State ex rel. Meek v. Gleason

12 Fla. 210

• Court: Supreme Court of Florida
• Decided: July 1, 1868
• Status: Published

Opinions

RANDALL,'C. J.,

delivered the opinión of the court.

The respondent, by way of showing cause why a writ should not issue upon the information filed herein, urges reasons, numbered respectively from one to thirteen.

The Attorney-General moves to strike out, as irrelevant and impertinent, the causes numbered 9, 10, 11 and 13.

This motion has been Arery fully and faithfully argued, and incidentally, the merits of nearly all the points made by the respondent have been discussed.

The causes sought to be struck out by this motion, are substantially as follows:

9th. Because Harrison Reed, since his impeachment, has caused the proceedings to be instituted from malicious and vindictive motives, and to gratify a spirit of revenge and recrimination against said Gleason.

1.0tb. Because Governor Reed, at the time when said Gleason was elected Lieutenant-Governor, knew, by information or otherwise, how long said Gleason had been a citizen of the State; had urged and solicited Ms nomination; advocated his election; voted for him; and had full knowledge of all the facts he has caused to be set forth in the information, as the ground for asking this writ.

11th. Because the proceeding is wholly recriminatory against respondent, and grow out of tlie late impeachment of Governor Reed — lie charging said Gleason with having caused and influenced his impeachment.

13th. Because it would be an .improper use of the powers of this court, if it had such power, to grant the said writ for the purposes and motives that have originated this proceeding, and appearing herein.

These causes are alleged as reasons why this proceeding should not be entertained by this court. What facts may be shown, to substantiate these charges against the Governor and Attorney-General, Ave do not knoAV; they Avero not alluded to in the argument, and no proofs Avere filed or tendered in their support; the motion to strike out is based upon the irrelevancy of the points referred to, and the question really is, Avhcther this court will stop to investigate the merits of alleged private differences between a party in this suit and a person Avho is not a party, and is not affected by the proceedings, Avhatover its result may be, that person being the highest officer of the State, the head of the Executive Department. This leads us to an examination of some of the peculiarities of a proceeding of this nature, the duties and responsibilities of the Attorney-General, and the relation of the Executive thereto.

Upon an examination of the information, Ave find no reference therein to the Executive, and no relator is named except the Attorney-General, Avho files the information as the Attorney of the State and in its behalf. It charges that the respondent is occupying and performing the duties of an office of the State, which, owing to certain facts alleged, he is not entitled to hold, and that ho is holding such office in direct violation of a provision of the Constitution of the State. This charge is not frivolous upon its face, but is very serious, a direct palpable infraction of the highest law of the State.

There is no proceeding known to the common or statute law, applicable to the remedying- of such wrongs, except by quo warranto.

The proceeding of impeachment can only go against those who are guilty of high crimes and misdemeanors in office, or certain malcondnct while in office, rendering them unfit longer to lie entrusted with power.

The charge in the information is not one of- unfaithfulness or malfeasance in office, "but that he is forbidden by the Constitution to hold the office he occupies.

This proceeding in reference to high offices of the State, is almost universally instituted in the highest courts of the State or nation, and the highest law officer of the State is always the person who prosecutes; the object being to protect the people against unlawful intrusion into their offices, and contempt of their laws.

An office, in this country, is a franchise of the people, and their prerogative; in England, a prerogative of the crown. The Attorney-General is the attorney and legal guardian of the people, or of the crown, according to the form of government. His duties pertain to the Executive Department of the State, and it is Ids duty to use means most effectual to the enforcement of the laws, and the protection of the people, whenever directed by the proper authority, or when occasion arises.

ft was said upon the argument, that the court should always inquire who was the real relator. This is true of that class of cases to which the authorities quoted uniformly refer, to wit: inquiries into the exercise of corporate or private franchises; but not a single instance was referred to, wherein a relator appeared in the inquiry by quo warranto into the right to a public office of State, (except in the cases where some person claimed the office held by another,) and in no instance have we found that any attempt has been made to impugn the motives of the Attorney-General, or to call them in question. When this officer prosecutes, the courts do not inquire after any other relator, but presume he will not prostitute his office to dishonorable purposes.

At the common law, no one but the law officers of the crown could sue out the writ of quo warranto. It was regarded as the King’s writ of right, to be issued in case of the usurpation of an office in violation of the King’s right. This writ, at air early day, gave place to the more convenient proceeding of an information in the nature of a quo warranto. It was the practice of the officers of the crown to filo informations in their own discretion, upon the application of private persons; but these were not named as relators in the proceedings. (Cole on Information, 121.) By the act of 4 and 5 Will, and Mary, cli. 18, which took effect in 1603, which was passed to prevent frivolous in-formations, no information could be filed “ without express orders to be given by the court of King’s Bench in open court.” The statute of 9 Anne, ch. 20, Iffll, required thafcin informations relating to corporate offices or franchises the name of the relator should be mentioned in the information.

It is quite possible that cases may arise, in which the disturbing influence of party feeling may so affect the action of the Attorney-General as to result in great injustice to individuals.

