
    The State of Ohio ex rel. T. E. Grisell v. William Marlow.
    A specific mode of contesting elections in this state, having been provided by statute, according to the requirement of the constitution, that mode alone can be resorted to, in exclusion of the common law mode of inquiry by proceedings in quo warranto* The statute which gives this special remedy, and prescribes the mode of its exercise, binds the state as well as individuals.
    Information in the nature of a quo warranto. — Motion to dismiss and strike the information from the files. — Reserved in the district court of Wyandot county.
    On the 21st of April, 1864, the relator filed in the district court of Wyandot county, an information, which, omitting the caption, reads as follows :
    “ The said relator, T. E. Grisell, represents that the said William Marlow has usurped, intruded into, and, ever since the 28th day of February, A. D. 1864, has been unlawfully /holding and exercising the office of sheriff within and for the ■county of Wyandot in the said State of Ohio.
    
      “ That at the annual election for the year 1863, held in said ■county on the 2d Tuesday of October of said year, Andrew R. Ingerson and the said William Marlow were the only candidates for the office of sheriff in said county; and that, at said ■election, of the legal votes cast for said office, the said Inger¡son received one thousand eight hundred and fifty-five votes, /and the said William Marlow received one thousand seven ■hundred and ninety votes; leaving a majority, in favor of ■ said Ingerson, of sixty-five votes.
    
      “ That the said Ingerson, at the time of said election, was ■ and still is an elector of said Wyandot county, and eligible to the office of sheriff therein, and at said election was duly .elected to said office, and is now entitled to hold and enjoy •the privileges and emoluments of the same.
    “ The said relator asks that the said William Marlow may ¡be compelled, by the judgment of the court, to give up and vacate said office of sheriff, and that the said Ingerson maybe invested with authority to take and exercise said office, and for other proper relief.
    “T. E. Grisell, Relator.”
    At the same time, the said relator filed another and separate paper, which reads as follows •
    “The State oe Ohio, 1 ’ on the relation of T. E. Grisell, against William Marlow.
    , , a . r District court oi Wyandot county. ] Motion for leave to file an information in the nature of a quo warranto.
    
    
      “ It appearing to me that the prosecuting attorney of said Wyandot county is interested in the above cause, and that an information, in the nature of a quo warranto, ought to be filed in said cause, in the district court of. said county, it is ordered, that T. E. Grisell, a member of the bar in said county, have leave to file, in said court, an information in the nature of a quo warranto, against the said William Marlow, and prosecute the same in place of said prosecuting attorney.
    “ Wm. Lawrence, ■
    
      “Judge of the court of common pleas of the 2>d judicial dis. trict of Ohio, and one of the judges of the district court of the said county of Wyandot.
    
    
      “April 19, 1864.”
    The defendant, Marlow, having been brought in by the proper process, filed two motions, one to dismiss the information, and the other to strike it from the files :
    1. Because of the insufficiency of the leave to file said information.
    2. Because said information was irregularly filed, and that the application for leave to .file the same was without notice, and unsupported by affidavit.
    3. Because said information does not state facts sufficient to give this court jurisdiction.
    4. Because this court has no original jurisdiction in such case.
    
      The case coming on to be heard on these motions, was reserved in the district court for decision by this court.
    These motions were argued orally and on briefs
    
      T. W. Bartley, and Mott § Berry, for defendant.
    
      T. W. Bartley, submitted the following:
    The following points are made in support of the motion to strike the information from the files.
    1. The information was irregularly and improvidently filed in the district court, without leave given in the usual and requisite course of judicial proceedings.
    
      First. Because the leave was not by an order of the court, and the leave given by the judge in vacation is not indorsed upon the information, or in any manner attached to, or connected with it. And there is nothing to show that this information was before the judge, or seen by him, or the information which he gave the leave to file.
    
      iSecond. It does not appear that any application, by motion in writing or otherwise, was made to the judge for the leave to file the information. This judge in vacation had no power .to direct sua sponte, the filing of the information. And a voluntary note from him in writing sent to the clerk of the court, giving leave to file an information without an application, and without seeing the information, would be irregular and an unwarranted proceeding.
    
      Third. The information is not filed by the prosecuting attorney of the county, but by another person appointed to perform this duty in his stead. Upon what showing did the judge find that the prosecuting attorney was interested ? Bid he find this out upon idle rumor, or upon the loose conversation of the relator himself? Is this judicial finding to be made, not only, ex parte, and without any showing on. paper, but by outside pressure, and by loose irresponsible communications to the judge by interested parties, in the absence of the other side ? But the prosecuting attorney was not, and is not interested in this case at all. And there is nothing to show in this case that he has a case of his own pending, 01 if he has, that his case would be at all affected by the question in this case. And if the law requires this public duty to be performed by a disinterested prosecuting attorney, the judge did not better the matter by substituting an equally interested person.
    
