power, not only to issue the writ, but to hear and determine the same, being pro hoc vice, both a court of first instance and in the last resort. But we will not extend the remedy beyond the limits prescribed by the old writ, nor permit private persons to interfere and file relations in this court."
Feeling that we are fully sustained in exercising jurisdiction ​in mandamus and quo warranto, by Judges familiar with the law, its practice and its precedents, we will now take up the second ground of demurrer. The question raised by the second ground is: "Is that clause of the schedule to the Constitution of 1868, directory or mandatory, as to qualifying within fifteen days after receiving notice of election?"
It is urged by counsel for respondent, that the clause in the schedule is directory and not mandatory. It is also urged that the schedule is but an ordinance of the convention, and that the rule of construction, applicable to statutes, should apply, rather than that applicable to Constitutions. In the case of Ridley v. Sherbrook, (3 Cold. 569,) the Supreme Court of Tennessee held, that, "the provisions of the schedule, for the purpose for which they were designed, had all the force of Constitutional provisions." This is the only decision upon the subject we have been able to find, in the limited search we have made, and having no disposition to question the correctness of the decision of that court, we will proceed to discuss whether the provision was mandatory or directory.
It is urged by counsel for the respondent, that, "statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute." While, to some extent, this is a general rule, yet it by no means follows that it is an universal rule. In the case of the People v. Cook, (14 Barb. 290, 8 N. Y. 67,) the rule contended for by respondent was laid down, and it is insisted, is applicable to this case. We are unable to comprehend the analogy, and it does not exist; for there is a vast difference between a statute that directs how an officer shall proceed after he is an officer, and a statute that directs how he shall proceed in order to become an officer.
Treating the schedule to the Constitution in the light of a mere ordinance of the convention, and entitled to no more consideration than an act of the Legislature, let us see if it is directory or mandatory. It declares that "All officers shall ​qualify and enter upon the discharge of the duties of their offices, within fifteen days after they have been duly notified of their election or appointment." (Sec. 10, Sched.) One of the first rules of construction is, to ascertain the intention of the law-making power, and carry that intention into effect, if it do not contravene the fundamental law of the land. It is not insisted, that the determination, that the clause of the schedule above quoted, as either a mandatory or directory provision, would contravene any provision of the Constitution, and all that now remains for us to determine is, whether it is a mandatory or directory. Another well established rule of construction is, "where there is nothing doubtful—nothing ambiguous—no words made use of which operate to defeat the manifest intention of the Legislature, there is nothing left for construction." (2 Ohio, 65; 9 Ohio, 553.) Now let us apply these plain simple rules to the language before us. "All officers shall qualify and enter upon the discharge of their offices, within fifteen days after they have been duly notified of their election or appointment." Is there any thing doubtful about the meaning of this language? Is there any thing ambiguous about it? Is it not plain and easy of comprehension? Is there any reason why any new term should be interpolated into the clause quoted, in order to save any natural or acquired right to the citizen? There is none that we know of, and in the absence of a necessity, we are unable to see why it should be done. If the Lieutenant Governor failed to qualify within the fifteen days, or wholly failed to qualify, the existence or permanency of the State government would not have been jeopardized, nor would any public or private interest have suffered. It is true that the Constitution makes it his duty to preside in the deliberations of the Senate, but his failure to preside would not work a suspension of legislation, for the Constitution provides for the election of a President pro tempore. If the schedule declared that all persons elected under the provisions thereof, should qualify before entering upon the discharge of the duties of their respective offices, and fixed no specific time ​within which the qualification should take place, such a provision would have been directory, but such is not the character of the schedule. The command, and the use of the word "shall," denotes command, that the officer shall qualify within fifteen days after having been duly notified of his election, is nothing more nor less than a grant to qualify within that time.
Another well settled rule of construction is, that "no word ever should be rejected, if the statute will admit of a rational and consistent construction, without rejecting it." 3 Ohio 193; 8 Ohio State, 564. Now, why should the words, "within fifteen days after they have been duly notified of their election or appointment," be stricken out of the schedule? It is reasonable to presume that these words were placed in the schedule for some purpose, if so, what right have we to reject them, or treat them as surplusage?
What reason or object could the Constitutional Convention have had by the use of the words, "within fifteen days after they have been duly notified of their election or appointment," if it was not to place a limitation on the time in which an officer was to qualify? The mere inseition of any number of days, within which an officer was to qualify, evidences an intention to limit the time in which the person elected or appointed, should qualify.
