#### THE UNITED STATES, *ex*relationi. THOMAS A. B. BOYD, *vs.*JAMES H. LOCKWOOD,

1 > *In quo warranto.*

A Judge of the Court cannot award a writ of *quo*warranto, in vacation.

Proceedings in *quo*warranto, may be maintained ágainst a Judge of Probate.

Proceedings in *quo warranto*must be at the instance of the Government, acting by the proper officer; they cannot be maintained at the instance of a private person.

The proper course of proceeding in the commencement, is to lay a proper case before the Court at the instance of the proper Jaw officer, verified by affidavit, upon which the Court will grant a rule to show cause why an information should not be filed; if the cause shown is not such as puts the matter beyond dispute, the rule will be made absolute for the information, in order that the question concerning the right may be properly determined.

On the 1st July, 1843, Boyd, the relator, presented to the Chief Justice, in vacation, a relation and affidavit setting forth, that he, the relator, was duly elected to the office of Judge of Probate of Crawford county, at the election held on the first Monday in May, 1843, by a majority of the legal votes cast at the said election; that the certificate of election to the said office ought to have been given to the relator, but that it was given to James PI. Lockwood, who had from that time since usurped the said office against the right of the relator, and concluded with a prayer of *216process, &c. Upon the affidavit, tho Chief Justice made an oi-dor on tho 1st July, to the clerk of tho Supreme Court to issue a writ of *quo warranto*in the case related. The writ was issued *on*the 3d July, directed to the sheriff of Crawford county, and wac served, and returned to this court.

The proceedings were commenced and prosecuted by Best C. Eastman, attorney for the relator.

On the second day of the term, the relator by his counsel moved tho Court for a rulo against the respondent to plead to tho relation, and on the fifth day a rule was ordered requiring the respondent to plead *on*or before tne eighth day of tho term. Under this rule the respondent moved the Court to dismiss the proceedings, because — 1. The process and proceedings are not authorized by law; 2. The said process and proceedings are not instituted and conducted by any person authorized by law to institute and conduct tho same.

Burnett,, for respondent, and in support of the motion:

*The*process in this case was *not*properly awarded, and is without authority of law. The only authority which tho legislature has given upon the subject, is contained in the judiciary act; Slat. Wis. 196. The second section says that the Supreme Court shall have power to issue writs of *mandarnus, quo*warranto, &c. This power is vested in the *court,*and not in the judges separately, to be exercised in vacation. The award of tho writ in this case, made by one of the judges at chambers, is not within tho authority given by the statute. The statute confers a naked authority on tho court to issue the writ, and makes no provision for the subsequent proceedings; and we are left to the original writ of *quo warranto,*to bo carried into effect as at common law. The writ of *quo warranto,*is in the nature of a writ of right for the government, to seize the office or franchise into tho hands of tho government; 2 Wheaton’s Selwyn, 322; Buller’sN. P. 210, 211, 212; 7 Comyn’s Dig. Title Quo Warranto, A, And at common law there is no relator; 2 Wheal. Sel. 323, note 4. This writ, then, having been awarded by a judge in vacation, and not *by*the *court,*and being *upon the*relation of Thomas ,A. 13. Boyd, has been commenced without authority of law, and should be dismissed.

The proceedings are not instituted or conducted upon the proper authority. They were commenced upon the relation of a private *217individual;, and are prosecuted by his attorney, as any civil proceeding. It is an established principle that proceedings in *quo warranto*must be instituted by the government and prosecuted by the Attorney General. 2 Wheat. Sel. 323, 4; Wallace vs. *Anderson, 5*Wheat. 291; *Cleary vs. Deliesseline,*1 McCord, 35. The practice in New York shows that all proceedings of the kind are instituted by the government and prosecutedby the Attorney General; *The People vs. Richardson,*4 Cowen, 97, and note 100 —'123. In *Wallace vs. Anderson,*the Supreme Court of the United States expressly decided, that proceedings in *quo warran-to*to try the right to an office, cannot in any case be maintained except at the instance of the government; and if instituted by a private individual without the authority of the government, they cannot be sustained, whatever the rights of the parties may bo.