But this is a question for the consideration of the Legislature, not for the courts. The power of determining whether the action shall be commenced, must exist somewhere. As wo have seen, it has sometimes been vested in the court and sometimes in the public prosecutor. Our legislature has not seen fit to make any change in the common law rule. The office of the Attorney-General is a public trust. It is a legal presumption that he will do his duty, that he will act with strict impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is in its nature a judicial act, from which there is no appeal, and over which the courts- have-no control. 3 Abbot, 131.

Rawle on the Const., p. 128, says : At common law there are two modes of instituting such pirosecutions, one of which is by an information, filed by the officer who represents the public, on his own judgment and discretion, which, if unadvisedly or corruptly done, may subject an innocent individual to very causeless pain and expense.”

In Rex vs. Marsden, 3 Burrows, 1812, which was an information, the defendant’s counsel says: “The Attorney-General is to judge of the prerogatives of the crown.” And Justice Wilmot, in the same case, (p. 1817,) says: “The old writ of quo warranto is a civil writ at the suit of the crown; it is not a criminal prosecution. Then informations, in the nature of a quo warranto, came into use, and supplied their place. In all the cases I could find, all informations of this sort were filed by the Attorney-Gen oral. ”

Lord Mansfield declared (in Hex vs. Philipps and others, 3 Burr., .1505,) that the Court would never grant an information upon the application of the Attorney-General in cases prosecuted by the crown, because the Attorney-General has a right in himself, ex officio, to exhibit one ; that he must use his own discretion. And see the same Judge in Rex vs. Phillip, Mayor, &c., 4 Burr., 2089. See also 3 Stephens, N. P. 2432. In the Commonwealth vs. Fowler, 10 Mass. R., 293, which was a quo warranto case, Mr. Ashmun, counsel for respondent, said: “ The court take notice of the relators, when an information is filed; and where a high judicial officer is the object of tire prosecution, they will require either that the legislature authorize the proceeding, or that the regular and responsible organ of the government do it in his own. name by virtue of his office.” Jackson, J., in the same case says: “ The Solicitor-General, having, ex officio, a right to do so, has filed this information.” Sow-all, J., says: “ Proceedings of this nature are to be instituted by a regular officer of the government. When he files an information I think we arc bound to presume that he files it ex officio.” Parsons, O. J., says: “It is not disputed that the Attorney and Solicitor-General respectively have full authority to file informations of this kind by virtue of the general powers of their offices. In such cases, as in all their official acts, they are accountable to the governmentfor their conduct.”

Tlio Governor of the State embodies the supreme executive power of the State. Sec. 17 of Art. V. of the Constitution says that the Governor shall be assisted\>y a cabinet of administrative officers, consisting of a Secretary of State, Attorney-General, and other officers. Sec. 8 of Art. VII. says the Attorney-General shall be the legal adviser of the Governor, * * * and shall perform such other legal duties as the Governor may direct, or as may bo provided by law.

The information in the present case, then, is filed by the Attorney-General, in his own discretion, or in obedience to the directions of the Governor, and the filing- of the information is an act of an officer of the Executive Department of the government.

Tlie respondent alleges that it emanates from the Executive himself; and if this be true, wo are substantially asked by the .respondent to lay the judicial hand upon the Executive and say to him, " you shall not perform certain of your official functions, without the consent of some other department of the government. When you desire to enforce any of the laws, you shall first obtain our consent; when you undertake to prosecute suits you must first ask of us the privilege of exercising your discretion." The effect of this would be to destroy the independence of a co-ordinate department; to invade and usurp the high duties of that department. Executive duties and powers belong to one department; ours to another. Were we thus to step in and undertake to control his actions in the premises,'a due regard to Ms position and his duty to the State, would require him to treat with a deserved contempt any mandate of that character, as an usurpation and a crime. We should be guilty of a violation of the third Article of the Constitution, and well deserve the consequences due to such an act, without the poor excuse of temporary expediency.

When suits are instituted at the behest of the Attorney-General, the law officer of the Executive department, we have but to hear the case and apply the law; and we can with no better grace pause and inquire into the motives of that department before proceeding to try alleged violations of law, which it seeks to bring to the notice of the courts, than we can question its moiives-m the making of appointments to office, or signing or refusing to sign the enactments of the legislature, or in ordering the militia to quell an insurrection.

We can not listen to an inquiry into the private, motives of a high officer of the State, in performing official acts, but must leave those matters to the only tribunal provided by law for making and conducting such investigations.

What court, since the days of Jeffreys, has ordered a plaintiff to disclose his motives for bringing suits to collect debts, to recover damages for unlawful acts, or a public prosecutor to show that he has no private reasons for enforcing the. law ? Parties are to be protected against vexatious prosecutions at the hands .of private persons, and this the courts may control in proper instances. Common barrators are punishable under the. statutes. But this is the first instance that has come to our knowledge, in which a court has been invoked to stop an important State-trial, instituted by the highest law officer of tho government, and to use the power of one high department of the State, in the business of developing and exposing to the public the merits of a private quarrel between individuals occupying prominent positions in another department — the only fruit of which may be to involve the friends of the respective parties thereto in public scandal at the expense of the people.