      Fourth. The ground of the application for the leave (if any application was made), was not set forth in, or supported by, affidavit. It is a settled rule of practice, that an application for leave to file an information of this kind, “ must be founded on affidavits, stating fully the grounds upon which the defendant’s title is impeached.” Angel & Ames on Corporations, chapter 21, sec. 6, pp. 711, 712, etc. And this was the more especially requisite in this instance, inasmuch as the additional showing was necessary to enable the judge to act in the matter of displacing the prosecuting attorney, and appointing a man to take his place. All the English and American cases require affidavits to support the application. Whether it is simply an application for leave to file, or a rule to show cause, it is substantially the same thing.
    This is the rule of practice at common law; and as the statute has not prescribed the mode of procedure in allowing this leave, the rule of practice at common law must prevail. See State of Ohio v. Bryce, 7 Ohio Rep. 417.
    
      Fifth. The practice, as settled, and recognized by the supreme court of this state, as early as 1831, requires previous notice of the application to be given to the opposite party. The case of the Bank of Mount Pleasant, 5 Ohio Rep. 250. The chief part of the reported cases, both English and American show, that, on this application for leave, affidavits were received on both sides. This shows that this is not an ex parte matter; and that notice was given to the other.side, else he would not have appeared. The practice and the fair rule require this notice. See The People v. Tibbets, 4 Cow. Rep. 383; Angel & Ames on Corporations.
    On the question of the necessity of affidavits to support motion for the leave to file quo warranto : The People ex rel. 
      
      Teel v. Sweeting, 2 Johns. 184. Affidavits submitted on motion, yet refused: The People ex rel. Macey v. Hillsdale Turnpike Company, Ibid. 190. Affidavit submitted also, refused because an adequate remedy in the usual course of the law : The Com. v. Douglass, 1 Binney’s Rep. 77. Affidavits given in full: The King v. Cole, 6 T. Rep. 641. Affidavits before leave given ought not to be “ entitled ” in any case: Rex v. Scolden, 2 Barnard, 439; Rex v. Newling, 3 T. Rep. 310; Rex v. Mein, Ibid. 596. A material fact omitted in affidavit may be supplied by statement in answer : The King v. Sargeant, 5 T. Rep. 469. The affidavits must state facts, and not conclusions of law, so that a prosecution for perjury could be predicated, etc: The King v. Lane, 5 B. & A. 488. Refused because affidavit insufficient: Rex v. Slythe, 6 B. & C.: Papers on Sufficiency of Affidavit. The Queen v. Slatter, 3 Perr. & Davison, 265, decided on objection to sufficiency of affidavit, 1840. State ex rel. Loomis v. Moffit, 5 Ohio Rep. 358, founded on affidavit; 4 Cow. Rep. 105; Buller’s Nisi Prius, p. 210 ; Angel & Ames on Corporations, p. 780, etc.; Bacon’s Abr., 5 vol. pp. 185, 186; Petersdorf's Abr. vol. 14, pp. 73, 74.
    Previous notice of the application to the judge, should have been given to the opposite party. The Bank of Mount Pleasant, 5 Ohio Rep. 250.
    As the statute has not prescribed the rule of proceeding in cases in quo warranto, the forms of proceeding are as at common law. State v. Bryce, 7 Ohio Rep. 417.
    
      Sixth. The leave authorized by the statute is, leave to the prosecuting attorney (or his substitute, as in this case), to file an information “ upon his own relation, or the relation of any private individual,” etc. Now, the order here was not to file it on either the relation of the person appointed, or any one else. The allowance does not state that it is to be on the relation of any person. It should state that it is to be on the relation of some person designated. It is not the leave authorized to be made by a single judge out of court; and stands as the leave given by the judges of the supreme court in their private capacity, in the case of “ The Ohio Railroad Company v. The State, 10 Ohio Rep. 360.
    The following grounds are relied on in support of the motion to dismiss or quash the information:
    
      First. The information is not, “in the name and by the authority of the state,” nor does the relator profess to give the information in the name, or for, or on behalf, of the state.
    The twentieth section of the fourth article of the constitution provides, “ all prosecutions shall be carried on in the name and by the authority of the State of Ohio; and all indictments shall conclude, “ against the peace and dignity of the State of Ohio.” Prosecutions are either by informations or by indictments. Prosecutions by informations will include all proceedings on behalf of the state to vindicate any public right. Informations in the nature a quo warranto are quasi criminal proceedings — criminal in form, though civil proceedings in effect. Nevertheless they are prosecutions to vindicate a public right, and can not be instituted except by the authority, and at the instance of the government. See Donnelly v. The State of Illinois, etc., 11 Ill. R. 552. The Illinois constitution is similar to that of Ohio as to this. Also, The People v. The Miss, and Atlantic Railroad, 13 Ill. R. 66; also 15 Ill. R. 417.
    
      Second. The information is not verified, nor is it signed by any person officially, or even as a member of the bar. The relator, T. E. Grisell, has not recognized his appointment, or professed to proceed by the authority of it, in the information. Not only has he failed to base the information on the authority of his appointment, but in filing the information he has not even acted in his .capacity as an attorney at law or member of the bar. He simply acts as relator, and signs his name as such. He was not appointed to act as relator. The relation .could not come from a private individual. He was appointed to act as a member of the bar in the place of the prosecuting attorney. He should have acted professionally and officially. But he has acted as a private individual and 
      
