view taken in Ohio and Missouri, under constitutional provisions substantially similar. State v. Marlow, 15 Ohio St. 114; State v. Francis, supra. But, with all due respect to those able courts, we believe it rests upon sounder principles of law, as well as wiser considerations of public policy. Surely, doubts, if they exist, should be resolved in favor of this jurisdiction by the courts. It is a matter of the greatest public importance whether ineligible or disqualified persons, or persons who by election frauds have secured an apparent majority of the votes, shall be permitted to usurp and hold public offices. Except upon legislation, constitutional or statutory, so clear as to be irresistible, the voice of the people in this matter should not be silenced. 3. The declaration in section 8, article 7, of the constitution, that the ballots may be examined in contested elections, does not limit this examination to such proceedings. The right mentioned has always been freely exercised in quo warranto, which is the common-law method of inquiring into election frauds. And the purpose of this provision was to give, in the election contests authorized by section 12 of the same article, already considered, the privilege of inspecting and comparing ballots; not to withdraw it from the proceeding in which theretofore it had been universally exercised. The leading object of said section 8 was to preserve the purity of the ballot by insuring its secrecy; but, lest the language indicating this intent should be carried too far, and become the means of perpetrating fraud, the privilege in question was carefully extended to election contests, in which, perhaps, it might otherwise have been challenged. 4. Chapter 27, Code of Civil Procedure (Laws 1887, p. 182), is a substitute for the original common-law quo warranto remedy. It prescribed an enlarged proceeding, substantially by information in the nature of quo warranto, and furnishes the exclusive method, so far as district courts are concerned, for investigating usurpations of office. The district attorney having refused to act in the present case, relator was expressly authorized by this statute to institute the proceeding. Being a "freeholder, resident and elector" within the city of Denver, relator's capacity to proceed in the name of the people cannot be challenged on the ground of insufficiency of interest. The fact that he was the opposing candidate, and claims to have received a majority of the votes legally cast, does not work his disqualification. It may be that he is more in terested in vindicating his alleged private right than he is in redressing the supposed public wrong. But this fact, if it be a fact, does not justify our refusal to investigate in this case the alleged usurpation, and render such judgment as the law permits and the public welfare requires. A certain degree of interest on the part of relators in quo warranto proceedings is generally deemed requisite; and the officious intermeddling by parties having absolutely no interest, either as taxpayers or voters, is disfavored. The foregoing views harmonize in the main with those expressed by the two opinions in Darrow v. People, supra. It will be observed by reference to those opinions that the specific object under section 12, article 7, of the constitution, last above noticed, was not then considered. In so far, however, as the language there employed would seem to recognize the right of a contesting claimant to ignore the constitutional, statutory, election-contest remedy, and have his personal claims to office adjudicated in the proceeding by information, it is qualified in accordance with the conclusion above stated. The demurrer should have been overruled, and the judgment is accordingly reversed. Reversed. Other instances in this collection of the use of the quo warranto or its statutory substitute to try title to office in election contests are Boyd v. Mills, 53 Kan. 594; People v. Van Cleve, 1 Mich. 362; People v. Clute, 50 N. Y. 451; State v. Taylor, 108 N. C. 196; Smith v. Moore, 90 Ind. 294, supra. STATE EX REL. CLEMENTS V. HUMPHRIES. Supreme Court of Texas. 1889. 74 Tex. 466. Appeal from Mills. Tried before Hon. W. A. Blackburn. The opinion states the case. GAINES, Associate Justice. This was an information in the nature of a quo warranto filed in the name of the state upon the relation of P. H. Clements, for the purpose of ousting the appellee from the office of the clerk of the county court of Mills County. Does the fact that the respondent held out a promise to the voters of the county to serve in case of election for a less compensation than the lawful fees of the office disqualify him for holding it! Section 1 of article 16 of our Constitution requires every officer before he enters upon the duties of his office to take an oath or affirmation which embraces the following language: "And I furthermore solemnly swear (or affirm) that I have not directly nor indirectly paid, offered, or promised to pay, contributed nor promised to contribute any money or valuable thing, or promised any office or employment as a reward for the giving or withholding a vote at the election at which I was elected." It may be that an offer by a candidate for county clerk to remit in case of his election his fees for ex officio services should be deemed an offer to contribute to each taxpayer his proportion of the taxes necessary to raise the sum so remitted. In Caruthers v. Russell, 53 Ia. 346 (S. C., 36 Am. Rep. 