We can only try the issues of law and fact which may be presented in this case, and must observe the well-settled rule of excluding all collateral issues from consideration.

The causes numbered respectively 9, 10, 11 and 13, set iorlh by the respondent, must therefore be, struck out as irrelevant.

Motion granted.

WESTCOTT, J.,

delivered the following opinion upon the same-motion to strike out the ninth, tenth, eleventh, and thirteenth -causes assigned in the answer to the rule:

These answers to the rule consist of allegations to the effect that these “ proceedings are instituted by Harrison Reed (as a citizen, not as a Governor) from malicious, vindictive, and revengeful motives,” and the court having a discretion in the matter, should refuse to jjermit the case to be further prosecuted. It is the practice for the respondent, in a proper case, to raise these questions upon the rule to show cause why leave to lile an information should not be granted. Here there has been no such rule, and it is true that wherever the court would have refused leave to -file the information, it will ■ decline to grant the writ; hence this answer is as available to prevent the issuing of the writ as it would have been to have prevented the granting of the information. 12th Penn., 3V0.

In an ordinary action of assumpsit or debt it is true that any such matter as is herein alleged, if made the subject-matter of defense, would be stricken out; such, also, would be the rule in chancery causes, because such facts, if established, constitute no defense, and courts will not permit such harsh and abusive epithets to be applied by either party to the other. They subserve no good purpose, tend to establish no right, and are calculated to convert a judicial tribunal into an arena for the display of vindictive feelings through the instrumentality of insulting controversies.

How did it stand at common law. in a case of this character, and was there a discretion in the Court of King’s Bench from which this writ issued to inquire into the motives of the Attorney-General, or of a third person at whose instance it was presumed he was acting ? The ancient writ of quo warranto was in the nature of a writ of right for the King, its process was lengthy, and its judgment conclusive against the Crown. It was originally returnable before the King’s Justices at Westminster; but after the first statutes upon the subject, (6th Edw. I., and 18th Edw. I., S. 2,) it was returnable only before the Justices in Eyre. After those Justices, the sole tribunal to which the writ was returnable under the statutes, gave place to the judgeá of the several circuits, the statutes themselves lost their effect. For this reason, and because the judgment was conclusive against the Crown in this proceeding, and its process very long, we find no further traces of a distinctive writ of quo warranto in English judicial history. It gave place to the proceeding in the form of an information. It would seem that the old writ was an exclusively civil proceeding. The conclusion of the judgment was, “the defendant he in mercy f &c., as in civil actions. 2d Kid., 209; 1st Blackf., 272.

If a fine was to be imposed, the King’s Attorney-General, having the common law power to file an information whenever he was assured “that a man had committed a gross misdemeanor, either personally against the King or his government, or against the public peace,” could do so by this means, for “there can be no doubt but that this mode of prosecution, by information, by the King’s Attorney-General in the Court of King’s Bench, is as antient as the common law itself.” 4th Black., 309.

Here, then, was a proceeding which, while the exclusive jmrpose was originally at common law to punish an usurper, yet it must, in order to reach this conclusion, determine the right or title to the franchise, to fix the usurpation, and convict of the misdemeanor; and herein would seem to-be the reason for the difference mentioned in the books, between the character of the judgment in the old writ, and that in the proceeding by information. The judgment in the old writ being in the nature of a writ of right was conclusive against even the Crown, while, in the proceeding by information, the printipal and only purpose of which at common law was generally to Impose a fine, the judgment as to the franchise or office was not so entirely conclusive ; indeed, if this idea be correct, it would seem that originally there could have been no objection to have proceeded 'at the same time, by writ of quo warranto, to determine the civil right, and by information to fine for the usurpation.

Thus we see how the information in the nature of a quo warranto originated, and we have a clear explanation of its character, as defined by most elementary writers. “ It is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the Crown; but it hath long been applied to the mere purposes of trying the civil right, seizing the franchise, or ousting 'the wrongful possessor, the fine being nominal only.” 3d Black., 263.

It is “ a remedy given to the Crown against such as have usurped any offi.ce or franchise, being properly a criminal prosecution, in order to fine the defendant for his usurpation, as well as to oust him from his office, yet at present considered as merely a civil proceeding.” 4th Black., 310; 2d T. R., 484.

The old writ, for the reasons stated, passed away, and the information, the nature and character of which, except as to form, was essentially a civil as contra-distinguished from a criminal proceeding, took its ¡jlace; that is to say, the information in the nature of a quo warranto took its place, being applied to the purpose of trying the u civil right,” the fine being for the most part a fiction, as it was nominal only. , Thus understanding the character of an information in the nature of a quo warranto, let us revert to the question to be determined.

