# State v. Johnson/Dissent Gregg

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Gregg
​GREGG, J., dissenting, says:
The relation of the attorney general, after announcing that had usurped and exercised the office of ​Lieutenant Governor without warrant or sufficient authority, admits his election to that office, but alleges that he failed to take his oath of office and enter upon the duties thereof, within fifteen days after he was notified of his said election.
Second. That he refused to qualify according to law, and filed a copy of his oath in the office of the secretary of State, whereby he had forfeited any right he may have had to that office.
It has been intimated, in argument, that a quo warranto is a favored prosecution; but upon the demurrer to this writ, it has not been contended that the attorney general, in his relation, is not bound to state facts which, if true, by law, the respondent is not entitled to hold the office; in other words, he must state facts which show that the State is entitled to a judgment of ouster.
In this, as in other suits at law, the pleader should state facts, matters issuable, and not conclusions or inferences of law; and if the facts charged constitute no cause of action against them accused, he may suggest that to the court, and be relieved from making any response. This is the ground assumed by the respondent here, and denied by the relator.
The latter clause of the tenth article of the schedule to the Constitution of 1868, declares that, "all officers shall qualify and enter upon the discharge of the duties of their offices within fifteen (15) days after they have been duly notified of their election or appointment."
The principal questions urged upon the attention of the court are:
First. The relator urges that this clause in the schedule is mandatory, and must be complied with; and if respondent failed to comply therewith he forfeited all rights he had acquired to the office, and could not afterwards assume the franchises, powers and privileges of that office. And the respondent urges that this clause of the schedule is directory, and if the party does not take the oath of office within the time stated he may thereafter take such oath and enter upon the duties of ​the office; and that if a failure to take such oath within the time is a violation of said clause, there is no penalty affixed for such neglect or violation, and it is not within the scope of judicial authority to create a penalty or declare what that penalty shall be.
Although this precise case is new in this court, there have been many questions strikingly analogous in principle to the ones here presented.
Mr. Sedgwick, in his work on statutory and constitutional law, 368, says: "When statutes direct certain proceedings to be done in a certain way, or at a certain time, and a strict compliance with these provisions of time and form does not appear essential to the judicial mind, the proceedings are held valid though the command of the statute is disregarded or disobeyed." See, to the same points, Cooley's Const. Lim., 74, et seq.
Whether or not the general principle here enunciated, is applicable to the case before the court, depends upon the question as to whether or not the time for taking the official oath, as stated in this schedule, is of the essence of the thing to be done. To arrive at that we should look to the purport, meaning and intent of this act, or schedule. A Constitution had been framed, the fundamental principles of an original law had been agreed upon, and now it was desired to have the assent of the people to this fundamental law; and the delegates then undertook to direct in what manner the people should express their assent or dissent to this law, and in what manner they should choose officers to fill the various positions provided for in such organic law, and at what time and in what manner these officers should enter upon the discharge of the duties of their respective offices. It directs how the elections shall be held; provides for commissioners and judges of elections; directs how elections may be contested, and the result declared; and, in short, prescribes the manner of forming a government, in accord with the organic law thus agreed upon. This ordinance was to declare the manner of getting up the machinery ​of the new government. This schedule was no part of the fundamental law of that government, as was insisted in argument. Instead of being a part of those "fundamental maxims and unvarying fixed rules by which all departments of the State government should at all times shape their course," it was a most fleeting and temporary enactment; instead of being declared a principle to regulate law-makers as well as individuals, it fixed its own hasty dissolution. That fundamental law, like a will of the schedule, could not go into full force and effect until all the functions of the schedule had been performed. The termination of its existence was the recognized beginning of the Constitution's authority and power over the people, and the departments of the State; therefore, instead of th;is being of the ground work, or fundamental principles of government, it did not even claim the stability of an ordinary statute; it pretended only a temporary existence, for a temporary purpose, and in all of its offices it was most peculiarly advisory—directing the manner of forming an organization which was to carry out the laws enacted. And the taking the oath of office was a preliminary step to the object intended.
