SAFFOLD, J.
Application was made by the Attorney General, at the last term of this Court, for leave to fde a writ of quo warranto against the defendant, who was, and still is in the exercise of the duties of judge of the Circuit Courts of the eighth [44]*44judicial circuit. The object of the proceeding is to try the constitutionality of his appointment.
The application is founded on representations, in substance, as follow: That the defendant was a member of the house of representatives, during the session of the general assembly, at which the act passed, entitled “ an act to alter and establish the judicial circuits of this State”' — • approved on the 11th day of January, 1833; and by which, said eighth circuit was created or established. That, at the same session, and during the term for which he had been elected to the legislature, as aforesaid, he was elected by a joint-vote of the general assembly, to fill said office; which, having been done under the circumstances aforesaid, was unconstitutional and void.— That he was ineligible to said office, under that provision of the constitution of the State, which declares, that no senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office of profit, under this State, which shall have been created, or the emoluments of which shall have been increased, during such term; except such offices as may be filled by elections by the people.” That, notwithstanding his disqualification as aforesaid, he became a candidate, was elected and has entered on the duties of judge, aforesaid, regardless of said constitutional disqualification.
Upon this application the Court then granted a a rule on the defendant, requiring him to shew cause, why the said writ of quo warranto should not issue, for the cause aforesaid.
Having received notice, the defendant appears, by Counsel, and contests the issuance of the writ.-— [45]*45Though the question now presented, is preliminary to that which would arise on a hearing of the writ of quo warranto, or an information,'in the nature thereof, it is one, involving the merits of the case. The granting the writ would indicate the opinion, (supposing the facts truly stated,) that the interposition of the judiciary is demanded, in defence of the constitution. A denied of it would exempt the defendant from further molestation from this source.
The case has been argued hy the counsel on each side, with ¡zeal and ability, equal to the importance of the occasion. The points embraced by the argument, and authorities referred to, so far as necessary to be noticed, according to the views we have taken of the case, may be resolved into the following:
1. Is the writ of quo warranto the appropriate remedy, to test the right of an incumbent to the office he is exercising 1
2. Has this Court jurisdiction to award the writ, for such a purpose 1
The constitution of the State, (Art. 5, § 2,) provides that, “ the Supreme Court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which shall he co-extensive with the State, under such restrictions and regulations, not repugnant to this constitution, as may, from time to time, he prescribed by law : provided, that the Supreme Court shall have power to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs, as may he necessary to give it a general superinten-dance and control of inferior jurisdictions.”
I consider it unnecessary to investigate the dis[46]*46tinction between, a writ of quo warranto, and an information in the nature thereof. It was not urged in argument; and under this rule the Court would be competent to grant the writ, in either form that the nature of the case might be found to require, should either appear proper. — Dew vs Judges of Sweet Springs.
On this point, it is sufficient to remark, that an information in the nature of a quo warranto, has, in modern practice, superseded in a great degree, the ancient writ, which, in its nature was a method of criminal prosecution, as well to punish the usurper, by a fine for the usurpation of the franchise, as to oust him from it. The information has subsequently been applied to the mere purpose of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only.b — The People vs Utica Insurance Company.c
rp]ie graating £]ie wrj£ was formerly considered a matter of right — consequently defendants were not expected to disclose the ground of their defence, on the motion made to obtain it; the more prudent course was not to do so: but, by a later mode of proceeding, now of long standing, the practice has been to let the granting this writ depend on the sound discretion of the Courts, according to the particular circumstances of the cases which may be brought before them. — The People vs Sweeting.d
Where the right to.the franchise is disputed, and turns on a point of new or doubtful law; or, where there is no other remedy for the violation of an individual right, it is usually granted.
That this writ has been sufficiently established, as [47]*47the proper remedy against one who has intruded into an office without competent authority, as well as in other cases of usurpation of a franchise, is clearly shewn, not only by a series of English cases, hut also by various American decisions.a It is true in many cases in England, in New-York, and other States of the Union, the remedy, by information, the nature of a quo warranto, has been regulated hy statute; but without such aid, it exists as an adequate remedy at common law, in various other cases. I, therefore, think, so far as it is proper for the judiciary to interfere in the present case, there is no objection to the form of the proceeding, as commenced.
