2. When the proceeding is instituted in behalf of a private individual, and has for its object not only to oust the respondent but to install the relator, the burden of proving the relator's title rests upon himself. Even though the respondent's title may be impeached, this does not establish the relator's right,' but before there can be a judgment in his favor he must show that he is legally entitled to receive the office upon the respondent's

ouster.'

§ 495. Trial by Jury.-Trial by jury is not a matter of right in quo warranto cases, but is provided for by the statutes of many of the States."

§ 496. The Judgment.-Where the defendant disclaims, the State is entitled to an immediate judgment of ouster. If the issues were found in favor of the respondent, the judgment, at common law, was that he be allowed his office."

Where, however, the defendant made default or the issues were decided against him, the judgment, at common law, was that the defendant be fined for his usurpation and be ousted from his office."

Under the modern statutes where the proceedings are instituted by the State, or by a private individual, not only to oust the respondent but also to install the relator, the judgment is ordinarily more comprehensive. In such a case the respondent may be ousted without the relator's being installed, but ordina

'People . Thacher, 55 N. Y. 525, 14 Am. Rep. 312.

People v. Lacoste, 37 N. Y. 192; Miller. English, 21 N. J. L. 317; State v. Norton, 46 Wis. 332; State v. Hunton, 28 Vt. 594.

See State v. Johnson, 26 Ark, 281; State v. Lupton, 64 Mo. 415, 27 Am. Rep. 253; State v. Vail, 53 Mo. 97; State v. Johnson, 26 Ark. 281.

But see White v. Doesburg, 16 Mich. 133; State v. Allen, 5 Kans. 213; State . Burnett, 2 Ala. 140.

4 In New York, see People v. Albany, &c., R. R. Co. 57 N. Y. 161. In Minnesota, see State v. Minnesota

8

Minn.,

5 High, Ex. Rem. 745.

41 N.

In Michigan it was held that on the default of the respondent the court could give judgment of ouster, but could not determine the right of the relator to the office. People v. Connor, 13 Mich. 238. But see AttorneyGeneral v. Barstow, 4 Wis. 567.

High, Ex. Rem. §§ 745, 747.

The judgment of ouster against the respondent does not of itself establish relators' right, but he must prove his title. People v. Thacher, 55 N. Y. 525, 14 Am. Rep. 312.

rily the judgment determines the rights both of the respondent and the relator, finding one to be and the other not to be entitled to the office according to the facts.1

Where, under the statutes, the relator is entitled to costs upon a judgment of ouster, the fact that the term of office of the usurper has expired since the beginning of the proceeding' or that he has vacated or resigned' the office, does not ordinarily operate to prevent the rendition of the judgment, but the court will proceed to settle the rights of the parties and to award judg

ment.

The imposition of a fine is usually a matter resting in the sound discretion of the court, and where no improper motives are shown it will usually be merely nominal."

$497. Effect of the Judgment.-"It is foreign to the objects and functions of the writ of quo warranto," says SмIтн, J., in a leading case in Wisconsin, "to direct any officer what to do. It

If relator's right is in doubt, judg ment may be given against the respondent, leaving relator's title to be settled in another proceeding. People v. Phillips, 1 Denio (N. Y) 388.

"The title of a relator can only be adjudicated when, upon the facts lawfully established in the cause, his right necessarily appears from the finding. It is no part of the principal issue in the cause, and disproving respondent's right does not establish his: People v. Connor, 13 Mich. 238; People v. Miles, 2 Mich. 348; People . Knight, 13 Mich. 230." People v. Molitor, 23 Mich. 341.

In Michigan, the statute (H. S. § 8638) provides: “In every such case judgment shall be rendered upon the right of the defendant, and also upon the right of the party so entitled; or only upon the right of the defendant, as justice shall require."

• People v. Hartwell, 12 Mich. 508, 86 Am. Dec. 70; People v. Loomis, 8 Wend. (N. Y.) 396, 24 Am. Dec. 33. In the latter case NELSON, J., said:

"The remedy must be entirely fruitless in this case, as the term of office of the defendants has long ago expired. If application had been made for the quo warranto, we should have denied it, as was done in the People v. Sweeting, 2 Johns. 184. Although judgment of ouster will be unavailing, and the damages, if a suggestion be made, must be very trifling, still I am of opinion we can not suspend the judgment, as the revised statutes are imperative, and give to the prevailing parties costs."

To like effect: Hammer v. State, 44 N. J. L. 667; State v. Pierce, 35 Wis. 93.

But contra, see State v. Porter, 58 Iowa 19, and see State v. Jacobs, 17 Ohio 143, and State v. Ward, 17 Ohio St. 543.

