Territory v. Lockwood

A proceeding in the nature of a Quo Warranto, in one of the Territories of the United States, to test the right of a person to exercise the functions of a judge of a Supreme Court of the Territory, must he in the name of the United States, and not in the name of the Territory. If taken in the name of the Territory the error may he taken advantage of on demurrer, and it is fatal. •*

The act of Congress organizing the Territory of Nebraska ordains that the executive power in and over the Territory shall be vested in a governor; that the legislative power shall be vested in a governor and legislative assembly; and that the judicial power of the Territory shall be vested in a Supreme Court, &e. And the Code of the Territorial legislature* gives the remedy of information against “ any person unlawfully holding or exercising any public office or franchise within this Territory;” providing, also, that the defendant shall “ answer such petition in the usual way; and, issue being joined, it shall be tried in the ordinary manner.” "With these provisions in force, the district attorney filed in one of the District Courts of Nebraska Territory an information in the nature of a Quo Warranto in the name of the “ Territory of Nebraska, on the relation of Eleazar Wakely,” against a certain Lockwood, to test the rights of the said Lockwood to exercise the office of an associate judge of the Supreme Court of the Territory; a court in which, as is known, the judges are appointed by the President of the United States. The information was full, explicit, and technical in its statement of the case; alleging, with circumstance, that the relator had a right to the office, and that the defendant held, exercised, usurped, and invaded, &c., without any legal warrant, &c. The defendant demurred generally. The District Court sustained the demurrer, and gave judgment in his favor. The relator took the case to the Supreme Court of the Territory, where the judgment below was affirmed. This was a writ of error to reverse that judgment The question presented for the determination of this court was, whether the petition was well brought in the name of the Territory, or whether it should not have been in behalf of the United States. The language of the Code, “any public office,” plainly embraces the office of a Territorial judge. Not only does such an officer hold an office “within the Territory,” but the whole of the judicial power of the Territory is vested in him and his associates. He is an officer of the Territory. His duties are all performed within it and concerns its people. The expression of the organic act that “ the judicial power of the Territory” shall be vested, &c., indicates that the powers belong to the Territory in its very nature; that is to say, that they are inherent in it as a political entity. The Territory is made the sole governing power within its limits, so far as its domestic affairs are concerned. All laws, we know, are enacted, and all judicial proceedings conducted in its name. The usurper of one of its offices is an offender against its dignity. The people of it suffer by the act of usurpation. It is unimportant how either the relator or the defendant claims; whether by appointment of the president, the governor, or by election from the people. Bach, in either or any case, is equally within the spirit of the Code and organic act. Territorial courts are not constitutional courts in which the judicial powers conferred by the Constitution on the General Government can be deposited. They are legislative courts, created in virtue of the general right of sovereignly which exists in the government, or in virtue of that clause which enables Congress to make laws regulating the territories belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but is conferred by Congress in the exercise of its powers over the Territories of the United States.* The Code does not contemplate a demurrer. It declares, on the contrary, that the defendant shall “answer.” But, however this may he, the demurrer is but general. The defendant thus admits himself to he an intruder into a judicial office, and rests upon the pretence that no cause of action is shown by the information, though that information sets forth the relator’s right to the office and his unwarrantable exclusion from it by the defendant in as full, clear, direct, and formal terms as are employed in any precedent to be found in any book of Entries whatever. In such a case an objection purely technical, as this is, an objection, to wit, that the name of the'United States, and not that of the Territory, should be used, will he listened to with disfavor.