State ex rel. Broatch v. Moores

• Decision Date: 23 September 1898
• Docket Number: 9249
• Citation: 76 N.W. 530,56 Neb. 1
• Parties: STATE OF NEBRASKA, EX REL. WILLIAM J. BROATCH, v. FRANK E. MOORES
• Court: Nebraska Supreme Court

76 N.W. 530

56 Neb. 1

STATE OF NEBRASKA, EX REL. WILLIAM J. BROATCH, v. FRANK E. MOORES

No. 9249

Supreme Court of Nebraska

September 23, 1898

ORIGINAL application in the nature of quo warranto to oust respondent from the office of mayor of the city of Omaha on the ground that he is ineligible within the meaning of section 2, article 14, of the constitution, providing that any person who is in default as collector and custodian of public money or property shall not be eligible to any office of trust or profit under the constitution or laws of the state. Heard on demand of respondent for a trial by jury, on exceptions to referee's findings against respondent, and on motion of relator to confirm said findings. Judgment of ouster.

JUDGMENT OF OUSTER.

C. C Wright, J. B. Sheean, and Frank T. Ransom, for relator.

John C Wharton, Wharton & Baird, J. J. Boucher, and Greene & Breckenridge, contra.

RYAN, C. SULLIVAN, J., concurring. NORVAL, J., dissenting.

OPINION

See opinions for references to authorities.

RYAN C.

In this case there has already been a description and discussion of the issues, which thereby were greatly simplified. ( State v. Moores, 52 Neb. 770, 73 N.W. 299.) There has now been a trial of these issues to a referee, who has reported his findings of fact and conclusions of law in accordance with the requirements of the order under which he was appointed.

Before discussing the exceptions and objections to these findings, we shall consider a question argued very strenuously and one which, not having then arisen, could not be discussed in the former opinion, and that is the right of respondent, upon demand, to a trial of the issues by a jury. The writ of quo warranto seems first to have been used in the year 1198 against the incumbent of a church to require him to show quo warranto he held the church. It was used for the purposes of extortion by the sovereigns of England until its scope was limited and its abuse checked by statute. The first of these statutes was known as the "Statute of Gloucester," from the place where parliament then sat. By its provisions there was an opportunity given the party affected to be heard at the coming of the king, or his justices in eyre. The defendant was still liable, however, to be summoned by a general proclamation at the hands of the sheriff, without any complaint or charge being tendered, and there were frequent delays in pronouncing judgment. To remedy these grievances there was passed the statute of 18 Edward I., in the year 1290, whereby pleas of quo warranto were required to be determined in the circuits of the justices. Probably writs of quo warranto fell into disuse about the sixteenth year of Richard II. The substitution therefor of the information in the nature of a quo warranto was attributed by Blackstone to the length of the process upon the proceeding in quo warranto, as well as to the fact that the judgment rendered was final and conclusive, even against the crown. The original writ of quo warranto was strictly a civil remedy, prosecuted at the suit of the king by his attorney general, and, in case of judgment for the king, the franchise was either seized into his hands, if of such a nature as to subsist in the crown, or a mere judgment of ouster was entered for the ejection of the usurper. There was no fine or other like punishment. The information was originally regarded as a criminal proceeding in which the usurpation of the office or franchise was charged as a criminal offense, and the offender was liable, upon conviction, to a fine and imprisonment in addition to the loss of the usurped franchise. In speaking of an information in the nature of quo warranto in Ames v. Kansas, 111 U.S. 449, 28 L.Ed. 482, 4 S.Ct. 437, Waite, C. J., said: "Long before our revolution, however, it lost its character as a criminal proceeding in everything except form, and was 'applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only' (3 Bl. Com. 263; King v. Francis, 2 Term. R. [Eng.] 484; Bacon, Abridgment, Title, Information d.; 2 Kyd Corporations 439); and such, without any special legislation to that effect, has always been its character in many of the states of the Union. (Commonwealth v. Browne, 1 S. & R. [Pa.] 385; People v. Richardson, 4 Cow. [N.Y.] 102, note; State v. Hardie, 1 Ired. Law 42, 48; State Bank v. State, 1 Blackf. [Ind.] 267, 272; State v. Lingo, 26 Mo. 496, 498.) In some of the states, however, it has been treated as criminal in form, and matters of pleading and jurisdiction governed accordingly. Such is the rule in New York, Wisconsin, New Jersey, Arkansas, and Illinois, but in all these states it is used as a civil remedy only. (Attorney General v. Utica Ins. Co., 2 Johns. Ch. [N.Y.] 370, 377; People v. Jones, 18 Wend. [N.Y.] 601; State v. West W. R. Co., 34 Wis. 197, 213; State v. Ashley, 1 Ark. 279; State v. Roe, 2 Dutch. [N.J.] 215, 217.)" A review of some of the cases in which the information in the nature of quo warranto is treated as in its nature a criminal proceeding is not without a certain value, for thereby it will be seen that, while the remedy is deemed a civil remedy, yet that, with the idea of an information there is associated such a leaning toward the analogies of criminal procedure that the holdings of these courts with reference to the right of trial by jury should be accepted with caution.

