Page:State v. Johnson.pdf/22

302   Rh   would determine the rights of the parties? If the latter discretion and power cannot he exercised, the right to determine the case should be held in abeyance and await legislative action. See 38 Mo. (7 Wright) 539.

But we are of opinion that where the fundamental law authorizes and empowers a superior court to hear and determine a cause, the grant carries with it the incidents necessary to carry out that power, and that the usual modes of trial, as understood and regulated by the common law, may be adopted to ascertain the necessary facts in the case; 1 Tenn., 363; and that while the court responds to issues of law, a jury should respond to issues of fact; and if no mode of trial has been prescribed, the common law is in force and should be pursued.

This is said to be unlike an information in the nature of a quo warranto, wherein a party may demand a jury trial.

We are aware that anciently, under the common law, there were proceedings in the nature of a quo warranto, so-called, prosecuted by the crown officer, upon which the accused, if convicted, was subjected to punishment as well as ouster from office. These were criminal informations or prosecutions, and differed from the suit by quo warranto, which had for its leading object to determine the respondent's right to the emoluments and franchises of an office. But the forms and proceedings by quo warranto were so cumbersome and fraught with such disadvantages that it was abandoned by the English courts as far back as the date of Queen Anne; and an information in the nature of quo warranto, adopted for the very purpose of the ancient writ—the trial of the right to an office—and most of the American States pursue, by statute, a similar remedy to try the right of a claimant to an office.

Hence, in looking over the precedents of trials, they are generally upon such informations in the nature of quo warranto, but are, in substance, the same as quo warranto, each being for the distinct purpose of trying the right to an office; and we must look to the substance of the proceedings, and not to the name merely. In informations in the nature of quo warranto, as