Park, C. J.
The procedure in this case is an information in the nature of a writ of quo warranto, demanding of the defendant by what warrant he assumes to act as mayor of the city of New Haven; and alleging that, at the last city election, he, the relator, was duly elected to that office by a plurality of the votes cast' for mayor. The defendant made return to the writ, setting forth his right and title to the office of mayor by proceedings had before a judge of the Superior Court, under the act of 1878 in relation to elections ; and further representing that the judge found, and so declared, that a mistake was made in the counting of votes for mayor in the third ward of the city — that a package of eighty-one votes in that ward was counted twice for the relator, which gave him a nominal plurality of the votes cast at the election, and that a correction of the mistake gave the defendant a plurality of such votes; and that the judge so declared, and gave the defendant a certificate to that effect.
The relator replied to the return by way of confession and avoidance, setting forth that mistakes were made in the count of votes for mayor in all the other wards of the city as well as in the third ward, but made no allegation in whose favor the mistakes were made, although he alleged generally that the relator was duly elected mayor by a large plurality of the votes cast at the election.
The defendant demurred to the replication; the Supe[123]*123rior Court sustained the demurrer, and adjudged the replication insufficient; and the case comes here for a review of that decision.
In the first place the relator makes complaint that the judge, who recounted the votes in the third ward of the city and corrected the mistake made therein, should have done the same in all the other wards, in order to ascertain who was elected mayor in fact, notwithstanding the petition confined the petitioner’s inquiry to the mistake made in the third ward. The statute under which the judge proceeded to recount the votes in the third ward is as follows, so far as it is applicable to the present inquiry: — “Any person claiming to have been elected ® * mayor * ® of any city, but not so declared, may, within sixty days after the time of holding the election, bring his petition to any judge of the Superior Court, alleging the facts on which such claim is founded, which shall be served on the party against whom the claim is made at least six days before the return day, and returnable not more than sixty-three days after the day of such election, and such judge shall thereupon hear and determine such petition, and his decision thereon shall be conclusive, and if in favor of the petitioner, his certificate to that effect, under the seal of the court, shall entitle the petitioner to hold and exercise the duties and powers of such office.”
Under this statute a petitioner must allege the facts on which his claim to have been elected is based, and he must prove those allegations by preponderance of evidence as in all other eases. If he claims that mistakes had been made in the counting of votes in some particular ward or wards of the city, the correction of which would change the result, he must make out a primé facie case that such mistakes had been made before a recount of the votes in such ward or wards can be made. In such cases it will be presumed that the counting of votes in all the other wards of the city was correct, until the contrary appears. The respondent majr lay the foundation by his answer and evidence for a recount of the votes in such other wards, if [124]*124mistakes to Ms prejudice therein had been made. These principles will be found to be fully sustained by McCrary in his work on Elections.
The petition before the judge of the Superior Court asks only for a recount of the votes cast for mayor in the third ward of the city. The respondent, fearing the result of a recount of the votes in the other wards, laid no foundation for such recount and made no claim that it should be made. The return of the votes cast for may or in these other wards was therefore taken by the judge to be correct, and the case was decided accordingly. It would be unreasonable that a judge should be required to count all the votes of all the wards of a populous city, when no claim was made by either party that there were any mistakes to his prejudice in any of the wards but one. We think this claim is unfounded.
• Again, the defendant insists that the allegations in the replication of the relator, that ■ mistakes were made in the counting and returning of the votes for mayor in all the wards of the city, without stating that they resulted to his prejudice, or to the defendant’s benefit, are clearly insufficient. It is manifest that this must be so. We may suppose that all those mistakes increased the nominal vote of the relator, and the supposition will not be inconsistent with the allegations. They are therefore clearly insufficient.
But it is said that there js a general allegation that the relator “ received a plurality of the votes cast at the election.” But this is a mere conclusion or inference from the preceding allegations of fact. If those allegations are insufficient to support such conclusion, then the conclusion is insufficient. Gould’s Pleading, ch. 9, sec. 29; Stephen on Pleading, 142, note.
It is further said that it is competent for the prosecutor, representing the sovereignty of the state, to bring the defendant into court, and demand of him by what warrant he claims to be mayor, upon an allegation no more specific than the general one, that the relator received a plurality of the votes cast at the election for mayor. This may be true; but when the defendant, in obedience to the writ, comes [125]*125into court, and in his return puts his title to the office on record, the prosecutor must answer the return.' He may demur to it as being insufficient; he may deny the facts therein stated; or he may admit the facts, and by way of confession and avoidance set up other facts. But the facts thus set up must be issuable facts. The prosecutor cannot at this stage -of the proceeding attack the defendant’s return by a repetition of the allegations of his original writ, that the relator had1 a plurality of votes. He must state facts which show that he had such votes, which he has failed to do in his- replication. McCrary on Elections, secs. 280, 281, .283. We think therefore that the allegations of the replication do not sustain the averment that the relator was elected mayor of the city.