In Donnelly v. People, 11 Ill. 552, Caton, J., in the delivery of the opinion of the court with reference to the degree of precision requisite in indictments and informations, said: "The same certainty and technical precision are required in both, and the principal, if not the only, difference between them is, that an indictment is presented by the grand jury on their oaths while in informations in the nature of a quo warranto the court is informed of the facts by the state's attorney. In treating of these informations Sergeant Hawkins says: 'An information differs from an indictment in little more than this: that the one is found by the oath of twelve men, and the other is not so found, but is only the allegation of the officer who exhibits it. Whatsoever certainty is requisite in an indictment, the same, at least, is necessary, also, in an information, and consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital.' (2 Hawkins P. C. p. 369, ch. 26, sec. 4.)" In line with the above quoted language the supreme court of Illinois held that the omission of the words, "In the name and by the authority of the people of the state of Illinois," and "Against the peace and dignity of the same," was fatal to the information. The same ruling was made in Wight v. People, 15 Ill. 417; and in Hay v. People, 59 Ill. 94. As these three cases were cited in Attorney General v. Sullivan, 163 Mass. 446, 40 N.E. 843, hereafter to be considered, it will be well to remember the technical nicety which governs them.

In State v. Davis, 57 N.J.L. 203, 31 A. 218, Beasley, C. J., in the delivery of the opinion of the supreme court commenting upon the unjustifiable defense urged by the defendants, said: "It is not proper for this court to pass such a wrong as this without rebuke, and it is therefore ordered that judgment be entered that due process of law issue to remove these defendants from the offices into which they have intruded, and also that a fine of $ 200 be laid on each of said defendants for their malfeasance."

In People v. Havird, 2 Idaho 531, there was under consideration the constitutionality of an act passed by the legislature of that territory in which was embodied a provision with reference to quo warranto, that: "Such action shall be heard and determined by the judge of the district court at chambers, and without the intervention of a jury, after due service of the summons and the expiration of time allowed by law for answering the complaint in a civil action; but no judgment shall be rendered in such action by default." In the discussion of this law there was the following language; "This law not only provides for supervision of elections and the correction of errors, but it goes further and places in the court unmistakable judicial powers. Section 541 provides 'that when a defendant against whom such action has been brought is adjudged guilty of usurping or intruding into, or unlawfully holding, any office, franchise, or privilege, judgment must be rendered that the defendant be excluded from the office, franchise, or privilege, and that he pay the costs of the action. The court or judge may also in its or his discretion, impose upon the defendant a fine not exceeding two thousand dollars.' Here are questions not merely as to the regularity of an election but also to the personal guilt or innocence followed by pecuniary consequences of no small moment. It aims not only at a civil remedy, but also at a criminal trial, personal punishment, and pecuniary fine and loss. The act of willful intrusion into a public office, to which one has not been elected, is declared to be a misdemeanor. (Revised Statutes Ida., sec. 6388.)" The principal matter discussed under these conditions of the statute was the denial of the right of trial by jury and the act was declared unconstitutional, probably for the most part, because of that denial.

The above references sufficiently illustrate the decided leaning of certain courts towards the practice ordinarily followed in the prosecution of criminals, and the danger that this bias may have influenced judgment as to the right of trial by jury. While some courts which incline towards the analogies afforded by the Code of...