      the relator as such. Now, an information can not be filed by a private individual as relator; it must be preferred by a public officer, and one acting as such or in a public capacity. It has been held, that the official signature of the attorney-general or prosecuting attorney to an information will be sufficient without verification. Acting officially and. under oath, the official signature obviates the necessity of a verification. But where the information is not signed officially, or by a person acting under oath, it ought to be verified by .affidavit. And where it does not upon its face show that it proceeds from any public authority, and no one appears in a public or official capacity, or even in a professional capacity to prefer and prosecute the information, it should be dismissed. It is well settled that an information in the nature of a quo warranto can not be instituted except at the instance of: the government. And where the information does not, upon its face, show that it proceeds from some kind of public authority, it must be dismissed. In Scott v. Purcell, 7 Blackf. R. 65, the supreme court of Indiana held an information bad because it was exhibited by the relator and not the prosecuting attorney, and because it did not commence in the name of the prosecuting attorney for and on behalf of the state, etc.
    The information does not show by what right T. E. Grisell comes in officiously to oust Marlow from the office, and give it to Ingerson. For aught that appears in the information, he is an officious intermeddler. If he had any public authority, he has not even professed to act by virtue of it. The information should have been signed by the person appearing as public prosecutor, and not by the relator.
    
      Third. This instrument, filed as an information, is not in the nature -of an information quo warranto. It omits the essential thing which gives the name to the proceeding itself, and that is, the demand that the defendant shall show by what warrant he exercises this franchise, etc. This information is in the nature of an ejectment, as it asks nothing but an ouster and restitution. It is not in the nature of a quo warranto. It does not conclude with any form of a demand for damages and due process of law against the defendant; but simply a demand for an ouster and restitution of the office.
    
      Fourth. An information must be as exact, and complete, and certain in its allegations as an indictment. It must show all the facts necessary to show a complete title to the office in the person for whom it is prosecuted,
    Now, admitting everything stated in this information to be true, it fails to show a right to the office in the relator. It avers, that the defendant has usurped the office of sheriff, etc. That, at an election, held in Ohio, on the 2d day of October, 1868, Ingerson and Marlow were the only candidates for sheriff; and that of the votes given at the election, Ingerson had a majority. This all might be true, and yet Marlow elected. The votes given at the election might not all have been returned. It is not sufficient that a candidate receive a majority of the votes cast. There must be found a majority among the votes legally returned.
    The information can not be amended. See case referred to in argument in 7 Indiana Rep. Also Cole on Informations.
    
      Fifth. An information in the nature of quo warranto can not be used as a means of contesting an election in Ohio. The constitution and statute of the state has provided the specific mode of contesting elections. See 14 Ohio St. Rep. 323, 327, Ingerson v. Berry, also, 28 Pa. St. Rep. 9, and 35 Pa. St. Rep. 263; also, 44 Pa. St. Rep. 332.
    
      William Lawrence, 0. Bowen, T. F. Grisdl, and J. I). Sears, for relator.
    
      William Lawrence, for relator, submitted the following:
    At the annual October election in 1863, the relator and defendant were opposing candidates for the office in controversy. The clerk of court and justices, who opened the poll books in pursuance of the election statute, declared defendant elected, üe was commissioned, and now holds the office. The relator claims that certain poll books were improperly rejected by the clerk and justices, which if counted would give him the office. He attempted to appeal from the decision of the clerk and justices so as to contest the election, but failed to give the notices required by the statute, and his proceeding was dismissed. Ingerson v. Marlow, 14 Ohio St. Rep. 315; ibid. 568.
    The constitution of Ohio contemplates two modes of determining the right to an office, one by quo warranto (Article 4, section 2 — Act of March 17, 1838, S. & C. Stat. 1264 — 36 vol. Stat. 68), the other by a trial of contested elections (Ar tide 2, section 21 — Act of May 3,1862, to regulate elections, 1 S. & C. Stat. 532 — 50 vol. Stat. 311).
    I maintain—
    I. That the proceeding by a contest is a special statutory remedy unknown to the common law, and even a decision thereof is not conclusive to bar an information in the nature of quo warranto.
    
    II. That the statutory contest and quo warranto are cumulative remedies, and if a decision on the contest should be held conclusive on the parties to it, yet a claimant of the office has his election of remedies — that he may refuse to contest, and resort to quo warranto.
    
    Of these in their order.
    I. It requires no argument to prove that a contest is a statutory remedy of American origin confined to Ohio, Indiana, California and perhaps a few other states. The effect of a decision on a contest depends on the terms of the statute, or on general principles, and in Ohio on the proper construction of the constitution. Since the relator here did not pursue the remedy by contest, it is not material to his case whether the decision of a contest is or is not a conclusive bar to quo vjarranto. But if the decision of a contest is not a bar — is neither conclusive on the right, nor on parties to it, then it is more reasonable to infer that the remedies are cumulative.
    
    Many considerations show that a contest does not finally decide anything.
    1. The object of the statute is not that a contest shall decide the right to an office, but for the time being to declare who is elected so a commission may issue.
    