2. On one branch of the inquiry arising on the second question, I decline the expression of any definite opinion. That is, whether or not this Court is autho-rised to exercise the original jurisdiction of granting ■the writ, in the first instance — supposing there be no other objection than that in relation to the jurisdiction'?
According to the view we have taken, that question is not necessarily involved in the present decision. It is sufficient to inquire, whether this Court is competent to revise, control and annul the appointment, even if it should be considered that the incumbent was ineligible to the office 1
The making this appointment, required the exercise of a portion of the sovereign power of the State. In the distribution of this power, the constitution declares, (Art, 2, §1,) that “ the powers of the government of the State of Alabama shall be divided into three distinct departments; and each of them confided to a separate body of magistracy, to wit: those [48]*48which are legislative, to one; those which are executive, to one; and those which are judicial, to another. (Sec.
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SAFFOLD, J.
Application was made by the Attorney General, at the last term of this Court, for leave to fde a writ of quo warranto against the defendant, who was, and still is in the exercise of the duties of judge of the Circuit Courts of the eighth [44]*44judicial circuit. The object of the proceeding is to try the constitutionality of his appointment.
The application is founded on representations, in substance, as follow: That the defendant was a member of the house of representatives, during the session of the general assembly, at which the act passed, entitled “ an act to alter and establish the judicial circuits of this State”' — • approved on the 11th day of January, 1833; and by which, said eighth circuit was created or established. That, at the same session, and during the term for which he had been elected to the legislature, as aforesaid, he was elected by a joint-vote of the general assembly, to fill said office; which, having been done under the circumstances aforesaid, was unconstitutional and void.— That he was ineligible to said office, under that provision of the constitution of the State, which declares, that no senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office of profit, under this State, which shall have been created, or the emoluments of which shall have been increased, during such term; except such offices as may be filled by elections by the people.” That, notwithstanding his disqualification as aforesaid, he became a candidate, was elected and has entered on the duties of judge, aforesaid, regardless of said constitutional disqualification.
Upon this application the Court then granted a a rule on the defendant, requiring him to shew cause, why the said writ of quo warranto should not issue, for the cause aforesaid.
Having received notice, the defendant appears, by Counsel, and contests the issuance of the writ.-— [45]*45Though the question now presented, is preliminary to that which would arise on a hearing of the writ of quo warranto, or an information,'in the nature thereof, it is one, involving the merits of the case. The granting the writ would indicate the opinion, (supposing the facts truly stated,) that the interposition of the judiciary is demanded, in defence of the constitution. A denied of it would exempt the defendant from further molestation from this source.
The case has been argued hy the counsel on each side, with ¡zeal and ability, equal to the importance of the occasion. The points embraced by the argument, and authorities referred to, so far as necessary to be noticed, according to the views we have taken of the case, may be resolved into the following:
1. Is the writ of quo warranto the appropriate remedy, to test the right of an incumbent to the office he is exercising 1
2. Has this Court jurisdiction to award the writ, for such a purpose 1
The constitution of the State, (Art. 5, § 2,) provides that, “ the Supreme Court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which shall he co-extensive with the State, under such restrictions and regulations, not repugnant to this constitution, as may, from time to time, he prescribed by law : provided, that the Supreme Court shall have power to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs, as may he necessary to give it a general superinten-dance and control of inferior jurisdictions.”
I consider it unnecessary to investigate the dis[46]*46tinction between, a writ of quo warranto, and an information in the nature thereof. It was not urged in argument; and under this rule the Court would be competent to grant the writ, in either form that the nature of the case might be found to require, should either appear proper. — Dew vs Judges of Sweet Springs.
On this point, it is sufficient to remark, that an information in the nature of a quo warranto, has, in modern practice, superseded in a great degree, the ancient writ, which, in its nature was a method of criminal prosecution, as well to punish the usurper, by a fine for the usurpation of the franchise, as to oust him from it. The information has subsequently been applied to the mere purpose of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only.b — The People vs Utica Insurance Company.c
rp]ie graating £]ie wrj£ was formerly considered a matter of right — consequently defendants were not expected to disclose the ground of their defence, on the motion made to obtain it; the more prudent course was not to do so: but, by a later mode of proceeding, now of long standing, the practice has been to let the granting this writ depend on the sound discretion of the Courts, according to the particular circumstances of the cases which may be brought before them. — The People vs Sweeting.d
Where the right to.the franchise is disputed, and turns on a point of new or doubtful law; or, where there is no other remedy for the violation of an individual right, it is usually granted.
