A proceeding in the nature of a
quo warranto in one of
the territories of the United States to test the right of a person
to exercise the functions of a judge of a supreme court of the
territory must be in the name of the United States, and not in the
name of the territory. If taken in the name of the territory, the
error may be taken advantage of on demurrer, and it is fatal.
The act of Congress organizing the Territory of Nebraska ordains
that the executive power in and over
the territory shall
be vested in a governor, that the legislative power shall be vested
in a governor and legislative assembly, and that the judicial power
of the territory shall be vested in a supreme court &c. And the
code of the territorial legislature [
Footnote 1] gives the remedy of information against
"
any person unlawfully holding or exercising any public
office or franchise
within this territory," providing also
that the defendant shall "answer such petition in the
usual
way, and, issue being joined, it shall be tried in the
ordinary manner."
With these provisions in force, the district attorney filed in
one of the district courts of Nebraska territory an information in
the nature of a
quo warranto in the name of the
"
Territory of Nebraska, on the relation of Eleazar
Wakely," against a certain Lockwood, to test the rights of the said
Lockwood to exercise the office of an associate judge of the
supreme court of the territory; a court in which, as is known, the
judges are appointed by the President of the United States. The
information was full, explicit, and technical in its statement of
the case; alleging, with circumstance, that the relator had a right
to the office, and that the defendant held, exercised, usurped, and
invaded &c., without any legal warrant &c. The defendant
demurred generally. The district court sustained the demurrer, and
gave judgment in his favor. The relator took the case to the
supreme court of the territory, where the judgment below was
affirmed. This was a writ of error to reverse that judgment.
Page 70 U. S. 237
The question presented for the determination of this Court was,
whether the petition was well brought in the name of the
territory, or whether it should not have been in behalf of
the United States.
Page 70 U. S. 238
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The writ of
quo warranto was a common law writ. In the
course of time, it was superseded by the speedier remedy of an
Information in the same nature. [
Footnote 2] It was a writ of right for the King. [
Footnote 3] In the English courts an
information for an offense differs from an indictment, chiefly in
the fact that it is presented by the law officer of the Crown
without the intervention of a grand jury. [
Footnote 4] Whether filed by the attorney general or
the master of the Crown office, and whether it relates to public
offenses or to the class of private rights specified in the statute
of 9 Ann. ch. 20, in relation to which it may be invoked as a
remedy, it is brought in the name of the King, and the practice is
substantially the same in all cases. [
Footnote 5] Any defect in the structure of the information
may be taken advantage of by demurrer. [
Footnote 6]
Page 70 U. S. 239
In this country, the proceeding is conducted in the name of the
state or of the people, according to the local form in indictments,
and a departure from this form is a substantial and fatal defect.
[
Footnote 7]
In
Wallace v. Anderson, [
Footnote 8] this Court said
"that a writ of
quo warranto could not be maintained
except at the instance of the government, and as this writ was
issued by a private individual, without the authority of the
government, it could not be sustained, whatever might be the right
of the prosecutor or the person claiming to exercise the office in
question."
In the case of the
Miners' Bank v. United States,
[
Footnote 9] on the relation of
Grant, the information was filed in the name of the United States
in the District Court of Iowa territory. The sufficiency of the
information in this respect does not appear to have been
questioned. A state court cannot issue a writ of mandamus to an
officer of the United States. "His conduct can only be controlled
by the power that created him." [
Footnote 10] The validity of a patent for land issued by
the United States "is a question exclusively between the
sovereignty making the grant and the grantee." [
Footnote 11]
The judges of the Supreme Court of the Territory of Nebraska are
appointed by the President and confirmed by the Senate of the
United States. The people of the territory have no agency in
appointing them and no power to remove them. The territorial
legislature cannot prescribe conditions for the tenure or loss of
the office. Such legislation on their part would be a nullity.
Impeachment and conviction by them would be futile as to removal.
The right of the territory to prosecute such an information as this
would carry with it the power of a motion without the consent of
the government from which the appointment was derived. This the
territory can no more accomplish in one
Page 70 U. S. 240
way than in another. The subject is as much beyond the sphere of
its authority as it is beyond the authority of the states as to the
federal officers whose duties are to be discharged within their
respective limits. The right to institute such proceedings is
inherently in the Government of the nation. We do not find that it
has been delegated to the territory. We think the demurrer was well
taken.
Judgment affirmed with costs.
[
Footnote 1]
10 Stat. at Large 277.
[
Footnote 2]
5 Bacon's Abridgment, 174, Tit. Information A; 3 Blackstone's
Commentaries 263.
[
Footnote 3]
7 Comyn's Digest p. 190, Phila. ed., 1826; Tit. Quo War. A.
[
Footnote 4]
2 Hawkins' P.C., chap. 26, § 4.
[
Footnote 5]
Cole on Informations 65, 113;
Rex v. Francis, 2 Term
484; 4 Blackstone's Commentaries 312.
[
Footnote 6]
Regina v. Smith, 2 Moody & Robinson 109;
Regina
v. Law, id., 197
[
Footnote 7]
Wright v. Allen, 2 Tex. 158;
Wright v. People,
15 Ill. 417;
Donnelly v. People, 11
id. 552;
Eaton v. State, 7 Blackford 65;
Comm. v. Lex & H.
T. Co., 6 B.Monroe 398.
[
Footnote 8]
18 U. S. 5
Wheat. 292.
[
Footnote 9]
46 U. S. 5 How.
213.
[
Footnote 10]
McClung v.
Silliman, 6 Wheat. 605.
[
Footnote 11]
Field v.
Seabury, 19 How. 332.