When the King’s Attorney-General desired, “virtute officii” to prosecute it in the Court of King’s Bench in a case such as is uow under consideration, could the court inquire into his motives, or the motives of a third party, presumed to influence his action, and dismiss the proceeding ?

The rule of practice applicable to other informations, in this respect, is applicable to this information; and at common law, not only the King’s Attorney-General but his Coroner, and Master of the Crown Office, could file without leave.

K For as the King was bound to prosecute, or at least to lend the sanction' of Ms name to a prosecutor, whenever the grand jury informed him upon their oaths that there was a sufficient ground for instituting criminal suit, so, when these, Ms immediate officers, were otherwise sufficiently assured that a man had committed a gross misdemeanor, either against the King or his government, or against the public peace, they were at liberty, without waiting any further intelligence, to convey that information to the Court of King’s Bench by a suggestion on record, and to j>rosecute it in the King’s name“ and the power of filing informations without any control at this time resided with the Master of the Crown Office even.” 4th Black., 309, 310, 311, and 312.

The statute of 4th and 5th William and Mary, provided that informations in the Crown Office should not be sued without express orders, in open court.

When this general statute came to bo construed by the .English courts, it was in substance held that, though an information, in the nature of a quo warranto, was a proper remedy to try a right in respect of which it might not have come in strictness within the meaning of the words “ trespasses, batteries, and other misdemeanors, in the statute, yet it being possible to fine for a misdemeanor, and the proceedings being vexatious, it was within the statute, which being a remedial law shall receive as large a construction as the word will bear.” 1st Salkeld, 55 and 376; 1st Tomlin. L. D., 197.

It was held that this statute extended to all informations except those exhibited in the name of the Attorney-General. 3d Stephens, Nisi prius, 2432 and 33; 2d Tomlin. L. D., 195.

Shis species of information was further regulated by another statute, 9th Anne, Chap. 20, which provided, if any person or persons should usurp certain offices of corporations, the proper officer of the Court of Queen’s Bench might, with leave of the court, exhibit an information, in the nature of a quo wranto, at the relation of any person desiring to prosecute the same against such person.

The conduct of the relator here will experience criticism at the hands of the court, and the consequence's of granting the information will be weighed. 3d Stephens N. P., 2433.

It was never, however, held that either of these statutes controlled or affected the common law power and discretion "of the Attorney-General, or gave the courts a discretion t'o look at the motive, and quash the information, in their discretion, when filed byv him.

In a case of such importance, and which is to establish the practice in this State, we think it not improper to quote at length, as reported, a case in which this question arose before Lord Mansfield. Rex. vs. Mayor of Plymouth, 4th Burr., 2089.

“ The Attorney-General moved for a rule upon defendant to show why an information should not be granted against him.”

“ Lord Mansfield asked him on whose behalf he moved this.” “Mr. Attorney-General declared on behalf of the Crown.” Whereupon Lord Mansfield rej ected the motion, declaring that he would never grant a motion for an information applied for by the 'Attorney- General on behalf of the Crown, because the Attorney-General has, himself, power to grant it, if he judges it to be a proper case for an information. It would be a strange thing for tlie court to direct their officer to sign an information which the Attorney-General might sign himself if he thought proper; and if he did not think it a proper case, it would equally be a reason why the court should not intermeddle. “ If it appears tp the King’s Attorney-General to be right to grant an information, he may do it himself; if he does not think it so, he cannot expect us to do it.”

This, it is true, was not an information in the nature of aguo warranto, but the same rule was applicable to it, when the Attorney-General proposed to act. It will be remarked that this motion was denied in 176 7, long after the passage of 4th and 5th W. & M., and 9 th Anne.

So it is evident that if the rule in the English courts in 1767, .and anterior to that time, is to prevail here, whether these statutes be operative in this State or not, (a question we do not decide, as it is immaterial,) there can be no power in this court to exercise the discretion asked in this case, even admitting the facts as alleged.

Without any express judicial authority upon the subject, it was insisted elaborately and ably by respondent at bar that while this matter was left in England to the discretion of the Attorney-General, there was no such discretion here; that the investment of such extraordinary power in one of the officers of this State, a power which enabled him, at his discretion, to call into question the right of any person elected by the people to exercise their offices, was inconsistent with the elementary principles of our government; and that while it might be true in England, where the King is esteemed to be the fountain of all power and justice, that his Attorn'ey-General, representing him, might and very properly should be invested with the exclusive discretion of calling upon any one to show by what warrant or authority he exercised the King’s liberties or franchises, yet that in this country, there being no King, a discretion at common law vested in the. King’s Attorney-General could not, by any proper analogy, be held to operate in like manner with the Attorney-General of a State; that while as to matters of contract, &c., the common law might be applicable, yet that discretions vested in officers of a monarchy could not be held to vest in officers, although of the same name, in a republic.