      This is clear from the language of the statute, from its manifest purpose, and because of its omission to provide a means of enforcing an ouster or of investing the claimant with the office. The statute provides:
    
      “ That the clerk and justices shall declare the person haying the highest number of votes .... duly elected subject to an appeal to the court of common pleas.....
    
      iS And said court.....shall hear and determine the contest.”
    The duty of the clerk and justices is to “ declare” who is elected. That “declaration” is subject to appeal and contest. Somebody must officially inform the governor so that a commission may issue.
    No ultimate right is determined. That may depend on questions subsequently arising, or facts impossible then to be ascertained.
    The quo warranto statute is far different in its terms. It authorizes judgment to be “rendered upon the right of the person so averred to be entitled,” and that “judgment shall be rendered that such defendant be ousted,” etc.
    This is especially necessary where an officer is holding over against one elected to succeed him.
    2. The authorities are conclusive that a special summary statutory contest does not finally decide any right so as to oust the superior jurisdiction by quo warranto. Commonwealth v. M’Closkey, 2 Rawl. Pa. R. 369 ; State Ex Rel. etc. v. Hardie, 1 Ired. N. C. Law R. 42; Vol. 1 Rev. Stat. N. C. 568 for 1836-7; Hart v. Harvey, 32 Barb. N. Y. R. 67; Com. v. Sparks, 6 Wharton, 416; People v. B. & R. Turnpike, 23 Wend. R. 228; Burgenhoffer v. Martin, 3 Yeats Pa. R. 479; Overseers v. Smith, 2 Serg. & Rawle, 363; People v. McKinch, 23 Wend. 223; Geter v. Commrs, 1 Bay. 348. In State v. Deliesseline, 1 McCord S. Car. R. 52, 65, a statutory contest under the act of 15 Dec. 1808 (5 Vol. Stat. S. Car. 569) was had, and the decision was held to operate as res adjudicata. But the contest there was only authorized for -the candidate, whereas in Ohio “ any elector” may contest, and there is no distinction between him and a claimant of the 'office as to the effect of a judgment.
    
      3. An election contest can not be final because tbe right to an office is not merely the property of the candidate — it is the right of the people. They are interested in ousting from office all who have not been lawfully elected, and they have a right to demand that those who are elected shall discharge the' public trusts represented by their offices.
    An elector may institute a contest, but the state is the party plaintiff in quo warranto. The parties are not the same in the two proceedings. The subject matter is not the same — the issues are hot necessarily the same. A contest may be instituted by an elector and managed really so as to defeat a claimant who is not authorized to have a separate contest, for if so, there might be different and conflicting decisions.
    4. As a matter of public policy, the decision of a contest should not be final. It is limited as to the time of notice to commence it, taking proof, and hearing, all so summary that it is impossible to ascertain, to know, or- make the issues necessary to determine the real right to an office, or the merits of a controversy. The inestimable right of suffrage— the supreme source of all political power, is entitled to the protection of the supreme judicial wisdom of the state, and this the constitution intended to secure by conferring bn it original jurisdiction in quo warranto.
    
    5. In holding that the decision of a contest is not final, so as to defeat the right to quo warranto, the analogies of the practice in habeas corpus cases is followed. The decision of an inferior tribunal on habeas corpus does not bar a proceeding in a superior court involving the same controversy between the same parties. Ex parte Partington, 13 Mees. & Welsh. 684; 1 Blackstone, 84; Hurd on Habeas Corpus, 569, 516; Com. v. McCloskey, 2 Rawle, Pa. R. 384; Bell v. State, 4 Grill. 304; Russell v. Com. 1 Penrose & Watts, 82; Wade v. Judge, 5 Ala. 130; How v. State, 9 Missouri, 690; Ex parte Robinson, 6 McLean, 360; Matter of Perkins, 2 California, 424; Holmes v. Jennison, 14 Pet. 540. This point was not made in Collier’s case, 6 Ohio St. Rep. 55; nor Bushnell’s case, 9 Ohio St. Rep. 76.
    
      The same section of the constitution confers on this court original jurisdiction of habeas corpus and quo warranto. If a decision is to be regarded as res adjudícala between co-ordinate inferior tribunals, yet that can not be so as between an inferior tribunal and the supreme court, clothed by the constitution with this high jurisdiction, for the purpose, it would seem, of preventing its transfer to hands less safe. Yet if quo warranto may be partitioned out, or its jurisdiction under another name be given exclusively to inferior jurisdictions, the same may be done with the jurisdiction in habeas corpus and with all jurisdiction. In the name of imperiled personal liberty, in the name of the majesty of the elective franchise, demanding the exercise of original jurisdiction in quo warranto by this court, I protest that this may not be done. If this may be done, this court may be,deprived of a jurisdiction with which it is invested by the constitution, and that instrument made a nullity to that extent.
    II. The statutory contest and quo warranto are cumulative remedies. This is shown by many considerations:
    1. The constitution, art. 4, section 2, declares that the supreme court “ shall have original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, and such appellate jurisdiction as may be provided by law.”
    This provides for jurisdiction of two kinds, original and appellate. The appellate is only “ such as may be provided by law.” But the original jurisdiction is plenary, it is all the jurisdiction, as it existed at common law, as to the occasions of its exercise, though not necessarily in its forms. State v. Boston C. & M. R. 25 Vermont (2 Deane) R. 441. Quo warranto at common law was a “writ of right for the king [the state] against him who claims or usurps any office, franchise or liberty, to inquire by what authority he supports his claim in order to determine the right.” 3 Bla. Com. ch. 17, sec. 5; Pinch L. 322; 2 Just. 282; 2 Selwin N. P. 1169; Cole on Quo Warranto, passim.
    