Eastman, for relator;

The authority given in the statute to grant writs of *quo war-ranto,*&c., does not apply to the court alone, but embraces, in effect, the judges of the court. The third section of the act that has been referred to, gives the judges in vacation, the power to allow writs of error, certiorari, supersedeas and injunction; and also by the same section, the court is vested with all power and authority necessary for carring into complete execution all its judgments,- decrees, determinations, &c.; and for the exercise of its jurisdiction agreeably to the usages and principles of law. — ■ The meaning of the statute is the same in relation to all those necessary powers; and where it is necessary to the ends of justice, to award a writ in vacation to carry into effect any of the powers of the court, the judge may grant it. This construction will harmonize all the powers of the court, and effect the objects that were intended by the legislature.

Formerly, a *quo warranto*was regarded as a criminal proceeding, in which the usurper was punished by fine, and had to be instituted by the crown. In modern times, it is considered as a mere civil proceeding to try the right to an office. 2 Wheat. Sel. 340; 4 T.R. 809; 2 T. R. 484; 2Tidd’sPrac. 838, 9.— It being in the nature of a civil suit to try the rights of the parties it is not necessary that it should be prosecuted by the Attorney General. The case of *McClernand vs. Field,*in 3 ScammOn, is one in point, and shows that in the Supreme Court of Illinois, tho principle is recognized of trying the right to an office on *quo*war-*218*Tanto,*at the instance of the party, without any connection with tbs' law-officer of the government.

Burnett, in reply:

The very distinctions that have been pointed out in the statute,show a different intention in the legislaluie than the one contended for. Where a general power is given to the *court*for a variety of different objects, and in- some of the cases, the power is given-to the judge to act in vacation, it excludes the idea that he can do so in the others.

The English authorities that have been read, are founded upon the different acts of parliament, and are not based upon the common law. The British statutes never were in force in this Territory, and the decisions upon them, can have no authority m this case.

The case of- *McClernand vs.*Field, was an agreed case, in which every matter of form was waived, and the right to the office, only; submitted to the court. The report of the caso shows nothing of the forms pursued, and it cannot be relied upon as governing the case before the court.

Opinion of the Court, by

Chief Justice Dunn:

The respondent, by his attorney has submitted a motion in this-case to dismiss, in response to a rule to plead. Tire *reasons in*support of the motion,are: 1st. The process and proceedings herein are not authorized by law. 2nd. 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 in such informations. The second section of the “ act concerning the Supreme aad District Courts,” vesls in this court the power of issuing writs of mandamus, quo warranto,-&.C. And the third section vests in if, “ all power and authority necessary for the exercise of its jurisdiction as the supreme judicial tribunal of the Territory, agreeably to the usages and principles of law.” In the exercise of our jurisdiction over informa-.tions in the nature of quo warranto, we must bo governed by the *“*usages and principles of law,” and it is of the utmost importance that they should be correctly understood and defined, step by step, as we proceed.

The rule is now settled, that an information in the nature of *219quo warranto, will lie, to inquire by what authority any one exorcises 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 Court 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*vs. *Anderson,*5 Wheaton, 291, settles this principle: “ that a writ of quo warranto cannot bo maintained, except at the instance of the government, whatever might be the sight of the prosecutor, or person claiming to exercise the office in question; *“*It does not appear, affirmatively, that the proceeding in this ease, is at the instance of the government. It is true, that the style of the relation is; “*The United States on the relation of Thomas A. B. Boyd vs. 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, it should appear in the proceedings, to be at the instance of the government, acting by its proper officer.

The Supreme Court is vested with the power to issue the writ of quo warranto, &c. 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 will grant a rule to tbo 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 ihe question concerning tbo right may be properly determined. Bullor’s Nisi Prius, 210, 11, 12.

We have thought it necessary in disposing of this motion against *220the relator, lo indicate what is viewed to be correct practice under the law applicable to proceedings of this nature, in their inception, that ho may present his case through the proper channel and with regularity.

Eastman, for relator.

Bubnett, forrespondent.

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 to dismiss is sustained and the proceedings dismissed with costs.