
    CALLAHAN versus THE STATE.
    1, Semble — The Statute of’1820, providing for tlie reservation of novel and'dif* •'ficult questions, ■in-'criminal cases, was intended to' exclude misdemeanors.
    2,'Cases of a civil nature, betwoeirthe State and atnindividual, are removable of right, into the Supreme Court, by writ of error.
    3, The judgment of a Circuit Court, in dismissing a Clerk from office, may be ' inquired'irito, on writ'of error.
    4. Such procee'ding may be properlyiprosecuted in thename of the Stale.
    5. A Circuit .Court, under the act of 1819, cannot legally dismiss a Clerk of such court from office, unless charges be exhibited against him, and the facts be ’■íbunctby a jury. ’
    In this case Callahan, having been the -Clerk of the Circuit Court of Pickens-.county, was dismissed’ fronr office, ;by the presiding Judge of that court, under the authority of the act of 1819: and took a writ of error to reverse the-decision. ¡A motion was here made to dismiss the writ of error, on the ground that the plaintiff was not entitled to the writ in a case like the present. The Court overruled this motion and reversed the.cause, on grounds which are shown in the opinion.
   Taylor, J.

In this case a motion has been made to dismiss the writ of error, which it is necessary to dispose of before examining the merits,

It is contended in support of this motion, that the State is not properly made a party; that the contest is altogether between the plaintiff in error and present incumbent of the office, who was appointed by the Judge of xhe Circuit court, after the removal of the plaintiff; and that the remedy for the plaintiff, if he has been aggrieved, is by an information in the nature of a quo warranto.

To this it has been correctly replied, .that no proceeding could be had against the-present incumbent, while the judgment which vacated the office, by dismissing the plaintiff, remained in force: that it is necessary to reverse that judgment before the plaintiff could contest the right of another. The judgment of the Circuit court was on a matter of controversy between the State and the plaintiff in error; when it was first instituted it was either with no party but the defendant, or the State constituted the plaintiff; and I do not see how it can be controverted that the latter was the case.— The third section of the act of 1819, entitled “ an act .specifying the causes and manner of removing clerks,” declares, “ that all charges against clerks for misbehavior in office, shall be exhibited to .court in writing, and the court shall direct the facts to be tried by a jury, and on conviction thereof, such clerk shall be fined or removed from office, as the court of which he is clerk shall think proper.” By whom are the charges to be exhibited? Certainly by the State, through her prosecuting officers. It is for the public interest that such officers as clerks should discharge their duties correctly, and, although the citizen is often injured through their misfeasances and nonfeasances, yet the appointing power, whose confidence has been abused, is viewed as the injured party. When the office is vacated by the removal of the incumbent, it reverts back to the State, and is -again to be filled by her. For these reasons the State was correctly viewed by the defendant as a party to the proceedings.

It is unnecessary to go into a minute examination of the cases in which a writ of error may be sued out as a matter of right in this State. In England it would seem the subject has a right to it in all prose-cations for misdemeanors. Chief Justice De Gray, in Crosby's case, said, “in all cases except treason and felony, I think a writ of error is grantable by rightand our general assembly of 1820, when making the provision which authorises the Judges of the Circuit court, to reserve questions which are “novel and difficult,” may have entertained a similar idea, when they confined the Circuit courts, in the exercise of this power, to “ criminal cases';” which term would seem to exclude misdemeanors.

But it has been uniformly held by this court, that cases of a civil nature, between the State and an individual, such as suits upon recognizances, &c., are properly remove able into this court, by writ of error, and this would seem to come more nearly within that class, than either the class of crimes or misdemeanors; and unless this court takes jurisdiction' of the case in this way, it is difficult to tell how it is to be brought before us; and surely the Circuit court has no power to remove an officer who has been regularly elected by the people, without there being some mode known to the law, by which the judgment can be re-examined.

[f this case cannot be removed into this court by writ of error, I should very much question, whether it could be got here at all. It is not questioned but the Circuit court had jurisdiction of the subject matter.' That is a court of record of general jurisdiction, and the only one in which cases of this kind can" be tried. We believe the writ of error to have been the right of the plaintiff in error in this case.

We come now to exariftne, whether there is error in the judgment.

It appears, that, for several causes,' which are recited in the record, the Judge proceeded to remove the clerk, without giving him a jury .trial — and, indeed, without any charge having been exhibited against him. The third section of the act of. 1819, “specifying the causes and manner of removing' clerks/’ expressly requires, that “ charges shall be exhibited,” and that the “facts shall be tried by a jury.” The judgment of the Circuit court.is preceded by the recital .of several acts_ of contumacy, which the plaintiff in error, is alleged to have committed; but, it does not appear how these acts were proved to the court. It is argued, that we must >p résumé, they were done and said — for, many of them consist of declarations, which he is stated to have made, in~the presence of the court; and, if so, as a jury would, under the statute, only have been authorised to determine the fact of guilt, or-innocence, for the information of the c.ourt, and the punishment would have rested with the latter, the facts were self-evident, and the court could proceed to punish.

There are, however, severalobjections to this reasoning. In the first place, it is not stated, in the record, that the acts were committed in the view of the court; and, it is not contradicting the record, to suppose they were not. It would be carrying the doctrine of presumption beyond all precedent, to determine that we would presume this was the case, because the court must be supposed to have done right, until the contrary appears. Here, the contrary does appear — for, we must suppose, it would have been stated in the record, that the acts charged were committed in the view of the court, if the fact had been .so. •• ■ .

But, if this had expressly appeared, there would still have been error, as the statute leaves no alterna-.live, but positively requires, that charges shall be exhibited, and the facts shall be found by a jury. A heavy penalty was inflicted upon the plaintiff in error, by the judgment of the court; before this could "be done, he had a constitutional,' as well as a statuta-ry right to the verdict of a jury of his peers. The judgment is, therefore, reversed. 
      
       3Wils283
     