Again, we think the replication must be held insufficient for the reason that this information in the nature of a writ of quo warranto will not lie to oust the defendant -from the official position which he holds, under the finding and certificate of the judge of the Superior Court, by virtue of the statute of 1878. That statute provides that “such judge shall thereupon hear and determine said petition, and his decision thereon shall be conclusive.” If this statute is constitutional there can .be no necessity for further consideration of the subject.
But the relator claims that the act is • unconstitutional, inasmuch as it deprives him of the right to a jury trial to test his claim to the office of mayor; and here,. perhaps, arises the most important question in the case.
It will be observed that the statute does not. interfere in any manner with the rights and remedies of any claimant to any office recognized by the constitution.
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Park, C. J.
The procedure in this case is an information in the nature of a writ of quo warranto, demanding of the defendant by what warrant he assumes to act as mayor of the city of New Haven; and alleging that, at the last city election, he, the relator, was duly elected to that office by a plurality of the votes cast' for mayor. The defendant made return to the writ, setting forth his right and title to the office of mayor by proceedings had before a judge of the Superior Court, under the act of 1878 in relation to elections ; and further representing that the judge found, and so declared, that a mistake was made in the counting of votes for mayor in the third ward of the city — that a package of eighty-one votes in that ward was counted twice for the relator, which gave him a nominal plurality of the votes cast at the election, and that a correction of the mistake gave the defendant a plurality of such votes; and that the judge so declared, and gave the defendant a certificate to that effect.
The relator replied to the return by way of confession and avoidance, setting forth that mistakes were made in the count of votes for mayor in all the other wards of the city as well as in the third ward, but made no allegation in whose favor the mistakes were made, although he alleged generally that the relator was duly elected mayor by a large plurality of the votes cast at the election.
The defendant demurred to the replication; the Supe[123]*123rior Court sustained the demurrer, and adjudged the replication insufficient; and the case comes here for a review of that decision.
In the first place the relator makes complaint that the judge, who recounted the votes in the third ward of the city and corrected the mistake made therein, should have done the same in all the other wards, in order to ascertain who was elected mayor in fact, notwithstanding the petition confined the petitioner’s inquiry to the mistake made in the third ward. The statute under which the judge proceeded to recount the votes in the third ward is as follows, so far as it is applicable to the present inquiry: — “Any person claiming to have been elected ® * mayor * ® of any city, but not so declared, may, within sixty days after the time of holding the election, bring his petition to any judge of the Superior Court, alleging the facts on which such claim is founded, which shall be served on the party against whom the claim is made at least six days before the return day, and returnable not more than sixty-three days after the day of such election, and such judge shall thereupon hear and determine such petition, and his decision thereon shall be conclusive, and if in favor of the petitioner, his certificate to that effect, under the seal of the court, shall entitle the petitioner to hold and exercise the duties and powers of such office.”
Under this statute a petitioner must allege the facts on which his claim to have been elected is based, and he must prove those allegations by preponderance of evidence as in all other eases. If he claims that mistakes had been made in the counting of votes in some particular ward or wards of the city, the correction of which would change the result, he must make out a primé facie case that such mistakes had been made before a recount of the votes in such ward or wards can be made. In such cases it will be presumed that the counting of votes in all the other wards of the city was correct, until the contrary appears. The respondent majr lay the foundation by his answer and evidence for a recount of the votes in such other wards, if [124]*124mistakes to Ms prejudice therein had been made. These principles will be found to be fully sustained by McCrary in his work on Elections.
The petition before the judge of the Superior Court asks only for a recount of the votes cast for mayor in the third ward of the city. The respondent, fearing the result of a recount of the votes in the other wards, laid no foundation for such recount and made no claim that it should be made. The return of the votes cast for may or in these other wards was therefore taken by the judge to be correct, and the case was decided accordingly. It would be unreasonable that a judge should be required to count all the votes of all the wards of a populous city, when no claim was made by either party that there were any mistakes to his prejudice in any of the wards but one. We think this claim is unfounded.
• Again, the defendant insists that the allegations in the replication of the relator, that ■ mistakes were made in the counting and returning of the votes for mayor in all the wards of the city, without stating that they resulted to his prejudice, or to the defendant’s benefit, are clearly insufficient. It is manifest that this must be so. We may suppose that all those mistakes increased the nominal vote of the relator, and the supposition will not be inconsistent with the allegations. They are therefore clearly insufficient.
But it is said that there js a general allegation that the relator “ received a plurality of the votes cast at the election.” But this is a mere conclusion or inference from the preceding allegations of fact. If those allegations are insufficient to support such conclusion, then the conclusion is insufficient. Gould’s Pleading, ch. 9, sec. 29; Stephen on Pleading, 142, note.
