Page:State v. Johnson.pdf/24

304   Rh   quo warranto, as a common law right, saying that the State might proceed in the equitable form under their statute, provided the right of trial by jury should not be interfered with, clearly indicating that they recognized no power in the Legislature to deprive the respondent of a jury trial; and how much more should we regard this right when guaranteed by our Constitution and laws.

In the case of the ''Commonwealth, ex rel. Jackson v. Smith, 45 Pa. sec. 59, the Supreme Court say: "This was a proceeding founded on petition of Isaac Jackson, et al., against Smith et al.,'' praying that the process of Taw be awarded, etc.; that "defendants show by what authority they claim to have, use and exercise the liberties, duties and privileges of said office. On this petition a writ of quo warranto issued as prayed for." The defendants, by plea, denied the election of the relators, and claimed that they were duly elected; to which the relators replied that the defendants were not duly elected, and thereupon issue was joined; the case was tried before J., and resulted in a verdict for relators, etc.

In the case of the Attorney General, rel., v. Lindsey, 4 George (Miss.) 508, the court say, that, a quo warranto and an information in the nature of a quo warranto are the same. Under the modern practice both are but suits at law, to determine a right to office. See, also, 38 Mo. 539.

In Indiana, in the case of the Bank of Vincennes v. The State, in a suit of an information in the nature of quo warranto, various issues were made up, and they were submitted to a jury for a trial. This was no proceeding to have the bank convicted, fined or imprisoned, but a civil suit to determine whether or not she, as a corporation, could exercise certain privileges claimed by her, and that learned court treated the verdict as it would in other cases at law; 1 Blackf., 269 ; and in the case in 38 Mo., referred to, the court refused to allow the case heard before them, because no provision had been made by law for a jury trial. These cases show how other courts proceeded to determine a right to the franchises of an