Admitting the force of this argument, we cannot see that it establishes the proposition that the court has the discretion to quash; the conclusion to be drawn from these premises is rather that the Attorney-General cannot prosecute the action, and hence it cannot be prosecuted at all, for, strictly speaking, he is the only one authorized to do it, for we have here no King’s Coroner, or Master of the Crown Office. The argument being that while this is an incident of the office of Attorney-General in England, the powers of the Attorney-General of a State are not analagous to his, the result would be that he cannot prosecute the information. We cannot see that these prernises establish the conclusion that the court has the discretion, claimed to dismiss. Because there may be a difference between the power of the King’s Attorney-General and the State’s Attorney-General, is no reason why there should be greater power in the court.

But leaving this argument and looking to judicial decisions, what is the rule in the United States upon this subject as it appears from the general current of authorities ?

Quite a number of cases were cited at bar in which courts exercised a discretion in the matter of informations of this character, filed at the instance of relators to try the right of a party to a corporate office or franchise. Among the citations were : 4th Cowen, 106.

This citation is a reference to a note by the reporter of the case of People vs. Richardson; and its reference to sustain the doctrine of discretion is to 6 Term Reports, 509, which was an information filed at the instance of one corporator against' another. The distinction between the case at bar and this one has been pointed out.

1 Penn. State Repts., 34, was an information at-the suggestion, of an individual to try the right of Edgar Cowan to the office of judge of a district, and the court ruled that a writ of quo warranto did not lie, except at the suggestion of the Attorney-General, against one holding a public office of this character, and that the remedy at the suggestion of an individual was confined to private injuries.

The court remarked, in the consideration of this case, that the office of Attorney-General was a public trust which involved the exorcise of an almost boundless discretion. The officer-acts under the obligation of an oath at the peril of impeachment.

This case seems to hold very clearly that the discretion in a ease of this kind is alone with the Attorney-General.

5th Richardson, 302, The Attorney-General had nothing to do with the proceeding in this case, and it was to try the title to the office of Mayor of Charleston.

12th Penn., 365, was also to try the title to an office of a municipal 'corporation.

7th Richardson is a case in reference to a bank.

6 B. Monroe, 399, was a case, in which the Attorney-General “ disclaimed the prosecution.”

1 Douglass, Mich. Rep’ts. The Attorney-General does not appear here, and there was a relator.

No authority cited sustains in the least the proposition that this court has a discretion for the causes assigned to dismiss this proceeding.

The citation, 7th Penn. State Reports, 34, shows the rule in that State. The discretion is with the Attorney-General.

In Massachusetts the rule is stated in 10th Mass., 298. In this case the House of Representatives of Massachusetts had requested the Attorney-General to file an information against Samuel Fowler, Avho Avas at the time exercising the office of Judge of Probate of Hampden county, whereupon, by virtue of this power, and of this authority, and in accordance with this request, he did so. The respondent moved to quash upon the ground that the information Avas not filed by him ex officio, but at tiro behest of the Legislature. Parsons, C. J., said the Attorney-General has full authority to file an information of this kind by virtue of his office. In such cases he is accountable to the government. The folioAving authorities shoAV this to-be the view in other States in the absence of statutory provisions: 5th Rh. I., 6-8; 2 Rh. I., 7; 30th Ala., 67; 2d Texas, 159; 4th Texas, 4-06 ; 1st English, 231; 6th B. Monroe, 398.

Such would seem to be the result of the Adews of Sanderson, C. J., in 28th California, 139.

The following, which is the last case I cite that has a bearing •apon this subject, expresses my own vieAVS.

An information in the nature of a quo warranto may be filed at the discretion of the Attorney-General in a case of this character. The proper process “ issues on demand of the proper officer of the State, as a matter of course, and there is no more necessity for an application to this court for this writ than there would be for a summons in a circuit court when the State is about to commence an action of debt against one of her debtors-No reasons are offered why the writ should issue, no information is communicated by affidavit or otherwise, and there is no power in this court to refuse issuing the writ. Why ask leave ? It is the admission that this court has a discretion, whereas none is conceived to exist.” 8th Missouri, 331.

Under the laws of this State, the Attorney-General is as much the representative of the State of Florida in the Supreme Court, as the King’s Attorney-General is his representative in the Court of King’s Bench; indeed, more so, as in the Court of King’s Bench there are for certain causes representatives of the King’s other than the Attorney-General; while here, it is his sole duty to “ appear in and attend to, in behalf of the State, all suits or prosecutions, civil or criminal, or in equity, in which the State may be a party, or in anywise interested, in the Supreme Court of this State.” Acts of 1845, page 5.

The office of Attorney-General is, in many respects, judicial In' its character, and he is clothed with a considerable discretion. The appropriate and proper function of courts is to hear causes that the citizen of the State may see proper to institute, and there are but few cases in which they can exercise a discretion to refuse to hear them. The Attorney-General being intimately associated with the other departments of the Government, being as well the proper legal adviser of the Executive as the Legislative department of the Government, it is highly proper, whenever the right to a public office is to be tried, that he should be clothed with a discretion in the premises which should be exercised at least independently of the courts in actions of this character. A careful review of the cases in the books will show that the records disclose that in almost every case of this kind there is more or less political feeling, and the case at bar discloses no less, and indeed much more, of this than is usual. Is it to be said that it is a function appropriate to a court to weigh the motives of contending political factions, examine into their various political theories, attempt to enter into their breasts, and determine motives ? Are they to measure with microscopic analysis, and ascertain whether there is passion and prejudice, and after ascertaining that there is, to fix by judicial determination just how much of each, or either, or both, is necessary to remove a case from judicial scrutiny ?