But counsel for respondent urge that there is no declaration that the person elected shall not qualify after the fifteen days, and that because there is not, that qualification at any subsequent time may be pleaded in bar against the State, in an action or proceeding commenced to recover the office from one who has not complied with the terms of the grant. If this should be the rule of construction applied to statutes, it would become necessary for the Legislature, in every instance, in a statute to declare, if the thing to be done was not done at the time fixed by law, that it should be void. This rule of construction would create interminable confusion with a large majority of our present statutes, and work irreparable mischief if it once attained a foothold.
​In Maine, (6 Shepley, 548,) the question was presented to the Supreme Court, whether the Legislature could make an apportionment, at a time other than that named in the Constitution, and the court laid down the law to be, that "where the Constitution designates in express and explicit terms, the precise time when a fundamental act shall be done, and is utterly silent as to the performance at any other time, it cannot be done at any other time." In the case now before us the schedule declares that the qualification shall take place within fifteen days after notice. The Tennessee courts say, that the schedule, for the purposes, is as binding as any other portion of the Constitution. The schedule is silent as to qualification, at any other time after the fifteen days, and in such case, the Supreme Court of Maine say, that where the Constitution is silent as to the performance, at any other time, it cannot be done at any other time. Believinz this to be the better nile of construction, as applicable to a case of this kind, we are clearly of opinion that the demurrer should be overruled.
On the 17th of February, 1871, the respondent filed certain affidavits in support of the response to the rule to show cause. The attorney general then informed the court, that he desired to, and could successfully, controvert the facts set forth in the affidavits, and in order that he might have that opportunity, it was ordered that the writ of quo warranto issue, as the only question about which there is any controversy is, whether the Lieutenant-Governor qualified within fifteen days after having been duly notified of his election.
To the writ of quo warranto, a response was filed, setting up really two pleas:
First, That the Congress of the United States, by an act, passed March 2, 1867, entitled "An act to provide for the more efficient government of the rebel States," had declared that, "no legal State government existed in the State of Arkansas;" and that under the provisions of said act, and acts supplemental thereto, it was the object and intent of said acts to enable the people of Arkansas to form a State government, ​republican in form, by the framing and adoption of a Constitution, in conformity with the Constitution of the United States, and which should provide that the elective franchise shall be enjoyed by the persons mentioned in said act, and the adoption of article fourteen, by the Legislature of said State, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and that then and thereafter, the preceding sections of said act shall be inoperative in said State. The plea insists, if such an expression may be allowed in this connection, that the present Constitution did not go into effect until the 22d of June, 1868, and that he qualified more than fifteen days before that date, as Lieutenant-Governor of the State of Arkansas.

## Motion for a Jury to Try the Issue of Fact Presented by the Second PleaMotion for a Jury to Try the Issue of Fact Presented by the Second Plea

[The second plea sets up that he qualified as Lieutenant-Governor within fifteen days after he was duly notified of his election. To the first plea, the attorney general filed a demurrer, and a replication as to the second.]
[The demurrer to the first plea was sustained. On the 20th of February, the respondent filed a motion for a jury to try the issue of fact presented by the second plea, the replication and similiter.]
MCCLURE, C.J.
Here we have a question presented for our consideration, that is not free from difficulty. On the one hand, to refuse a jury to try the issue of fact presented, is at variance with the ideas usually announced from the political rostrum, or spoken of in unguarded terms by the sycophant and demagogue, who caters and bends to public opinion, "that thrift may follow fawning." On the other, we are constrained in our action by the solemnity of an oath, and the limits of the Constitution. Our Constitution declares, "The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy." Counsel for the ​respondent urge, that this provision of the Bill of Rights entitles him to a jury to pass upon the question of fact.
It has been truly said that "a Constitution is not the beginning of government," and that it is adopted with a knowledge that it is, and was made in harmony and consonance with the condition of things existing at the time of its adoption.
In the Constitution of 1836, the 6th section of the Bill of Rights, declares that, "the right of trial by jury should remain inviolate." It will be observed that the Constitution of 1868, in addition to declaring "the right of trial by jury shall remain inviolate," adds the words, "and shall extend to all cases at law, without regard to the amount in controversy." Have the words added, any meaning, or are they merely senseless things? Why are they added? Shall these words be treated as a redundant expression, in order to bring this proceeding within the rule contended for by the respondent?
In the case of the State v. Ashley, (1 Ark. 284,) the point was made, in argument, by Judge Watkins, who was attorney in that case, that the court could not exercise original jurisdiction in quo warranto, because, in the determination of the proceeding, matters of fact usually, and almast necessarily arise; and that in the exercise of the power to hear and determine the same, inasmuch as this court had not been provided with a jury, it being a well settled principle of the law, that whether the jurisdiction was original or appellate, the jurisdiction could not be exercised without the intervention of an act of the Legislature, would contravene that provision of the Bill of Rights, which asserts "the right of trial by jury shall remain inviolate."