222), the Supreme Court of Iowa held such a promise virtually an offer to bribe the voters, and it seems to be within the spirit if not the letter of the constitutional provision above quoted. But it does not follow that in the absence of some other constitutional or statutory provision that a candidate who has made such promise and has received the highest number of votes and has taken the required oath can be removed from office by the mere proof of the fact in the proceeding in which he is sought to be ousted. The case of The Commonwealth v. Jans, 10 Bush 725, is an authority bearing upon the question. The constitution of Kentucky requires every person before accepting office to take an oath that he has not fought a duel or sent or accepted a challenge to fight a duel. In this respect the oath is practically the same as is required by our consitution. Like ours that constitution also contained the further provision which declared that any one who had fought a duel or sent or accepted a challenge should be disqualified from holding office. In the case cited it was held that a party who had been elected to an office and who had qualified by taking the prescribed oath could not be deprived of his office until he had been legally convicted of the offense of having sent a challenge in a proper criminal proceeding upon an indictment charging him with that offense. From the rule so established it would follow that if section one of article 16 stood as the only provision upon this subject, and if it should be construed to embrace within its terms the act complained of in this proceeding, the respondent could not be deprived of his office upon this ground until he had been lawfully indicted and convicted of the offense. But we need not go so far. The constitution has another provision upon this matter. Section 5 of the article already cited provides "that every person shall be disqualified from holding any office of profit or trust in this state who shall be convicted of having given or offered a bribe to procure his election or appointment. If, therefore, it should be held that the act of the respondent was within the meaning of the law an offer to bribe voters, it follows from the section quoted that he could not be deprived of the office until he had been convicted of the offense in a court of competent jurisdiction in a proceeding instituted and prosecuted according to the provisions of our Code of Criminal Procedure. We conclude that our constitution does not warrant the removal of the respondent from office for the act charged against him in a proceeding of this character before a legal conviction of the of fense. We are constrained, therefore, to hold that neither under our constitution nor by the common law can the respondent be deprived of the office he holds under the allegations and proof made in this case. There is no error in the judgment and it is affirmed. Affirmed. Instances in this collection of the use of the quo warranto or its statutory substitute to oust one from office on the allegation that he is disqualified or otherwise ineligible, or improperly appointed, are Bradley v. Clark, 133 Cal. 196; Attorney General v. Marston, 66 N. H. 485; De Turk v. Commonwealth, 129 Pa. St. 151; Gray v. Seitz, 162 Ind. 1; Fritts v. Kuhl, 51 N. J. L. 191; People v. Ward, 107 Cal. 236; Reiter v. State, 51 Ohio St. 74; People v. Murray, 70 N. Y. 521, supra. Quo warranto is also used to oust one holding over improperly as e. g. after having been removed or suspended, or after expiration of term, see Attorney General v. Jochim, 99 Mich. 358; State v. Bulkley, 61 Conn. 287; State v. Chatburn, 63 Iowa 659; State v. Kennedy, 75 Conn. 704; State v. Hillyer, 2 Kan. 17; State v. Megaarden, 85 Minn. 41, supra. An instance of a criminal action to punish usurpation is Kreidler v. State, 24 Ohio St. 22, supra. See also on the general subject of the quo warranto Field v. People, 3 Ill. 79; Dullam v. Willson, 53 Mich. 392; Attorney General v. Oakman, 126 Mich. 717; Commonwealth v. Waller, 145 Pa. St. 235; Commonwealth v. Moir, 199 Pa. St. 534. Quo warranto may be issued to one claiming the right to exercise the office of governor, State v. Bulkley, 61 Conn. 287, supra. CHAPTER XV. THE HABEAS CORPUS. 1. PHYSICAL Restraint. WALES V. WHITNEY. Supreme Court of the United States. October, 1884. Mr. Justice MILLER delivered the opinion of the court. This is an appeal from the judgment of the Supreme Court of the District of Columbia, which refused to make an order on a writ of habeas corpus relieving the appellant from the custody of the appellee, who, it is alleged, held the appellant in restraint of his liberty unlawfully. sets out an order of the Secre The original petition tary of the Navy, under which this restraint is exercised, which order is in the following terms: "Washington, February 28th, 1885. "Sir: Transmitted herewith you will receive charges, with specifications, preferred against you by the department. A general court-martial has been ordered to convene in rooms numbered 32 and 33, at the Navy Department, at Washington, D. C., at 12 o'clock noon, on Monday, the 9th proximo, at which time and place you will appear and report yourself to Rear Admiral Edward Simpson, United States Navy, the presiding officer of the court, for trial. The Judge Advocate will summon such witnesses as you may require for your defense. You are hereby placed under arrest, and you will confine yourself to the limits of the city of Washington. |