    The quo warranto acts of Ohio authorize the writ “ when any person shall unlawfully hold or exercise any public office,” and declare that “'in such case judgment shall be rendered upon the right of the defendant, and, also upon the right of the party so averred to be entitled.” Com. v. Cullen, 13 Pa. St. R. (1 Harris) 133. Here is the legislative interpretation of the plenary character of the jurisdiction, and to. hold the contest is an exclusive mode in any case, contradicts the plain letter of the constitution, and the quo warranto acts, both of which treat the decision of a contest as by no means final, and certainly give the remedy by quo warranto, where there has been no contest. The statute is to be liberally construed. Com. v. Cullen, 13 Pa. St. R. (1 Harris) 133. It should be construed “ as near as may be to the common law.” Stowell v. Zouch, Plowd. 264; Miles v. Williams, 1 P. Wms. 252; Com. v. Burnell, 7 Barr, Pa. St. R. 34.
    2. The constitutional provision that “ the general assembly shall determine by law, before what authority and in what manner the trial of contested elections shall be conducted,” does not create an exclusive remedy.. Neither the constitution nor the statute so declares. In Burgenhoffen v. Martin, 3 Yeats Pa. R. 479, the elementary principle is stated, that “ the jurisdiction of superior courts is only abridged by the express negative wor,ds of a statute,” or, of course, by express negative words of a constitution.
    “ The jurisdiction of the supreme court is taken away only by express words or irresistible implication.” Overseers v. Smith, 2 Serg. & R. 363 ; People v. McKinch, 23 Wend. 223; People v. B. & R. Turnpike, 23 Wend. 228; State v. Deliesseline, 1 McCord S. Car. 52; 2 Rawle, 369; Brevard, 495; 1 Bla. 84; 2 Esp. 661; 3 Bla. 110; ex parte Anthony, 5 Pike, Ark. R. 358; Cram v. Green, 6 Ohio Rep. 29.
    The statute of Indiana authorizes an election contest, yet it is not held to exclude the jurisdiction in quo warranto. 1 vol. Rev. Stat. Ia., May 4, 1852, p. 269; Jones v. Carvers, 4 Port. Ia. 306; Governor v. Nelson, 6 Port. Ia. 496; Coffin v. State, 7 Port. Ia. 157; Gulic v. New, 14 Tanner Ia. 100; Bower v. Obsied, 2 Ia. 430. And so in California. The statute of Pennsylvania of July 2, 1839 (Purdon’s Digest, 392), authorizes a contest, but no claim has been made that it excluded any quo warranto jurisdiction.
    3. Quo warranto and contest are concurrent, and a party has an election of remedies. They fall within the principle of cumulative remedies. Thus, in Vol. I, Coke’s 2d Institute, 199, cap. 20-4, it is said:
    “This suit is intended as an action of trespass, but the writ must rehearse, and be grounded upon this statute j for it is a máxime in the common law, that a statute made in’the affirmative, without any negative, expressed or implied, doth not take away the common law, and therefore in this case, the plaintife may either have his remedy by the common law, or upon the statute $ if he bring his action of trespasse generally, without grounding the same upon the statute, then he waiveth the benefit of the statute, and taketh his remedy by the common law.”
    If a claimant contests he may waive his quo warranto, or if he' attempt to pursue both, he may be required to elect which to pursue. Coleman v. Cross, 4 B. Monroe, 268. He is not bound to appeal from the decision of the clerk and justices. A party failing to appeal, in civil cases, loses no other remedy thereby. Rex v. Robinson, 2 Barrow, 799; Stafford v. Ingersol, 3 Hill N. Y. R. 39;. Clarke v. Brown, 18 Wend. 220; Colden v. Eldred, 15 Johns. R. 220; Lang v. Scott, 1 Blackf. Ia. 405; Gooch v. Stephenson, 13 Shepley, Maine, 271; Sedgw. on Stat. & Const. Law, 38, 40, 93, 404, and cases; 1 Curwen Stat. Introd. 13; Childs’ Ex’r v. Updike, 9 Ohio St. Rep. 336; Robbins v. State, 8 Ohio St. Rep. 191; Coleman v. Cross, 4 B. Monroe, 268. The powers of the attorney general and of the prosecuting attorney were held to be cumulative under different statutes in State v. Buckland, 5 Ohio St. Rep. 216.
    The first statute authorizing an election contest is that of April 15, 1803. 1 Chase Stat. 364. Prior to that the remedy by quo warranto existed at common law, and continued after its enactment: so it was universally understood in Ohio. The contest statute introduced no negative on the common law remedy. It had not any negative words. The present statute is almost in words the same, and should receive the same construction. The constitution of 1851 was designed to continue the same concurrent jurisdictions in force. Neither the constitution nor the statutes contain negative words making either an exclusive remedy in any case. It would be quite as appropriate to hold that quo warranto is the exclusive remedy m all cases where it is properly applicable, as that the remedy by contest is in any case exclusive. What gives the one any more of an exclusive character than the other ? They should be construed in pari materia. Dodge v. Gridley, 10 Ohio Rep. 176.
    4. If it be said the remedy by quo warranto, like the jurisdiction exercised in chancery, is only resorted to when there is no other adequate remedy, the manifest answer is that an original common law jurisdiction is never taken away because by statute a new remedy is introduced. 5 Bacon Abr. 184; Bull N. P. 212; Cas. K. B. 225. In Crain v. Green, 6 Ohio Rep. 29, the chancery jurisdiction to settle and distribute estates was held to exist, notwithstanding the statutory mode of settlement. Statutory partition does not oust equity. 1 Story Eq., sec. 652. Statutory interpleader does not oust chancery. 2 Chit. Gen. Pr. 345. See Coleman v. Cross, 4 B. Monroe, 268.
    The common law rule, that quo warranto will not lie when there is another .subsisting remedy, is changed by the Ohio quo warranto statute, which gives the jurisdiction without limitation or qualification, while the civil code, sec. 570, limits mandamus to cases where there is not “an adequate remedy in the ordinary course of the law.”
    Besides, the remedy by contest is inadequate. At most it only decides the right to an office, if so much. It gives no remedy. Quo warranto does more — it decides the right, ousts the incumbent, invests the claimant, and the statute provides for costs, delivery of books, etc. As the right to commence a contest ceases, by statute, after fifty days from the election, there is, after that, no subsisting remedy but quo warranto.
    A contest can only be had at the instance of an “ elector of the county,” while quo warranto -is instituted on behalf of the people by the attorney general, the prosecuting attorney, or when directed by tbe governor, supreme court, general assembly, or a relator on leave of the supreme court, or a judge in certain cases. There may be two or more claimants against' an incumbent, and section seven of the quo warranto act provides for such case, while the contest statute does not. .
    5. As the original jurisdiction in quo warranto is conferred by the constitution, it can not be transferred, under any name, to an inferior tribunal. Ex parte Anthony, 5 Pike Ark. 358; 3 Story on Const. 1750; Scott v. Clark, 1 Clarke, Iowa R. 70, 522; 20 Ohio Rep. 613.
    The legislature might confer jurisdiction, in quo warranto, on the common pleas, and if a party proceeded there, he might waive his right to proceed in the supreme court; but it would be his right, if not thus waived, to invoke the original jurisdiction of the supreme court.
    6. The common law gives the remedy by quo warranto as claimed here. The English statutes of 4 and 5 W. & M. c. 18; 9 Anne, c. 20; 32 Geo. 3, c. 58, besides others relative to practice, did not confer the jurisdiction, but only regulated it. The Ohio statute does not confer it, but recognizes and regulates it. In some of the states the power and mode of procedure are both as at common law, while in others the practice is regulated by statute. But in all, the quo warranto “ covers all questions arising betwefn rival claimants of elective offices.” 13 Pa. St. R. 133. The common law and the Ohio statute were adopted here in view of that construction. The constitution and the contest statute do not show a purpose to make our practice an anomaly — different from all other states. The court should give to our common-law and our statute the construction which has been adopted in similar statutes in other states. Pennock v. Dialogue, 2 Peters, 1; Ingraham v. Hart, 11 Ohio Rep. 255.
    7. The principles contended for are not denied in the cases of Com. v. Carrigues (4 Casey,) 28 Pa. St. R. 9; Com. v. Leech (8 Wright,) 44 Pa. St. R. 332. They were cases to> contest the election of aldermen, in Philadelphia, under provisions in the city charter, which creates the office and provides> 
      