The court cannot criticise the motives of a party acting as an officer; it may, in some cases, exercise a discretion where a relator clothed with no official discretion asks its aid. In him are vested no public rights, no governmental discretion, and he seeks a judicial tribunal as an individual, and should not be permitted to inquire into rights to franchises unless the public good is promoted thereby.

This discretion is vested in the Attorney-General; if he exercises it improperly, there is another tribunal, the people, or their grand inquest, the Assembly, to punish him.

After argument upon the fifth and sixth causes assigned by respondent why the writ should not issue,

RANDALL, C. J.,

delivered the opinion of the court.

The fifth and sixth causes assigned why the writ should not issue are as follows:

“ Fifth. Because the said Almon R. Meek, represented in the said rule of this court to show cause as being the Attorney-General of the State of Florida, is not the Attorney-General of said State, nor are the said proceedings instituted or prosecuted by the Attorney-General of said State, and because the said Almon R. Meek, claiming to exercise the functions and authority of Attorney-General, was appointed by Harrison Reed, Governor of the said State, after he had been impeached by the Assembly of said State, and before his acquittal by the Senate, and was, therefore, by the Constitution of said State, under arrest, and disqualified from performing any of the duties of his office.”

“ Sixth. Because at the time of the institution of the proceedings in this case, and at present, F. A. Doekray was and is the legal Attorney-General of the State of Florida, he having been appointed to that office by the Lieutenant and Acting-Governor of the State, William H. Gleason, after the impeachment of the said Harrison Reed, and before his acquittal by the Senate upon whom at that time, and before, had devolved, by the Constitution of the State, all the powers and duties of government.”

We will examine these propositions carefully.

1. This suit is prosecuted for the purpose of testing the right of the respondent to occupy the office of Lieutenant-Governor.

2. The respondent proposes to try the right of Governor Reed to perform the duties of the office of Governor.

3. The respondent proposes to investigate the title of Almon R. Meek to the office of Attorney-General.

i. The respondent seeks to establish the title of Mr. Doekray to the office of Attorney-General, by virtue of an appointment made by himself as Lieutenant-Governor acting as Governor by virtue of the alleged impeachment and suspension of Governor Reed.

Were we to enter into this investigation of the rights of the several other persons named to the offices referred to, we could yet render but one judgment, and that affecting only the respondent. The other parties named, not being parties in this proceeding, would not be concluded by the judgment. Each of them has a right to make such issue as may be necessary upon the law and the facts in his own case, and is entitled to the verdict of a jury thereon if properly demanded.

It is not disclosed to the court how all these things are to be done in this case, and the books are silent as to any proper mode of proceeding to that end.

On the contrary, we find it to be utterly impracticable.

The information was filed by Almon R. Meek as the Attorney-General of the State. This court recognized him as such officer, and took notice, judicially, of the fact, as it recognizes other of the principal officers of the departments of government. We recognized him as we recognize the Treasurer or Comptroller; as we recognize the Senate and Assembly and its officers when the Legislature is in session; and we recognize his appointment as Attorney-General as an act of the Executive Department, as we take notice of the acts of the Legislative Department. These are all acts appearing of public record, and therefore of public notoriety and reputation. It would be novel, indeed, to require of the Attorney-General to exhibit his commission, and then to investigate the circumstances' and reasons which induced an acting Governor to issue it, whenever he came before the court to prosecute for, or to defend the State, at the suggestion of an opposing litigant. His commission is his private property, and is his means of protection when his doings are attacked, provided that when the commission itself be attacked in a direct proceeding, its validity may be investigated. A collateral impeachment of his commission might likewise be attempted in each and every proceeding instituted by him, and the judgment of the court upon the question thus raised would not make him either more or less secure in the possession of the office. The Executive Department recognized and held out to the public that he was the acting Attorney-General. The archives and records of the State also proclaimed the fact that he had been commissioned and qualified, and there can be no higher evidence of the fact. But it is said that he is an usurper. That is what is charged against the respondent; but the respondent came into office under color of an election, and Ms acts as Lieutenant-Governor are as valid and binding upon the State and upon courts as though his right to the office had never been questioned. This court recognizes him as the Lieutenant-Governor, yet not by reason that any evidence of his election has been presented, nor can such evidence be required except the fact of election be put in issue in a direct and proper manner. And so this court has not before it, upon its record, any evidence as to who was elected as Governor, or who was appointed to the office of Comptroller. Yet we recognize as a public, palpable fact, not who may be entitled to occupy those offices, but who, defacto, occupies them and performs their functions. This court has recognized, and no one questioned its right so'to do, the persons of the Governor and of the Lieutenant-Governor, and their official habiliments, and their signatures; has received from and transmitted to each of them official communications, without' other proof of their identity, their election, or their signatures, than'such as every officer or citizen of the State had of those facts. We should scarcely have been warranted in requiring testimony on each occasion, as to the eligibility, election, oath of office, and sign manual of the person occupying the Executive department under color of right, before giving response to questions which the Governor had a legal right to propound, and to which we were required to respond.

