I concur in the part of the opinion holding that quo warranto is a proper remedy to challenge the authority of a person claiming to act on behalf of the public and to possess official powers under the law. It was expressly so held in Howie v. Brantley, 113 Miss. 786, 74 So. 662, Ann. Cas. 1917E, 723; and State ex rel. Collins v. Jackson, 119 Miss. 727, 81 So. 1. Apart from these decisions, however, the petition contains sufficient allegations to support a writ of prohibition, and forms of action are immaterial so long as the substance exists in the pleadings and the court has jurisdiction. Hemingway's Code 1927, section 526, Code 1906, section 729. The circuit court has jurisdiction both of quo warranto and of prohibition, and it is immaterial what the pleading is called so long as the substance exists. In 16 Encyc. Pl. Pr., page 1104, it is said:
"A pretended court, having no lawful jurisdiction whatever, may be restrained by the writ, when, in fact, no such court has been established," citing Ex parte Roundtree, 51 Ala. 42; State v. McMartin, 42 Minn. 30, 43 N.W. 572, and Fleming v. Commissioners,31 W. Va. 608, 8 S.E. 267.
I am unable, however, to agree with the majority opinion in the construction placed upon the county court act. It is true that section 6, chapter 131, Laws of 1926, is involved and not clear in its meaning, but I think when the whole act is taken together, and the purpose of the legislature to establish a new court, under certain conditions, for the welfare of the public, is considered, that the court below was wrong in holding that the county court had never become effective in Lee county. Section 1, chapter 131, Laws 1926, section 725, Hemingway's Code 1927, provides: "In and for each county of the state which has a permanent population of exceeding thirty-five thousand inhabitants, or, not having such a population, *Page 666 has an assessed valuation of real and personal property exceeding seventeen million dollars, and in either event having a municipality therein of five thousand or more inhabitants as shown by the federal census of 1920, there is hereby created . . . an inferior court to be known as the county court." The section then sets out the jurisdiction, and the following sections fix the practice and procedure, and method of appeals from such court, and then section 6 was enacted providing for determination as to what counties such courts should exist in, and when the act would become effective in such counties. Had section 1 stood alone, or not been modified by section 6, it is clear that the act would have become effective at once on passage, and that the governor would have had the power to appoint a judge for such court in each county having the required population. Section 6 provides for the qualifications of the county judge, saying they shall be the same as for the circuit judges and chancellors, and that he shall be elected in the same manner as such circuit judges and chancellors, and fill his office for the same term, and fixes the salary of the county judge. It then provides: "It shall be the duty of the governor to determine and declare by public proclamation on or before the first day of May, 1926, in what counties of the state the county court under this act, will exist, and in each of the counties so proclaimed a county judge shall be nominated and elected at the judicial election of 1926, and the county court shall be in existence, and the term of the office of the county judge shall commence on the first Monday in January, 1927, and not in any event before that date." This is a clear and definite fixing of the beginning of the operation of the law, it being expressly provided that it shall not be in force prior to January, 1927. Courts in existence and judges elected prior to that time were qualified to begin and hold terms of court in such counties on January 1, 1927, and they were not authorized to begin before that date. The act *Page 667 does not provide on the January 1st following the election of the judge, but fixes a specific date. The statute then proceeds, saying: "And in 1930, and every four years thereafter as counties become eligible, by election provided for in this section, to come under this act, the governor shall so determine and proclaim with like effect as appertains to those proclaimed in 1926. On determining population the governor shall not be confined to the federal census, but may resort to such data and means as shall seem to him proper, and his decision shall be final after any judge has been nominated or elected thereunder."
The proclamation of the governor in 1926 had the effect to establish the fact, beyond dispute, that the county contained the necessary population prescribed by law. His proclamation could not be disputed, and the county court act became applicable to that county. It was then provided that an election should be held and a judge elected, which judge should not take his office until the first Monday in January, 1927. The second part of the statute quoted does not make the governor's proclamation conclusive, he not being confined to the federal census, but is left to determine from any proper source the information. When his proclamation was issued the fact had been determined that the population of the county was sufficient for the first section to become effective. The statute expressly provides that vacancies in the office of county judge shall be filled in the same manner as in the offices of circuit judges and chancellors. Under section 103 of the constitution the governor has the power to fill vacancies temporarily until an election shall be held.
In my opinion, when the governor found the facts to exist, his proclamation would have a prima-facie validity, and the condition would exist until disproven by evidence. In other words, the office of county judge would come into being and would continue to function until challenged in a legal manner and evidence produced to *Page 668 satisfy the court that the county did not have the required population. There is no pretense that the governor was not right in his findings of fact. The preliminary report of the census shows he was correct, and there is no authority in this act for suspending the operation of the law, after the governor has ascertained the facts, until the first Monday in January, 1931. The law does not say so, and the provision of the preceding part of the section fixes the first Monday in January, 1927, for county courts to come into existence, and this provision is not carried forward into the latter part of the section. It must be presumed that the statute intended to provide for the public needs in expediting the administration of law, and when the conditions come into existence, then, under section 1 of the act, the county court is in existence. Its operation has not been suspended except during 1926. There is nothing in the language of section 6 of the act, section 730, Hemingway's Code 1927, that carries to my mind any idea of suspension of the functions of this court. Its need is just as urgent prior to 1931 as during and after that year.
Section 6 also provides for counties not having the required property to come under the provisions of that act, to provide for the office of county court therein by an election, which if carried, shall be certified to the secretary of state, and the governor will then proclaim the existence of such court in such county, but it does not provide that pending the election a person may not be appointed to fill the office. The preceding part of the section, however, prescribes that vacancies shall be filled in the same manner as vacancies in the office of circuit judges and chancellors. Those offices have always been filled by preliminary appointments pending an election. The court is supposed to continue in existence and to function in the administration of justice from the beginning of its creation. The necessary population having been found by the governor, and there being no dispute as to *Page 669 this finding being correct, the people are entitled to have the court function at once for the disposition of business that may be lawfully brought therein.
Suppose no contest had been made, and the court proceeded and functioned during the remainder of the present year, would all its proceedings be absolutely void? It seems to me that it could not be so held, yet the legal effect of the majority opinion is to render void absolutely all proceedings had in the county court prior to the order of the circuit court adjudging it not to be in existence.