      a specific mode of contest, and declares it shall he final. Purdon’s Digest Pa. Laws, 390. In such case the act of 21st March, 1806, excludes the common law quo warranto, which exists by statute. Purdon’s Digest, 41, sec. 5. The office' now in controversy depends upon the constitution, the.remedy by contest is not declared final, no statute excludes quo warranto, which itself exists at common law and by the constitution.
    The Pennsylvania cases were decided under the statute of 1806, which declares:
    “In all cases where a remedy is provided, or duty enjoined, or any thing directed to be done by any act or acts of assembly of this -commonwealth, the directions of said acts shall be strictly pursued, and no penalty shall be inflicted or any thing done agreeable to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect.” Purdon’s Digest (Brightly), 41.
    This expressly excludes quo warranto., a common law remedy. The two Pennsylvania cases fall within the elementary principle that, '
    ■“ Where by statute a new right is given and specific relief is provided for the «violation of such right [in the same statute], the remedy is confined to that given ¡.by the statute.” Sedgw. on Stat. and Const. Law. 94; Smith v. Lochwood, 13 ¿Barb. 209; Dudley v. Mahew, 3 Comst. 9.
    The office of alderman was a new right created by the statMte which provide^ a specific mode of contest, and the act of .1806 excluded all common law remedies.
    But here is a quo warranto as to sheriff and other officers (Claiming offices, some of which áre recognized at common law, ¡and all elective by the constitution, not dependent for their .creation on any statute. They fall within the principle that,
    “Where a right originally exists at common law [or as I suppose by the constitution,0 aud a sheriff’s office exists by the common law and the constitution], .and a statute is passed giving a new remedy without any negative express or • implied upon the old common law, the party has his election either to sue at common law, or to proceed upon the statute.”
    The contest statute does not create the right to this office. ¡It gives a new remedy without any negative on the common daw quo warranto..
    