If the person elected, failed or refused to qualify as directed, the proper authorities might have taken measures to declare the office vacant; but if no such steps were taken, and no vacancy declared until he came forward and qualified, and entered upon the duties of the office, no forfeiture could be declared; and all penalties for non-compliance with statute law, should be fixed by law, and a court cannot say forfeiture of the office shall be the penalty, when the law-making department have not so declared.
In the case of Glidden v. Towle, 11 Foster, 166-7, the Supreme Court of New Hampshire, held, upon a statute requiring town officers to appear and take an oath within six days after their election, that, "These are general provisions in regard to town officers, but they apply to fence viewers in the same manner as though specifically enacted in regard to them. Were it ​made to appear that the fence viewer, in question, had been duly notified of his election, as required by statute, and had neglected to take the oath of office, as therein stated, the selectmen might, perhaps, have treated his conduct as a refusal to accept the office, and appointed another in his stead. But nothing of the kind appears, and, in the absence of any time being fixed in which a vacancy is declared to exist, or of any one being appointed in his stead, we see no objection to his taking the oath at the time he did, and of his entering upon the duties of his Office." (He was elected in March, and did not take the oath until the 26th of July following.)
In case where a sheriff, by statute, was required to file bond within twenty days after notice of his election, the Supreme Court of New York held "that the statute may be considered in that respect, directory to the sheriff merely, and not as imposing an absolute limitation upon him" 12 Wend. 483.
In the case of the Mohawk and Hudson Railroad Company, the Supreme Court of New York, said: "The statute requiring inspectors of corporate elections to take an oath, is simply directory in its terms, and without any nullifying clause, on account of omission," etc. 19 Wend. 143. Nor is there any nullifying clause in the schedule under consideration.
The court of appeals, in New Jersey, in the case of Kearney v. Andrews, 2 Stockton's Ch. 24, under a statute that required the officers of a town to take an oath of office within ten days after an election, say "it was directory, only, and that the alderman and member duly elected did not forfeit their offices by their neglect of being sworn in within ten days after their election. The counsel, in my judgment, are right in this construction; the neglect to take the oath of office did not, ipso facto, vacate the office.
"The officers elected would have been legally qualified to discharge their duties of office had they been sworn in after the expiration of ten days, but an officer * * * may resign his office, or he may refuse to act; and, in either case, his office may be declared vacant, and his place supplied. If, ​therefore, he is required to take an oath of office, and he declines to do it within the time prescribed by law, while such neglect does not, ipso facto, vacate his office, the body, of which he is a member, may declare the office vacant, upon the ground of his refusal or neglect to assume the responsibilities in the mode directed by law." This lucid statement of the law, by that learned court, needs no comment.
In the case of Heath and others, the Supreme Court of New York say: "Nothing is better settled, as a general rule, than that, where a statute requires an act to he done by an officer within a certain time, for a public purpose, the statute shall be taken to be merely directory; and though he neglect his duty, by allowing the time to go by, if he afterwards perform, the public shall not suffer by the delay." 3 Hill, 47; see, also, 6 Wend., 486.
In the case before the court, it certainly will not be insisted that the taking of this oath, by the Lieutenant Governor, was an act to be done for a public purpose; and this very learned court say, a neglect of duty in letting the time go by, if he afterwards perform, the public shall not suffer by the delay. And no vacancy is alleged to have occurred, nor injury done, in this instance.
We are clearly of the opinion that qualification and entering upon duty by the Lieutenant Governor, after the expiration of the fifteen days, would entitle him to the office. The schedule, in its whole scope and spirit, is a directory act, and no negative words are used prohibiting the taking of the oath at any time after the fifteen days, and no penalty is affixed for failing to take it within that time.
The taking of the oath was collateral and preliminary to the main object of filling and exercising the functions of the office, and not the essence of holding or doing the duties thereof.
For the same reasons that this demurrer should have been held good, we are of opinion the demurrer to the respondent's second plea should have been overruled.
We also disagree with a majority of the court upon the ​motion filed praying for a trial, of the issue of fact herein joined, by a jury.