The well-known and well-settled rule of the judicial recognition of officers, is acted upon • every day throughout the country. Without it the wheels of government would be clogged. The circuit courts, county courts, and justices of the peace recognize the persons and the signatures of sheriffs, constables, and other officers; and what would be said of the acumen of any of these courts, if upon every occasion of the service of process or official certificate, a defendant should be permitted to challenge and' put to the proof the persons and signatures of those officers, and attempt, thus collaterally, to try the right of office of the person recognized and 'reputed to be the officer ?

It can scarcely be necessary to prove the correctness of our position by citing the adjudications of courts and of eminent jurists, yet, as some of the questions which have arisen in this case have not been passed upon by the courts of this State, it may not be out of place to do so.

The questions raised are, whether the court will take judicial notice who are the acting principal officers of the State; the validity of the acts of officers de facto ; and whether the title of an officer defacto can be attacked and adjudicated in a collateral proceeding.

“ Courts take notice of the territorial extent of the jurisdiction and sovereignty exercised de facto by their own government ; and of the local divisions of their country into States, provinces, counties, cities, towns, local parishes or the like, so far as political government is affected; and of the relative positions of such local divisions. They will also judicially notice the political Constitution or frame of their own Government; its essential political agents or public officers, sharing in its regular administration, and its essential and regular political operations, powers, and action. Thus, notice is taken, by all tribunals, of the accession of the Chief Executive of the nation or State under whose authority they act; Ms powers and privileges; the genuineness of his signature'; the heads of departments, and principal officers of State, and the public seals,” &c., &c. See 1 Greenleaf's Ev., Sec. 6, and authorities cited; also Sec. 479. “It has been already seen that courts will judicially take notice of the political Constitution or frame of government of their own country, its essential jrolitical agents or officers, and its essential ordinary and regular operations.” 1 Mann, (Mich.,) 227.

The courts of the United States will take notice of the persons who, from time to time, preside over the patent office, whether permanently or transiently. York, &c., R. R. Co. vs. Winans, 17 How., 30.

In the case of The State vs. Williams, 5 Wis. R., 308, which was that of an alternative mandamus against the respondent requiring- him to perform a certain duty required by an act passed by the Legislature, or to show cause, &e., the question was raised, that the law in question had been approved by one Barstow as Governor, whereas it was alleged that the term of office of said Barstow had expired prior to said approval, and that he wrongfully held the said office at the time of the passage and approval of said act, and that one Bashford was, at the time, the rightful Governor, and had been duly sworn into office before the said passage of said act, but that said Barstow retained possession of the Executive office, approved said act as Governor, and that the act was never presented to Bashford, the lawful Governor, for his approval, and was therefore not a law. The Chief-Justice, in delivering the opinion of the court, says that this position cannot be sustained. “ Courts tahe notice of the accession to office of officers of this description, without proof, and although this does not prevent courts from inquiring into their right to hold office, by an information in the nature of a quo warranto, still, while they remain in office, courts will take notice of the fact, and regard them as officers de facto. The general doctrine that the acts of officers de facto while in office are good as to third persons, we suppose to be too well settled to require the citation of authorities to support it; and -we cannot perceive how this case differs from the ordinary one of an office unlawfully held by one, to the exclusion of the person who islaiofully entitled to it." And though, after the approval of the act by the usurping Governor, the same court, by means of the quo warranto proceeding, pronounced judgment of ouster against him, and the lawful Governor was duly admitted to the office, before this case arose, yet the court applied to the acts of Governor Barstow, while he had possession of the office, the rule uniformly applied by the courts to the acts of officers de facto.