    If it be .said ¡the same constitution creates the office and provides for a remedy by contest, I answer, it also provides foi quo warranto — gives both remedies — and as no reason exists why one should exclude the other, they are cumulative. As quo warranto is “jurisdiction of a superior court,” it can, as already shown, be taken away “only by express words or irresistible implication.” And the rule of construction cited as to a statute which in itself creates a right and provides a specific remedy is limited to special minor rights, and at all events, has never been applied to the construction of a constitution, or held applicable to a constitutional right.
    
    8. The general assembly decides on the election of its own members. This is necessarily so. And I believe at common law quo warranto never extended to the right to a seat in parliament, and our constitutional and statutory provisions were adopted in view of that construction. And so perhaps of the governor and other officers dependent exclusively on the decision of the legislature, though in New York and other states such officers have the remedy by quo warranto going back of the certificate of election to the ballot, and in some cases back of the ballot itself. Cole on Quo Warranto, 221; Reg. v. Ledgard, 8 Ad. & El. 533; 3 N. & P. 513 S. C.; Reg. v. Quayle, 11 Ad. & El. 508; Reg. v. Grierson, T. T. 1842; Reg. v. Hilditch, 5 C. & P. 299; Reg. v. Stimpson, 2 C. & P. 415; Reg. v. Vice-Chancellor, 3 Burr. 1661; People v. Van Slyck, 4 Cowan R. 297; People v. Seaman, 5 Denio, 409; People v. Ferguson, 8 Cow. 102; People v. Cook, 8 N. Y. (4 Seld.) 67; S. C. 14 Barb. 259; 6 How. Pr. R. 448; People v. Vail, 20 Wend. 12; People v. Tisdale, 1 Doug. (Mich.) 59-65; Carpenter v. Ely, 4 Wisc. 317; Kneass case, 2 Par. Pa. R. 553; McDaniels case, 4 P. L. J. 310; 1 Wharton Pa. Dig. 706.
   Scott, J.

It is not represented, by the information in this case, that the defendant Marlow was not declared duly elected sheriff, upon.the canvass of the poll-books by the clerk and justices who were authorized by statute to open them, ascertain their results, and make an abstract thereof; nor is it denied that he received from the clerk a certificate, in proper form of his election, nor, that in virtue thereof and pursuant to statute, he was duly commissioned by the governor as sheriff of said county, took the oath of office, gave bond, and was, under all the forms required by law, inducted into the office from which it is here sought to oust him. His right to the office is denied on the sole ground that at the election held for the purpose of filling this and the county offices, the majority of votes was given, not for him, but for Ingerson.

Indeed, we are informed by counsel on behalf of the information, that the clerk and justices, rejecting a portion of the poll-books, declared Marlow, the defendant, duly elected, and that he was accordingly commissioned, and is now holding and exercising the office in virtue of such commission.

The information is evidently based on the supposition, that in a proceeding of this kind, we can go behind the commission of the governor, and the certificate of the clerk upon which the statute requires it to be issued, examine the poll books, admit parol evidence in regard to the legality of the votes therein returned, and upon such evidence, determine the result of the election, as an original question. If we can not do so, it would, manifestly, be in vain to require the defendant to answer.

Passing by all alleged defects in the information which might be amended, and all questions as to the regularity of the mode in which the proceeding was instituted, and as to the authority of the party who claims to represent the state in this prosecution, an important question arises as to the evidence by which, in quo warranto, the election of a county officer, such as sheriff, must be determined. The statute having provided a tribunal for the trial of contested elections, and prescribed a mode in which such trials shall be conducted, are the results of such elections still open to inquiry upon information in the nature of quo warranto, as though no such statutory mode of judicial inquiry and determination existed?

It is claimed, on behalf of the prosecution here, that both at common law, and by the provisions of the statute, an inquiry may be had by quo warranto, into the authority by which any person may claim to hold or exercise any public office, the functions of which he has assumed; and as the constitution of the state expressly confers on the supreme and district courts original jurisdiction in quo warranto, that jurisdiction can be, in no respect, narrowed, impaired, or limited by legislative action, and that therefore the finding and judgment of the statutory tribunal provided for the trial of contested elections, are not conclusive in a proceeding in quo warranto, in the courts upon which that jurisdiction has been conferred; or, at least, that the jurisdiction is concurrent, and that where no statutory contest has been resorted to, a full inquiry may be had in quo warranto.

On the other hand, it is claimed by counsel for defendant, that a proceeding such as the present can not be resorted to for the purpose of contesting an election in this state; and that such contest can be had only in the specific mode prescribed by statute.

As the determination of the question thus presented, in one way, must conclude this controversy, we propose to examine it, leaving the questions of practice which are raised by the pending motions to be settled, for the future, by rules which we expect to adopt at the present term.

The constitution expressly confers “ original jurisdiction in quo warranto ” upon the supreme court and the district courts of the state, and looking to these provisions alone, it might well be claimed .that such plenary jurisdiction was intended as could be exercised in that behalf at common law; though it could hardly be claimed that the mode of exercising such jurisdiction could not be prescribed and regulated by the legislature. But it is clear that the power thus conferred may be modified or limited by other provisions of the same instrument, equally express. In such case we must consider the various provisions, in pari materia, and give such construction, if possible, to each, that all may have effect.

The 21st section of the second article of the constitution imperatively requires that: The general assembly shall determine by law before what., authority, and in what manner, the trial of contested elections shall be conducted.”