We regard the right of trial by jury, in actions at law, as one of those fundamental principles of liberty that may be claimed by any suitor, when his right of property, liberty ar character is put in issue before a court at law.
Our Bill of Rights, section 61, declares that "the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy."
It has been assumed, in argument, that this is a peculiar action, and that, while this court is, by the Constitution, clothed with power to issue this writ, and to hear and determine the same, there is no authority given or mode prescribed by which a jury can be brought into court to try the issue of fact, and that it. necessarily follows that the court must determine all question ,: of hoth lnw and fact. This by no means follows. If it be true that this court has jurisdiction to hear and determine this cause, then the ordinary legal means, necessary to ascertain the facts, follow as an incident to such power. See State v. Morrill, 16 Ark., 384; Fletcher v. Oliver, 25 Ark., 298.
If, to say no statute has directed how we shall procure a jury, is sufficient to deprive the respondent of a trial by jury, is it not equally forcible to say there is no statute directing in what form process of summons shall be issued, to whom directed, by whom, how and at what time it shall be served, when and in what manner returned? and, therefore, the court cannot take jurisdiction of the respondent and decide his case. Yet, by an appeal to the inherent powers of the court, and its just discretion, we readily formed a writ, quickly decided the sheriff should execute it, and as readily determined how it should be returned, and that, thereby, we had jurisdiction of the respondent and his case.
If this discretion was proper, why cannot the same inherent powers and judicious discretion direct a jury returned to the bar to decide the facts in the cause upon which the court ​would determine the rights of the parties? If the latter discretion and power cannot he exercised, the right to determine the case should be held in abeyance and await legislative action. See 38 Mo. (7 Wright) 539.
But we are of opinion that where the fundamental law authorizes and empowers a superior court to hear and determine a cause, the grant carries with it the incidents necessary to carry out that power, and that the usual modes of trial, as understood and regulated by the common law, may be adopted to ascertain the necessary facts in the case; 1 Tenn., 363; and that while the court responds to issues of law, a jury should respond to issues of fact; and if no mode of trial has been prescribed, the common law is in force and should be pursued.
This is said to be unlike an information in the nature of a quo warranto, wherein a party may demand a jury trial.
We are aware that anciently, under the common law, there were proceedings in the nature of a quo warranto, so-called, prosecuted by the crown officer, upon which the accused, if convicted, was subjected to punishment as well as ouster from office. These were criminal informations or prosecutions, and differed from the suit by quo warranto, which had for its leading object to determine the respondent's right to the emoluments and franchises of an office. But the forms and proceedings by quo warranto were so cumbersome and fraught with such disadvantages that it was abandoned by the English courts as far back as the date of Queen Anne; and an information in the nature of quo warranto, adopted for the very purpose of the ancient writ—the trial of the right to an office—and most of the American States pursue, by statute, a similar remedy to try the right of a claimant to an office.
Hence, in looking over the precedents of trials, they are generally upon such informations in the nature of quo warranto, but are, in substance, the same as quo warranto, each being for the distinct purpose of trying the right to an office; and we must look to the substance of the proceedings, and not to the name merely. In informations in the nature of quo warranto, as ​far back as Charles II, and William III., we find the accused had a trial by jury. King v. Mayor of London, 1 Shower, 251; King v. Carpenter, 2 Shower, 47; King v. Bridge, 1 William Blackstone, 45.
In the case of King v. Francis, as far back as 1788, an objection was made to granting a new trial on an information in the nature of a quo warranto. "The court granted a new trial, saying that of late years, a quo warranto information had been considered merely in the nature of a civil proceeding, and that there were several instances since the case in Streye, in which a new trial had been granted." 2 Term, 484.
These cases show that, in the King's Bench of England, these proceedings were considered civil actions, over one hundred years ago, and they were there tried by jury. And Mr. Selwin, in his Nisi Prius, vol. 2, 1180, says: "In a quo warranto to try defendant's right to be bailiff of Scarborough, in setting out his right, he showed his election," etc., etc., "and it being objected on the trial that this record ought not to be read against the defendant, and the judge having allowed it to be read, and left the whole evidence on both sides to the jury, to consider whether these persons were bailiffs," etc.