That this writ has been sufficiently established, as [47]*47the proper remedy against one who has intruded into an office without competent authority, as well as in other cases of usurpation of a franchise, is clearly shewn, not only by a series of English cases, hut also by various American decisions.a It is true in many cases in England, in New-York, and other States of the Union, the remedy, by information, the nature of a quo warranto, has been regulated hy statute; but without such aid, it exists as an adequate remedy at common law, in various other cases. I, therefore, think, so far as it is proper for the judiciary to interfere in the present case, there is no objection to the form of the proceeding, as commenced.
2. On one branch of the inquiry arising on the second question, I decline the expression of any definite opinion. That is, whether or not this Court is autho-rised to exercise the original jurisdiction of granting ■the writ, in the first instance — supposing there be no other objection than that in relation to the jurisdiction'?
According to the view we have taken, that question is not necessarily involved in the present decision. It is sufficient to inquire, whether this Court is competent to revise, control and annul the appointment, even if it should be considered that the incumbent was ineligible to the office 1
The making this appointment, required the exercise of a portion of the sovereign power of the State. In the distribution of this power, the constitution declares, (Art, 2, §1,) that “ the powers of the government of the State of Alabama shall be divided into three distinct departments; and each of them confided to a separate body of magistracy, to wit: those [48]*48which are legislative, to one; those which are executive, to one; and those which are judicial, to another. (Sec. 2,) “ That no person, or collection of persons, being of one of these departments, shall exercise any power properly belonging to either of the others, except in the instances herein expressly directed or permitted.”
Again, it is said, (Art. 5, §12, that “ Chancellors; Judges of the Supreme Court, Judges of the Circuit Courts, and Judges of the Inferior Courts, shall be elected by joint-vote of both houses of the general assembly.” And it is also provided, (in the amendments of the constitution,) that the judges thus elected, shall hold their offices for the term, of six years.
Thus, it appears, that the constitutional power of conferring judicial appointments, is vested in the two houses of the general assembly, to be exercised by joint-vote : that, though it be, in its nature, an authority not purely legislative, yet it is a power and trust expressly confided to the legislative department of the government; and that each of the other distinct departments is prohibited from exercising any superintendence or control over it, within its constitutional sphere of action.
Admitting the true intent and proper construction of the constitution to be. that no other depártment-shall exercise or control the right of conferring such appointments ; and that there is no express restriction of the authority to adjudicate the eligibility of the incumbent — yet" it is worthy of consideration, if the restriction be not implied — if the delegation of the power to one of the co-ordinate departments, to confer the right does not include the authority to de-[49]*49cicle conclusively the Constitutionality of the appointment, including the eligibility of the candidate they may elect.
If the relative powers of the legislative and judicial departments, in reference to elections by the former, could be considered analogous to those in relation to statutes, I should feel no difficulty in maintaining the authority of the latter, to review and determine the constitutionality of elections, so made. — = But are the powers the same ill either case 7
With respect to statutes, courts of justice can not be neutral or passive — a conflict of rights arises between individuals or corporate bodies, competent to sue and be sued — one party claiming under the constitution, and the other under a statute — one or both must prevail, and they can not be reconciled; it is the province of the judiciary to construe, and administer the law: the consequence is, that the constitution, being the supreme law, it must prevail, in preference to the statute, and the latter become a dead or silent letter. This, however, is not the re-suit of any superiority in the judicial, over the legislative department. They remain co-ordinate — each acting independently within its respective sphere: the statute is not repealed, it remains in the code of laws; and, should the same, or a higher tri- ■ bunal, subsequently, determiné it to bé consistent With the constitution, it is subject to be enforced accordingly.
The judiciary has no direct delegation of power, to declare an act of the legislature unconstitutional and void — it is an incidental authority, Unavoidably [50]*50exercised, in administering the paramount law. This authority is common to the lowest and the highest judicial tribunals — to justices of the peace, as well as to the Supreme Court; yet the arrogance would be obvious, should the former attempt tq control legislative appointments, in any form or manner.