In fulfillment of the solemn obligation thus imposed, we find upon the statute book, in the election laws of the state, jurisdiction specially conferred upon various tribunals to hear and determine contests in regard to the election of the different public officers, and the mode prescribed in which such contests shall be conducted. The courts of common pleas in the several counties are specially designated as the authority ” before which elections of sheriffs, and the various other county officers shall be contested and by which such contests shall be heard and determined.

The senate of the state is, by the same laws, invested with full jurisdiction to hear and determine any contest in regard to the election of governor, lieutenant-governor, judge of this court, or of the court of common pleas, and other state officers.

This legislation being not merely permitted, but enjoined by the constitution, has, in effect, the same high sanction as though it formed a part of that instrument. Jurisdiction being thus specially conferred upon other tribunals, and the mode of its exercise prescribed, it can not be inferred that it was intended by the constitution to be differently exercised by a proceeding in quo warranto, as at common law, or by the supreme court and district courts, under a mere general grant of jurisdiction in quo warranto.

Public offices in this state do not exist in virtue of the common .law. They are the creatures of the constitution and the statute. The right to an elective office, such as that of sheriff, can only be acquired by an election, pursuant to the provisions of the statute. And it is a settled rule that “ where a new right, or the means of acquiring it, is conferred, and an adequate remedy for its invasion is given by the same statute, parties injured are confined to the statutory redress.” Smith v. Lockwood, 13 Barb. 209; Dudley v. Mayhew, 3 Comst. 9; Sedgw. on Stat. and Const. Law, 94. The rule is equally applicable, upon principle, that where the statute which confers the means of acquiring a right prescribes an adequate special mode of determining, by a judicial investigation, the fact upon which the right depends, that mode must be exclusive. And it matters not, in this case, whether the means of acquiring a right to the office be supposed to be conferred by the statute or the constitution, for the statute which prescribes the special mode of contest owes its existence to the fiat of the constitution.

But it is said that .the parties here are not the same as in the statutory contest provided for in the constitution. That the latter can be instituted only by individual electors, while here, the prosecution is in the name of the state, which is not bound by the statute. It is ordinarily true that, in England, the king is not bound by a statute, unless specially named therein; but this statute, as we have seen, has its origin in the constitution; and the king, we apprehend, is bound by the constitution of the realm, and the state can not' be permitted to ignore her own organic law.

We think it was clearly intended that the state should be bound. In our system of popular government, as between candidates who are legally eligible, an absolute right of choice belongs to the electors, to be exercised according to their sole discretion, and when their votes have been canvassed, and the result publicly declared, if all the electors of the' proper district, whose will is entitled to absolute control, are satisfied with the fact thus declared, we perceive no good reason for allowing that fact to be questioned in any other quarter.

The state senate is, as we have said, the statutory tribunal before which a contest in regard to the election of governor is to be heard and determined. Now, could it have been intended, that the solemn finding and determination of that high tribunal upon the question of fact tried before it, should not bind the state as well as all her citizens ? That its judgment might be ignored, the question of fact be treated^s res integra, and be determined, perhaps differently, by a district court, in a proceeding by quo warranto, in any corner of the state ? We think not. The peace and order of the community, as well as justice to the individual whose election is contested, require that the fact of his election should not be subject to repeated judicial inquiry. To- hold otherwise would be to degrade the right of contest in the statutory mode, from that rank which gave it a place in the constitution, to a nugatory farce. Nor does the just protection of rights' or interests, either public or private, require a different holding. If the election of a county officer be called in question, as in this case, ample power is given to the court of common pleas, to inquire into, and try all questions which can become necessary to a proper decision of the case. And should that court err, either in a finding of fact, or in its judgment of the law, both the district courts and this court are open for the review and correction of all such errors. There is no reason, therefore, why the common law rule should not apply, that a judgment of a court of competent jurisdiction can not be impeached collaterally.

A similar question has more than once been brought before the supreme court of Pennsylvania, upon attempts made to inquire, by quo warranto, into the result of municipal elections in cases where a special mode of contesting such elections is provided by statute; and that court has uniformly held that an information will not lie for such a purpose; that the remedy provided by the statute must be followed, to the exclusion of the common law mode of redress, and that such statutes bind the commonwealth. Com. ex rel. Att'y.-Gen. v. Garrigues, 28 Penn. St. Rep. 9; Com. v. Baxter, 35 Id. 263; Com. v. Leech, 44 Id. 332.

We have examined the several Indiana cases cited by counsel, but do not readily perceive their bearing upon the question we have been considering; and we are not aware of any authority which conflicts with the opinion we have expressed, at least not in any state where the special mode of contest is of constitutional origin.

If the defendant, Marlow, was eligible to the office of sheriff, the certificate of the clerk of the court of common pleas of his county, that he had been duly elected such sheriff, was the proper legal evidence of the fact, which entitled him, on its production to the secretary of state, to receive from the governor a commission to fill the office (S. & C. Stat. 887); and we all concur in the opinion that such certificate can only be set aside, by means of a contest instituted by appeal to the court of common pleas, as provided by statute, and can not be inquired into by a proceeding of this kind.

Information dismissed.

Brinkerhoee, O.J., and Rannet, Wilder and White, JJ., concurred.  