Page:State v. Johnson.pdf/13

26 Ark.]  1870.]   has no title, he is simply ousted from the office, whose functions he has usurped. No penalty, imprisonment or fine is imposed, no matter what way the judgment goes.

It has been frequently held, that right of trial by jury, at common law, never extended to cases of defaulting or delinquent officers of the government. 2 Stew., 131; 6 Man., 641; Hardin's Rep., 5 ; 17 Ala., 516, and the States in which these holdings have been made, have denied a jury when demanded, on the sole ground that, in actions against public officers, the right of trial by jury did not exist at common law, if the actions were not of a criminal nature. Believing this to be the correct distinction, we are unable to see wherein the denial of a jury would contravene the right of trial by jury, as it existed at common law, or as it existed at the adoption of the Constitution. If we were to consult our own conscience, or desired to shirk the duty imposed on us by the Constitution, we should at once order a jury, to dispose of this question; but, inasmuch as neither the Constitution nor the Legislature has provided this court with a jury, or the means of obtaining one; and, inasmuch as there would be no court in the State, with jurisdiction, to protect the officers of the State from usurpation, if this court were to refuse to exercise the jurisdiction conferred, we feel it to be our duty, under all the circumstances, to overrule the motion for a jury.

Motion for a Jury
[On the 20th of February, 1871, a motion for a jury was filed, under XIV. amendment to the Constitution of the United States.]

MC, C.J.

We see nothing in this motion that was not really disposed of in the first demand for a jury. We have carefully examined the opinion of Judge B submitted by counsel for respondent, and can come to no other conclusion than that he made a hasty and ill-advised obiter dictum, in the case referred to; and, as an evidence of this fact, we direct attention of