It is further said that it is competent for the prosecutor, representing the sovereignty of the state, to bring the defendant into court, and demand of him by what warrant he claims to be mayor, upon an allegation no more specific than the general one, that the relator received a plurality of the votes cast at the election for mayor. This may be true; but when the defendant, in obedience to the writ, comes [125]*125into court, and in his return puts his title to the office on record, the prosecutor must answer the return.' He may demur to it as being insufficient; he may deny the facts therein stated; or he may admit the facts, and by way of confession and avoidance set up other facts. But the facts thus set up must be issuable facts. The prosecutor cannot at this stage -of the proceeding attack the defendant’s return by a repetition of the allegations of his original writ, that the relator had1 a plurality of votes. He must state facts which show that he had such votes, which he has failed to do in his- replication. McCrary on Elections, secs. 280, 281, .283. We think therefore that the allegations of the replication do not sustain the averment that the relator was elected mayor of the city.
Again, we think the replication must be held insufficient for the reason that this information in the nature of a writ of quo warranto will not lie to oust the defendant -from the official position which he holds, under the finding and certificate of the judge of the Superior Court, by virtue of the statute of 1878. That statute provides that “such judge shall thereupon hear and determine said petition, and his decision thereon shall be conclusive.” If this statute is constitutional there can .be no necessity for further consideration of the subject.
But the relator claims that the act is • unconstitutional, inasmuch as it deprives him of the right to a jury trial to test his claim to the office of mayor; and here,. perhaps, arises the most important question in the case.
It will be observed that the statute does not. interfere in any manner with the rights and remedies of any claimant to any office recognized by the constitution. How the case would be if it did; it is unnecessary now to consider; and Ave shall therefore confine our attention solely to the question we have in hand.
The municipal corporation of the city of New Haven is unknown to the constitution. It was created by the legislature, and its municipal officers exist only as creatures of the legislature. Their'official existence may at any time be [126]*126ended by a repeal of the charter creating the offices. State ex rel. Birdsey v. Baldwin, 45 Conn., 134.
Suppose the charter of the city had contained the provision of the act of 1878 in relation to contested elections for the office of mayor, could it be said that the provision was unconstitutional because it did not provide for a jury trial ? If so, then it would be out of the power of the legislature to settle by enactment any controversy for any office in a city or town without providing a jury trial; which seems absurd.
Judge Dillon, in his treatise on Municipal Corporations, seems to be of the opinion that it is in the power of the legislature to provide in all cases how contested elections shall be.determined. In § 200 he says, — “Since elections to offices are not in the nature of contracts, there does not seem to be any substantial reason, in view of the plenary authority of the legislature over offices and officers, to doubt its power to provide, prospectively by a general act, the mode in which contests shall be determined.” If this may be said in states where all the authority of the legislature comes from their constitutions, with more force and. greater emphasis may it be said where, as in this state, the power of the legislature is limited only by the constitution and it is silent on the subject. We think it is clear that the legislative department of the government of this state may appoint a tribunal vested with exclusive power to hear and determine questions of contested elections, without a trial by jury, when such contests originate between claimants to an office under a municipal corporation which the legislature alone has created. In the case of Selleck v. Common Council of South Norwalk, 40 Conn., 359, the legislature had enacted by way of an amendment to the charter of the city, that the board of coun oilmen shall be the final judges of the election returns and qualifications of its members. The question was, whether the amendment applied to an election which had been had when the amendment came in force. The court say: — “The statute in question was clearly intended to apply to cases of this kind. It makes the common council of the city the final judges of the election [127]*127returns and qualifications of its members. By the use of the word ‘final’ the legislature intended to divest the Superior Court of jurisdiction in such eases, and to make the common council the sole tribunal to determine the legality of .the election of its members.” No suggestion was made, either by court or counsel, that the amendment was unconstitutional because it deprived the petitioner of the right of a trial by jury.
But it is said that the controversy for the office of mayor before the judge of the Superior Court was a controversy between the relator and the defendant as individuals; and inasmuch as the office of mayor is a public office, the public have an interest in the controversy of which they cannot be deprived; and that as the statute in question makes no provision for the joinder of the public as a party to the proceeding, the decision of the court cannot be final;. that it cannot deprive the public of the right to be heard by the writ of quo warranto or by a prosecution in the nature of such a writ.
The writ of quo warranto is a prerogative writ. It had its origin in England in efforts made by the sovereign to regain rights and franchises that he or his ancesters had parted with. The sovereign is the prosecutor, and to this day must be a party plaintiff in every such proceeding. In this country the state is the sovereign, and must be a party through its attorney. But the legislature, in whom all sovereign power is vested, limited only by the constitution, whereby it represents the sovereign, enacted this statute, which declares that the decision of the tribunal therein established shall be conclusive. The state, therefore, has voluntarily parted with the right to be heard by the writ of quo warranto or by a prosecution in the nature of such a writ. We think this claim is likewise untenable.
In conclusion we say, in the language of the court in the case of the Hartford Bridge Co. v. Union Ferry Co., 29 Conn., 210, — “ It is a well settled principle of judicial construction, that before an act of the legislature ought to be declared unconstitutional, its repugnance to the provisions [128]*128or necessary implications of the constitution should be manifest and free from all reasonable doubt. If its character in this regard be questionable, then comity and a proper respect for a co-ordinate branch of the government should determine the matter in favor of the action of the latter.”
There is no error in the judgment appealed from.
In this opinion the other judges concurred; except Granger, J., who dissented.