3 King v. Williams, 1 Black. W. 93. See also State v. Taylor, 12 Ohio St. 130.

King v. Warlow, 2 M. & S. 75. • State v. Brown, 5 R. I. 1.

is never directed to an officer as such, but always to the personnot to dictate to him what he shall do in his office, but to ascertain whether he is constitutionally and legally authorized to perform any act in or exercise any functions of the office to which he lays claim."

It is, therefore, held in that case "that a judgment of ouster against the incumbent of an office in no way affects the office. Its duties are the same, whether the original incumbent remains in it, or whether another is substituted in his place. If a removal from an office by a judgment of ouster against the incumbent would affect the office itself, so also would a removal by the death of the incumbent or his resignation. In all these cases we think the office is in no way affected. It remains as it was before the removal."

But while the office thus remains the same, the legal effect of the judgment of ouster upon the pretended officer is to completely remove him from the office, to render null and void all his pretended official acts after the rendition of the judgment, to deprive him of all further official authority, and to conclude him from again asserting title to the same office by virtue of any prior election or appointment. But a judgment of ouster does not affect one who was not in any way a party to the action. Hence while subordinates or assistants appointed by or holding under the deposed officer, and whose title is dependent upon his, lose their offices when his ceases, yet where an assistant does not derive his office from, or in any manner hold under the deposed officer, the judgment against the latter in no way concludes the former."

498. Damages for Usurpation.-The awarding of damages to the relator against the respondent for the unlawful usurpation and detention of the office was no part of the functions of the

'Attorney-General v. Barstow, 4 State v. Camden, 47 N. J. L. 454; Wis. 567, at p. 773.

Attorney-General. Barstow, 4 Wis. 567, at p. 659.

State v. Johnson, 40 Ga. 164; King . Serle, 8 Mod. 332.

King v. Clarke, 2 East 75.
People . Murray, 73 N. Y. 535;

Campbell. Hall, 16 N. Y. 575.

King . Lisle, Andrews 163; King . Hebden, Andrews 389; King a Grimes, 5 Burr. 2599; King v. Mayor, 5 D. & E. 66; People v. Anthony, 6 Hun (N. Y.) 142; People v. Murray, 73 N. Y. 535.

People . Murray, 73 N. Y. 535.

common law proceeding, but the modern statutes have in some cases so enlarged its scope as to permit the relator to claim and recover such damages.'

When so awarded, they are determined by substantially the same rules which prevail in other cases. The relator's right to damages covers the whole period of his exclusion, and the extent of the recovery is to be measured by what he has lost.' Where a salary is attached to the office, it would ordinarily furnish the measure, but where there is no salary the revenue of the office would be ascertainable by other means.'

The fact that the respondent acted in good faith would not prevent the relator from recovering the actual damages sustained, nor would he be compelled to allow the respondent to set off the value of the latter's services in performing the duties during the time he held the office.'

§ 499. Costs.-The same statutes usually provide for the recovery of costs by the successful party.'

'Thus in Michigan, by H. S., 8641-3, the relator may at any time within a year from the judgment in his favor, file a suggestion as to damages, which shall be tried, and the relator "shall be entitled to re. cover the damages which he may have sustained by reason of the usurpation." People v. Miles, 2 Mich. 350; People v. Hartwell, 12 Mich. 522, 86 Am. Dec. 70; People v. Cicott, 15 Mich. 327; People v. Miller, 24 Mich. 458, 9 Am. Rep. 131; Comstock v. Grand Rapids, 40 Mich. 397; People v. Sackett, 15 Mich. 315.

People v. Miller, 24 Mich. 458, 9 Am. Rep. 131.

* See People v. Miller, 24 Mich. 458, 9 Am. Rep. 131; Auditors v.

326

Benoit, 20 Mich. 176, 4 Am. Rep 382, Dolan 7. Mayor, 68 N. Y. 274, 23 Am. Rep. 168; Matthews . Supervisors, 53 Miss. 715, 24 Am. Rep. 715; McCue v. Wapello County, 56 Iowa 698, 41 Am. Rep. 134; Commissioners. Anderson, 20 Kans. 298, 27 Am. Rep. 171; McVeany ʊ. Mayor, 80 N. Y. 185, 36 Am. Rep. 600.

4 See Stuhr v. Curran, 15 Vrom (N. J.) 181, 43 Am. Rep. 353.

People v. Miller, 24 Mich. 458, 9 Am. Rep. 131.

People v. Miller, 24 Mich. 458, 9 Am. Rep. 131.

- 20 Pac.

Peter D. Blue,40 Kans. Rep. 852; Moss v. Patterson, 40 Kana. 720, 20 Pac. Rep. 457.

BOOK III.

OF THE AUTHORITY OF OFFICERS, AND THE MANNER OF ITS EXECUTION.

CHAPTER I.

OF THE NATURE AND EXTENT OF THE AUTHORITY.