This shows, then, a jury trial, not on an information in the nature of quo warranto, but upon a writ of quo warranto. So, if there was a real difference, it is not shown in the mode of trial.
In Pennsylvania an information in the nature of a quo warranto, to test the right of an accused to hold an office, is triable by a jury. Com. v. Woelper, et al. 3 Serg. & R. 28.
In the case of the Commonwealth v. Del. and H. Canal Company, upon quo warranto, the court, in speaking of their statute authorizing special proceedings in that case by quo warranto, etc., say: "It is matter of no importance to the parties whether this authority is exercised in the common law or in the equity form, provided the right of trial by jury is not interfered with, as it cannot be in this case." 43 Pa. sec. 300.
Here this able court recognized the right of trial by jury in ​quo warranto, as a common law right, saying that the State might proceed in the equitable form under their statute, provided the right of trial by jury should not be interfered with, clearly indicating that they recognized no power in the Legislature to deprive the respondent of a jury trial; and how much more should we regard this right when guaranteed by our Constitution and laws.
In the case of the Commonwealth, ex rel. Jackson v. Smith, 45 Pa. sec. 59, the Supreme Court say: "This was a proceeding founded on petition of Isaac Jackson, et al., against Smith et al., praying that the process of Taw be awarded, etc.; that "defendants show by what authority they claim to have, use and exercise the liberties, duties and privileges of said office. On this petition a writ of quo warranto issued as prayed for." The defendants, by plea, denied the election of the relators, and claimed that they were duly elected; to which the relators replied that the defendants were not duly elected, and thereupon issue was joined; the case was tried before Lowrie, J., and resulted in a verdict for relators, etc.
In the case of the Attorney General, rel., v. Lindsey, 4 George (Miss.) 508, the court say, that, a quo warranto and an information in the nature of a quo warranto are the same. Under the modern practice both are but suits at law, to determine a right to office. See, also, 38 Mo. 539.
In Indiana, in the case of the Bank of Vincennes v. The State, in a suit of an information in the nature of quo warranto, various issues were made up, and they were submitted to a jury for a trial. This was no proceeding to have the bank convicted, fined or imprisoned, but a civil suit to determine whether or not she, as a corporation, could exercise certain privileges claimed by her, and that learned court treated the verdict as it would in other cases at law; 1 Blackf., 269 ; and in the case in 38 Mo., referred to, the court refused to allow the case heard before them, because no provision had been made by law for a jury trial. These cases show how other courts proceeded to determine a right to the franchises of an ​office; and in cases of this character, where an issue of fact was to be determined by the testimony of witnesses, we have not been able to find any case in which a court, since the beginning of the days of English liberty, upon direct application, refused a litigant the right of trial by jury.
Yet we rest our conclusions not so much upon these rulings, as upon the fundamental maxims of free institutions and popular governments; upon principles recognized as the foundation of civil liberty, and, beyond memory, ingrafted upon the common law of England, and made a part of the frame-work of the original law of the American States, and that of the Union of those States. That venerable author, Sir William Blackstone, in speaking of the value of the trial by jury, says: "In Magna Charta it is more than once insisted on as the principal bulwark of our liberties." Vol. 2, 350. Further on he says: "Upon these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law, and it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases? But this we must refer to the ensuing book of these Commentaries, only observing, for the present, that it is the most transcendent privilege which any subject can enjoy or wish for; that he cannot be affected, either in his property, his liberty or his person, but by the unanimous consent of twelve of his neighbors and equals," * * * "and therefore, a celebrated French writer, who concludes, that because Rome, Sparta and Carthage have lost their liberties, therefore, those of England, in time, must perish, should have recollected that Rome, Sparta and Carthage, at the time when their liberties were lost, were strangers to the trial by jury. * * * It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity and himself, to maintain to the utmost of his power, this valuable constitution in all its rights; * * * and above all, to guard with the most jealous circumspection, ​the introduction of new and arbitrary methods of trial, which under a variety of plausible pretences may, in time, imperceptibly undermine this best preservative of English liberty."
