The only question presented, by this case, is, whether a quo warranto will issue on the relation of a private person ? ,It was held, in the State vs. Ashley, 1 Ark., 279; in Caldwell vs. Bell & Graham, 6 Ark., 227, and the State vs. Williams, that the writ of quo ivarranto wquld only issue on the relation . of the Attorney General, in the name of the State, in cases where the whole community are interested, and would not be granted at the instance of an individual for the determination of a private right.
The counsel for the appellant ask: “ Will any one say that the jurisdiction of this court depends upon the breath of the Attorney General ?” and in response to the question, says, “ God forbid.” In response to the query propounded by counsel, this court takes occasion to say, that the jurisdiction of this court is derived from and regulated by the Constitution of the State, but it is for the Attorney General to see whether the offices or franchises of the State have been usurped; he is the law officer of the government, and is presumed to discharge his duty. The office, in controversy, is one created by the Constitution; it is a grant of power by the people; the Attorney General is their highest law officer, and so long as the “people” do not complain, through him, of usurpation of an office or franchise, it is but fair to presume that no usurpation has taken .place. It may be asked, if this be true, how can one, entitled to an office, get possession of it, if quo toarranto is denied, or the Attorney General refuses to discharge his sworn duty ? Section 525, of the Civil. Code, declares that, “ Whenever a person 'usurps an office to .which he is not entitled by law, an action, by proceedings at law, may be instituted against him, either by the State, or the party entitled to the office.” This section furnishes the complainant, in this case, with a full and perfect remedy to assert and maintain his right to the office he claims, and neither the neglect of the Attorney General, nor a denial of jurisdiction in this court, in any manner, interferes with his remedy.
Quo warranto was invented, originally, not to determine *14which of two persons were entitled to an office, but to require the incumbent to show by what authority he was exercising or attempting to exercise the duties of an office, created by sovereign authority. The issue was between the State and the person in office; and not between two persons who claimed the right to exercise its duties. In short, quo warranto is the writ of the State and only issues at the instance of the State. It was not, nor is it now designed of used as a remedy, at law, by which individuals may contest the right to an office. The Legislature has provided a separate remedy for the determination of such a question, and the parties must seek the remedies provided for them, instead of one provided for the State.
The writ is denied and the cause ordered to be stricken from the docket. (
Gregg, J., dissenting.