In response to this position Mr. Pike said, it "hardly merits notice." He further states that the right of trial hy jury was the right of trial, "existing at the adoption of the Constitution," which was, that "every man shall be tried by his peers of the vicinage," and that no free man shall be arrested or ​imprisoned, or deprived of his free hold, except by the regular judgment of his peers, or the law of the land."
Chief Justice RINGO, after hearing these arguments, in a very able and elaborate opinion, held that the court had jurisdiction, but he nowhere states or gives any expression upon the argument presented, and it is fairly inferable that the exercise of jurisdiction, in his opinion, did not contravene the right of trial by jury.
It will be admitted, by those of the profession, who are familiar with the practice of the law; that the proceedings in which a jury was not required at common law, that the clause of the Constitution, declaring the right of trial by jury, shall remain inviolate, does not give it.
When the Constitution was framed, adopted and ratified by the framers and the people, it was well known that this court was not provided with a jury, or the means to procure it, and yet, with this knowledge before them, they gave this court jurisdiction in mandamus and quo warranto, with power to hear and determine the same. That the people, themselves, had not only the right, but power to provide that this court should determine questions of fact, arising on the writs, in which it exercises jurisdiction, we presume will not be denied.
Whether the right of trial by jury ever existed as a matter of right in quo warranto, is not a matter easily determined, by direct precedent. The respondent claims that such is the uniform practice, not only in this country, but in England, and in support of that position, quite a number, of authorities have been submitted to our consideration. On a careful examination of the authorities cited, we have found them to apply to informations in the nature of a quo warranto, the former being a criminal prosecution, and the latter a proceeding upon a writ, in the nature of a writ of right, which partakes more of what is now known as a summary proceeding, than a "case at law."
The right of trial by jury, at common law, never existed in equitable proceedings, in admiralty or summary proceedings, or proceedings against officers of a civil nature, nor did it ​exist in cases where private property was taken for public use, and yet in all these proceedings, questions of fact, involving the tenure to property in untold amounts, axe adjudicated upon by the courts, without the intervention of a jury.
So far as we can now trace the right of trial by jury, at common law, it did not extend to equitable actions, admiralty or summary proceedings, nor in cases where private property was taken for public use, nor in proceedings in rem, nor in civil proceedings against public officers, and this proceeding is nothing more or less than a civil proceeding against a public officer. By Magna Charta, it is declared that "no freeman shall be arrested or imprisoned, or deprived of his freehold, except by the regular judgment of his peers, or the law of the land."
In the seventeenth year of the reign of King John, at Runnymede, these concessions were made by the crown, and from that time forward, to some extent, the rights of Englishmen have been determined by the concession then made. King John's construction of the concession was, that it did not protect the "goods and chattels;" and, as an evidence of this, we have but to refer the unread to history of the time, and it will be found that armed forces were sent against the secret enemies of the king, and they were despoiled of their goods, without observing any form of law. Langton and his associates, and many others, were thrown into prison and despoiled of their goods, without the intervention of a jury, notwithstanding Magna Charta. Ling. His. Eng., vol. 2, 225 n. So far as our research has extended, the right of trial by jury, at common law, only extended to criminal prosecutions, and in actions where a freehold or goads and chattels were in dispute.
The term, "goods and chattels," includes personal property, choses in action, and chattels real. The right to an office is neither personal property, or a chose in action, or chattels real, in the sense used at law. In information in the nature of a quo warranto, it is expressly provided by an act of parliament, (3 Geo., 2 ch., 25), that a jury shall be struck before a proper ​officer, on the demand of the king or the respondent. This statute was passed for the special purpose and to the end that his majesty's courts, at Westminister, might be provided with juries to try questions of fact. If this right existed before this time, it was certainly a work of supererogation on the part of parliament to enact the law, and the inference to be drawn from this fact is, that, prior to the date of the statute, the issues of fact were tried by the court, even in cases of informations in the nature of quo warranto, which, at best, is but little more than a summary proceeding to asoertain the right to an office.
As yet, this court is the only tribunal in the State having jurisdiction in quo warranto. Under the Constitution of 1826, the circuit courts were courts of original jurisdiction; they are not so now; the circuit courts are mere creatures of the Legislature, and without any constitutional jurisdiction. It is clear that the eighteenth section of the Civil Code, regulating the jurisdiction of the circuit courts, does not confer upon them the power to hear and determine the high prerogative writs used for the protection of the sovereignty of the State. It is not intended to intimate that the Legislature has no power to confer the jurisdiction, but that it has not conferred it.