In conclusion of this question: If this right was not a pillar in the foundation of free government, the declarations in our Constitution, that "it shall remain inviolate," and our statute, that, "All issues of fact joined in any suit at law, in any court of record, shall be tried either by the court, by jury, or by arbitrators; First, the trial shall be by the court, where neither party shall demand a trial by jury; Second, a, trial shall be by jury when either party shall demand such trial; Third, It shall be tried by arbitrators on the agreement of the parties to refer the matter in dispute to arbitrators;" Gould's Digest, section 99, chapter 133, would determine our ruling.
No one denies this being a suit at law, in a court of record; and there can be no question but the issue is purely one of fact. This law says in all such cases, the trial shall be by jury, where either party demands it. As no exceptions are made in this law, we are of opinion, a jury trial ought to have been awarded.
The power of this court to exercise original jurisdiction in cases of quo warrarnto and mandamus, is a question not free from difficulty. The various Constitutions of the State, from that of 1836, to the present time, we regard as substantially the same upon this subject.
In the earlier history of the State, the question seemed not to have attracted any marked attention and discussion, and this court assumed jurisdiction, and occasionally the same was exercised, up to the twelfth volume of the Reports, when, in the case of Allis, ex parte, a most elaborate consideration of the subject was had, and it was determined that such writs should be issued by this court, only in the exercise of its appellate powers, or superintending control over inferior tribunals, when such interposition was necessary to prevent a failure of justice; and that ruling was the settled law of this court up ao the twenty-fifth volume of Reports. See Marr, ex parte, 12 ​Ark. 84; Allis, ex parte, 12 Ark. 102; Crise, ex parte, 16 ib., 195; Goad, ex parte, ib. 411; Jones v. City of Little Rock, 25 Ark. 287.
We concur in the doctrine announced in those cases.
The opinion, by our Chief Justice this morning referred to, in the so-called Confederate court, of the State against Williams, is, by us, regarded of less weight than most learned opinions—not from a want of ability on the part of the distinguished gentlemen who are said to have presided over that tribunal, but from the occasion and circumstances that prcduced what is said to have been their opinion. There was certainly a want of that calm reflection necessary to a judicious opinion upon important questions of constitutional law. We need not resort to our knowledge of that intense prejudice and excitement, seen only in the last convulsions of a desperate war, and which challenze the reason of great act well as smaller minds. But the opinion, upon its face, shows that it was brought forth under a terrible military rule; and that the court's own existence, if not destroyed, was seriously questioned by the war power under which it existed; and the authority it assumed to represent, had dominion over but a small part of the State.
What purports to be their opinion, sets out by declaring that they will only assume jurisdiction in a case "involving the civil rights of the State as sovereign, affecting vitally its character, and the proper administration of the government." These writs, not be issued at the suit of individuals, but only as the State, by her attorney general, may ask; yet, the very case then before them was at the instance of one claiming to be a temporary attorney general, and against the acknowledged attorney general of the State, and the court assumed jurisdiction over the person of the accused, when, according to their own records, he was residing in and protected by a hostile government. With this stretch of jurisdiction, and the language of the Judge who wrote the opinion, pouring out such a mass of bitter invectives against the lawful government, and ​heaping like abuse upon a late Confederate for laying down arms, (an example that he himself soon followed), shows conclusively to us a want of such frame of mind as renders opinions profound and authoritative; and had that gentleman then been holding a valid court, he should have shown more of deliberate judgment, and less of passion, than appears in the pamphlet presented us, before we could have recognized his ipse dixit as weighty authority.
The importance of having a court of appeals, a court for the correction of errors, situate remote from the excitement and passions that so often attend original trials, certainly was anticipated by the framers of our system of laws, and we think the whole theory of our jurisprudence is a cogent argument against the exercise of original jurisdiction by this court. And we regret that our state of health, since this trial began has prevented us from elaborating this subject.
We concur in the finding of the court, on the facts of the case.