Commonwealth v. Birchett

2 Va. 51

Opinion

On a motion made by the Attorney for the Commonwealth, before tne Superior Court of Mecklenburg, on the 29th April, 1816, (which motion was founded on an affidavit of Joel Watkins, setting forth, that the Defendant was commissioned as a Justice of Peace on the 29th May, 1809, and that after qualifying under that Commission, he was appointed and commissioned a Deputy Post Master under the Government of the United States, and accepted and held the said latter office,) it was ordered, that the Defendant be summoned to shew cause why an Information, in the nature of a Writ of Quo War-ranto, should not be exhibited against him, for using and exercising, without any legal warrant or authority, the Office of a Justice of the Peace for the county of Mecklenburg. Upon the return of the Rule, the Defendant appeared, and shewed for cause, that he had not exercised, or claimed to exercise, the office of a Justice of the Peace in said county, at any time since the 23d November, 1814, and claimed the benefit of the second section of the Act of Assembly, entitled “An Act to amend the Penal Laws of this Commonwealth,” passed 29th January, 1805.

Footnotes

•

(a) That Act is in these words : “ All Actions, Suits, Bills, Indictments, or Informations, which shall be had, brought, sued, or exhibited, upon any Penal Law, where the punishment to be inflicted on the offender, on conviction, shall neither be death, nor imprisonment in the Jail and Penitentiary-house, shall be had, brought, sued, exhibited or moved, within one year next after the offence committed, and not after, except where a longer or shorter time for the commencement of such Suit or Prosecution, is or shall be fixed by law.”

The Court doubting whether the Prosecution in this Case is barred by the said Act, adjourned the question to this Court. *The only question in the Case was. whether an Information in the nature of a Writ of Quo Warranto, was an Action, Suit, Bill, Indictment or Information, founded upon “ any Penal Law.” If it was, then the above Act would afford a bar to the Prosecution ; if not, then the Act is no bar.

It was argued by the Counsel for the Defendant, that this is a Criminal proceeding. In form, it is certainly so. In substance, also, it is a Criminal proceeding, where the Office is a public one ; for, what is the effect of the judgment, where the Defend-ent is in possession of it ? Certainly it is equivalent to amotion from Office ; and the decision of this Court, in The Commonwealth v. Alexander, (b) proves that amotion from Office is a punishment. In that Case, the Magistrate was amoved from Office by the judgment of the Court, on a strictly Criminal proceeding. They also contended, that it was deemed in England a Civil proceeding in substance, only since the Statute of 9th Anne, ch. 20, which has never been in force in Virginia.

On the other hand, it was argued, that this proceeding, though in form of a Criminal nature, yet in substance was not so; for, according to the authority of Blackstone, (c) it has been long applied to the mere purpose of trying the Civil right: that it was so applied before the enactment of the Statute of Anne : That there is an essential difference between the holding an Office without legal authority, and the commission of some Criminal act which produces a forfeiture of the Office. This was Alexander’s Case : he was charged with drunkenness in the discharge of the duties of his Office : he was proceeded against criminally by Indictment : he was fined fifty dollars ; and it was further adjudged that he had forfeited his office. But, where no crime is alleged against the Officer, as in this case, and it is only alleged that he cannot legally hold the Office, because, by his acceptance of a Federal Commission, he has vacated his State Office, (d) a judgment against him, that he has no right to the Office, is no punishment inflicted on him, but is a mere decision of the Civil right. For the trial of this question, an Indictment or Information will not lie ; but an Information in the nature of a Writ of Quo Warranto, is the *only remedy now known to our Law: a remedy only criminal in form, for the fine is merely nominal.

The Court rendered the following judgment

“ The Court having inspected the Record, heard the arguments of Counsel, and duly considered the same, doth, by the unanimous opinion of the Judges present, decide, that the cause shewn by the said William Birchett, is not sufficient to prevent the filing of the Information.”

2 Rev. Code of 1808, ch. 55. § 3, p. 80 ; 1 Rev. Code of 1819, ch. 169, § 60, p. 614.

•

1 Virginia Cases, 156.

•

3 Black. Com. 363 ; 4 Black. Com. 313.

•

1 Rev. Code of 1793, ch. 36, 351 ; 1 Rev. Code of 1819, ch. 27.