TERRITORY

v.

LOCKWOOD

Mr. Justice SWAYNE delivered the opinion of the court.

The writ of Quo Warranto was a common law writ. In the course of time it was superseded by the speedier remedy of an Information in the same nature.* It was a writ of right for the king.† In the English courts an information for an offence differs from an indictment, chiefly in the fact that it is presented by the law officer of the crown without the intervention of a grand jury.‡ Whether filed by the attorney-general or the master of the crown office, and whether it relates to public offences or to the class of private rights specified in the statute of 9 Ann. ch. 20, in relation to which it may be invoked as a remedy, it is brought in the name of the king, and the practice is substantially the same in all cases.§ Any defect in the structure of the information may be taken advantage of by demurrer.ǁ In this country the proceeding is conducted in the name of the State or of the people, according to the local form in indictments, and a departure from this form is a substantial and fatal defect.*

In Wallace v. Anderson, † tbis court said, “ that a writ of Quo Warranto could not be maintained except at the instance of the government; and as this writ was issued by a private individual, without the authority of the government, it could not be sustained, whatever might be the right of the prosecutor or the person claiming to exercise the office in question.” In the case of the Miners’ Bank v. United States, ‡ on the relation of Grant, the information was filed in the name of the United States in the District Court of Iowa Territory. The sufficiency of the information in this respect does not appear to have been questioned. A State court cannot issue a writ of mandamus to an officer of the United States. “His conduct can only be controlled by the power that created him.”§ The validity of a patent for land issued by the United States “ is a question exclusively between the sovereignty making the grant and the grantee.”ǁ

Tbe judges of tbe Supreme Court of .the Territory of Nebraska are appointed by tbe President and confirmed by tbe Senate of tbe United States. Tbe people of tbe Territory have no agency in appointing them and no power to remove them. Tbe Territorial legislature cannot prescribe conditions for tbe tenure or loss of tbe office. Such legislation on their part would be a nullity. Impeachment and conviction by them would be futile as to removal. Tbe right of tbe Territory to prosecute such an information as tbis would carry with it tbe power of a motion without tbe consent of tbe government from which tbe appointment was derived. Tbis tbe Territory can no more accomplish in one way than in another. The subject is as much beyond the sphere of its authority as it is beyond the authority of the States as to the Federal officers whose duties are to be discharged within their respective limits. The right to institute such proceedings is inherently in the Government of the nation. We do not find that it has been delegated to the Territory. We think the demurrer was well taken.

Judgment affirmed with costs.

*

† 7 Comyn’s Digest, p. 190, Phila. ed., 1826; Tit. Quo War. A. ‡ 2 Hawkins’ P. C., chap. 26, § 4.

§ Cole on Informations, 65, 113; Rex v. Francis, 2 Term, 484 ; 4 Blackstone’s Commentaries, 312.

ǁ Regina v. Smith, 2 Moody & Robinson, 109; Regina v. Law, Id. 197.

* Wright v. Allen, 2 Texas, 158; Wright v. The People, &c., 15 Illinois, 417; Donnelly v. The People, &c., 11 Id. 552; Eaton v. The State, 7 Blackford, 65; Comm. v. Lex & H. T. Co., 6 B. Monroe, 398.

† 5 Wheaton, 292.

‡ 5 Howard, 213.

§ McClung v. Silliman, 6 Wheaton, 605.

ǁ Field v. Seabury et al., 19 Howard, 332.