Were the Courts reduced to the necessity of passing on the constitutionality of any appointment by the legislature, their authority to decide according to their own judgment, could not be questioned, though they should differ from the co-ordinate department. This necessity might arise in the case of two appointments to the same office, or of one to an office which has no existence: and in other cases that might be supposed.' Such is the doctrine relative to appointments by the crown of England. In such case, the conflict of rights, or of authority, would demand an adjustment by judicial decision.
But the consideration which I view as a main objection to any interference by the judicial tribunals, in a case like the present, is, that each of the co-ordinate departments of the government, is required by the constitution, and genius of the government, to determine its own powers — each is bound by the obligation of an oath, to support the constitution, and is presumed competent to construe it correctly, in relation to its own action. The possibility that either may err in its construction, does not establish the necessity for an interference by another: infallibility is not attainable by either, and such intermedling would tend to destroy the harmony, which is essentially necessary between the departments.
A judicial decision, vacating the present appoint-[51]*51merit, would constitute a virtual requisition on a different department, to proceed to a re-appointment— this might he refused, a collision between the departments be created, a consequence of which would be to obstruct or deny the administration of common justice.
The fact that subordinate officers, and the members of all inferior jurisdictions, are required in like manner to support the constitution, does not secure to them the same independence that is incident to the co-ordinate departments of the government: their construction of the law, whether constitutional or statutory, and all their proceedings, are subject to the revision and correction of the superior judicial tribunals. The constitution of the State expressly autho-rises this Court, to issue all such “remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions” not co-ordinate departments. The exertion of the power here applied for, would be the exercise of a superintending and controlling authority over, not only the incumbent in office, but the appointing power.
In the case of Marbury vs Madison,a the Supreme Court held that a mandamus might issue against the Secretary of State of the United States, to enforce a delivery of a commission, or a copy thereof, where the appointment had been consummated by the President. But this authority was maintained on the principle, that the act to be done, was one affecting the absolute right of an individual, in the performance of which, the Secretary was not placed under the particular direction of the President, and which [52]*52the President could not lawfully forbid., and, therefore, was not presumed to have forbidden.
Here can be no evasion, as respects the power Sought to be controled. It is no other than the direct appointment of the legislature, which is intend-, ed to be annulled. The powers and duties of the legislative department are no less distinct and independent of the judiciary, than those of the executive ; nor can this supposed right of interference be better founded, than if the appointment had devolved on the executive of the State, and he had made it, as the legislature has done'.
In the case last referred to, Chief Justice Marshall says, in reference to the controling power of the judiciary, over the appointing power, (which, in that case, as we have seen, was the executive,) “ It is scarcely necessary for the Court to disclaim all pretension to such jurisdiction — an extravagance so absurd and excessive, could not have been entertained for a' moment. The province of the Court is solely to decide on the rights of individuals — not to inquire how the executive or executive officers perform duties, in which they have a discretion. Questions, in their nature political, or which are, by the constitution arid laws, submitted to the executive, can never be made in this Court. But, if this be not such a question— if so far from being an intrusion into the secrets of the cabinet, it respects a paper which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents: if it be no intermeddling with a subject, over which the executive can be -considered as having exercised any control, what is there in the exalted station of the officer, [53]*53which shall bar a citizen from asserting, in a Court of justice, his legal rights; or shall forbid a Court to' listen to a claim, or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on a particular act of congress, and the general principles of law V’
The case supposed in argument, by the counsel for the defendant, is believed to present a fair test of the principle contended for in behalf of the State. It is, that one, two, or all the members of this Court had been elected to their present situation, under the same circumstances which attend the election of the present defendant: could the judiciary investigate, revise and control the appointments ? I conceive not: besides the difficulty in selecting the'revising tribunal, the matter to be controled, would have been the exercise of a sovereign political power, by one of the highest departments of the government; and one involving no conflicting individual rights, presenting a judicial question.
On the same principle, I conclude this Court has no authority to control the appointment which has been made; and it would be supererogation in us, to express an opinion, respecting its constitutionality.
The Court being unanimous in the result, the rule must be discharged.
3 Hen. & Munf.1.