Another case arose subsequently (9 Wis., 264) before the same court upon habeas corpus. The petitioner was convicted of an assault and battery before a municipal court, the judgewhei’eof had been elected at an election held some time after the passage of the act authorizing such election, but before the act was in force. The prisoner prayed a discharge on the ground that the judge was not legally in office. The court say, that “ without determining what effect this would have upon the title of the judge or clerk of that court to their respective offices, in a direct proceeding to test their right, yet an election having been held, and they elected, and having entered upon the actual exercise of the duties of the offices, we think, after the law became operative,-so that the offices were legal, they were officers de facto, and that their right to hold the offices cannot be inquired into1 in a collateral proceeding of this kind. It is not an inquiry into the jurisdiction of the court, which may always be inquired into ; it is an inquiry into the-right of the judge to hold his office, which is a question entirely distinct from that of the jurisdiction of the court over the offense. Neither do we say that it cannot be inquired into on habeas corpus, whether the officer sentencing a prisoner was an officer defacto. That inquiry might undoubtedly be made; because every person assuming to exercise the authority of an office!', does not thereby necessarity make himself an officer de facto. But when it appears that the person exercising the powers of an office is in by such a color of xight, and that he has such possession of the office as makes him in law an officer de facto, then his acts, as to third persons, are valid, and his right to hold the office can only be inquired into in some direct proceeding for that purpose. The trial and conviction of the prisoner having occurred after the law was in force, he could not, on habeas corpus, raise the question of the strict legal right of the judge to hold the office.” This judge was, in fact, ousted from office by quo warranto, on the ground that his election was irregular and void, yet none of his judgments were disturbed by reason of. Ms want of legal title to the office. The court is fully sustained by Fowler vs. Beebee, 9 Mass., 231; Comm. vs. Fowler, 10 Mass. 305; Case vs. The State, 5 Ind., 1; Pritchett vs. The People, 1 Gilm. (Ill.) 525; 24 Ill., 184; Town of Lewistown vs. Proctor, 23 Ill., 533; 1 Denio, 574; 5 Wendell, 233; 7 John son, 549; 9th do., 135; 3 Bl. Com., 262; 24 Wend., 520; Greenleaf’s Ev.; Phillips’ Ev.; Starkie’s Ev.; Angell & Ames on Corp., 274; King vs. Bedford Level, per Lord Ellenborough, 6 East., 368-9; 1 Lord Raymond, 658; 12 Wheaton, 70; 1 Harris and Gill, (Md.,) 421-2; 14 S. & Rawle, 405; 1 Peters, 46.

The rule applies to ministerial and judicial officers alike. The King vs. Lisle, Andrews, 163; 9 Johns., 135; Viner’s Abr. Tit. Offices; Harris vs. Jays, Cro. Eliz., 699; 15 Mass., 180; 5 Wend., 231; 13 Johns., 218.

“An officer defacto is one who has the reputation of being the officer he assumes to he, and yetis not a good officer in point of law.” Lord Ellenborough, 6 East., 368-9.

“ A person by color of election may be an officer de facto, though indisputably ineligible; or though the office was not vacant, but there was an existing officer de jure at the time.” A. & A., 274.

In the Supreme Court of New York, (3 Barbour, 162,) a writ of habeas corpus was sued out for the purpose of obtaining the discharge of a prisoner, on the ground that the act of the Legislature, under which the committing magistrate was elected, was imconstitutional, and conferred no authority upon the magistrate. The court held that the act was unconstitutional, (and the case seems to have been made and argued for the purpose of testing that question,) and yet the prisoner was remanded. Judge Edmonds, in his opinion, says, “ The writ of habeas corpus was invented for a very different purpose from that assigned to it on this occasion. It may sometimes, with propriety, be used as a writ of error, but I am yet to leam that it can over properly be converted into a quo 'warranto. The habeas corpus is a writ of right to which every person is entitled, ex mérito justitim. The quo wwiranto can be sued out only by the Attorney-General; and it is at his option whether he will give any party the beneAit of it.” Yet in this case, under the pretense of relieving against an abuse of the right of personal liberty, the court, by means of a writ which it is compelled to allow, is called upon to determine a question of usurpation of office, which the Attorney-General may consider as too clear to justify his interference; or which, for ought we know, he may already have definitely acted on. And to do that we are called upon to determine that Chancellor Kent was wrong in laying it down in his Commentaries (2 Comm., 295,) that in the case of public officers, who are such defacto, acting under color of office by an election or appointment not strictly legal, their acts are valid as respects the rights of third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice. And that he was equally wrong when, as Chief-Justice, in answer to a proposition that an officer defacto is one coming into office by color of an election, and that all his acts are valid until he is removed, he remarked that the law was too well settled to be discussed. T Johns., 552.

And that the late Supreme Court was equally wrong in declaring that the acts of officers defacto are as valid and effectual when they concern the public as though they were officers de jure. The affairs of society could not he carried on upon any other principle. 5 Wend., 233.

This opinion, and the authorities referred to, in our view covers the suggestion that Governor Reed had been impeached before the appointment of Mr. Meek, and that he had not been acquitted by the Senate. The matter of the impeachment is suggested by recital; it is not directly alleged that Governor Reed had been impeached, but is referred to in the 5th and 6th causes. But treating it as though it were an allegation that the Governor had been duly impeached and suspended, the well-settled rales above set forth are applicable, to wit: That Mr. Meek beIng in office, exercising the functions thereof under color of appointment, the only mode known to the law of testing his right is by a proceeding against him for that purpose.

Were such an issue permitted to be made in this case, it would be necessary to suspend these proceedings until that issue could be tried; and then, as has been suggested, we might be called upon, with equal propriety, to pause in that inquiry and investigate the titles of three or four or more of the gentlemen sitting-in the Senate and Assembly, in order to arrive at a conclusion. We can try but one ease at a time.

We must, refuse to enter into the investigation.