We have already stated that, when the members of the convention framed and adopted the present Constitution, they were well aware that this court was not to have a jury, and that the jurisdiction in these writs was conferred with a full knowledge of this fact. The proceeding at law is not a criminal action, and yet, from the tearful and pathetic argument of the counsel, one would be led to suppose that the respondent was being tried for murder or treason, and the argument is based upon the false assumption that his client is to be hanged, without the intervention of a jury. The object of this proceeding is to require the respondent to come into court, and show the title to the office, the functions of which be has been exercising. If he has title, no harm can befall him; if he ​has no title, he is simply ousted from the office, whose functions he has usurped. No penalty, imprisonment or fine is imposed, no matter what way the judgment goes.
It has been frequently held, that right of trial by jury, at common law, never extended to cases of defaulting or delinquent officers of the government. 2 Stew., 131; 6 Man., 641; Hardin's Rep., 5 ; 17 Ala., 516, and the States in which these holdings have been made, have denied a jury when demanded, on the sole ground that, in actions against public officers, the right of trial by jury did not exist at common law, if the actions were not of a criminal nature. Believing this to be the correct distinction, we are unable to see wherein the denial of a jury would contravene the right of trial by jury, as it existed at common law, or as it existed at the adoption of the Constitution. If we were to consult our own conscience, or desired to shirk the duty imposed on us by the Constitution, we should at once order a jury, to dispose of this question; but, inasmuch as neither the Constitution nor the Legislature has provided this court with a jury, or the means of obtaining one; and, inasmuch as there would be no court in the State, with jurisdiction, to protect the officers of the State from usurpation, if this court were to refuse to exercise the jurisdiction conferred, we feel it to be our duty, under all the circumstances, to overrule the motion for a jury.

## Motion for a JuryMotion for a Jury

[On the 20th of February, 1871, a motion for a jury was filed, under XIV. amendment to the Constitution of the United States.]
MCCLURE, C.J.
We see nothing in this motion that was not really disposed of in the first demand for a jury. We have carefully examined the opinion of Judge BRADLEY submitted by counsel for respondent, and can come to no other conclusion than that he made a hasty and ill-advised obiter dictum, in the case referred to; and, as an evidence of this fact, we direct attention of ​counsel to the fact that he says the civil rights bill and the XIV. amendment have no relation to each other.
On the very next day he comes into court and says that he is convinced that he was in error in that respect, and recants his position of the day previous. This, taken in connection with the fact that the case turned on a question of jurisdiction, and that the remarks made were not pertinent to the disposition of the case, entitles the argument to no more weight than that of any other lawyer of equal ability. The fourteenth amendment originated in Congress, and many of the same men who aided in proposing the amendment to the States, were in Congress when the enforcement act was passed. Under such circumstances it will not be unreasonable to presume that congressional construction is of as much weight on that subject as the opinion of Judge Bradley. Congress, under the authority given that body, to enforce the amendments, undertakes to define the rights sought to be preserved and protected by the fourteenth amendment, and by the sixteenth section of said act it is declared, "That all persons within the jurisdiction of the United States, shall have the same right in every State and territory of the United States, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other; any law, statute, ordinance, regulation or custom, to the contrary notwithstanding. No tax or charge shall he imposed or enforced by any State upon any person immigrating thereto from a foreign country, which is not equally imposed and enforced upon any person immigrating to such State from any other foreign country; and any law of any State, in conflict with this provision, is hereby declared null and void." There seems to be no intention to extend the right of trial by jury to cases where it did not exist before, and we do not think the fourteenth amendment was adopted for any such purpose. The motion is overruled.

## Motion to Dismiss for Want of JurisdictionMotion to Dismiss for Want of Jurisdiction

[On the 22d of February, 1871, a motion was made to dismiss for want of jurisdiction, on the ground that this court had no power or authority to impanel a jury.]
MCCLURE, C.J.
If has already been very clearly intimated that this court would hear the facts in this proceeding and dispose of the case on its merits. If the case should be dismissed at this stage, the jurisdiction in quo warranto would cease when an issue of fact was presented for trial, and the result of such a holding would be that it would have jurisdiction in cases where no question of fact was presented, and that if a question of fact should be presented, this court would be ousted of jurisdiction. The jurisdiction of this court is not to be measured, nor does it hang upon so feeble a tenure.
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