¿Tan. 28.
Gibson, C. J.The writ of quo warranto under the Act of 1836, is not more a matter of right than is the quo warranto information under the statute of Anne. The legislature has spoken guardedly on the subject. “ Writs of quo warranto mat be issued by the Supreme Court,” and “writs of quo warranto mat be issued by the Common Pleas,” is language so circumspect as to convince us that the intention was to give the same control over the writ which the Court had exercised over the information. The object was to combine in it all that was valuable in the ancient writ, with all that was convenient and proper in the quo warranto information. The Constitution provides that the Executive may remove a judge on the presentation of a legislative address; yet, on a memorable occasion, Governor McKean—a great authority— who had been the first Chief Justice under the Constitution of 1790, had the noble independence, against a gush of popular passion, to disregard it. The obvious intent of the legislature was to put the substance of the information into the form of a writ to be issued at the discretion of the Court.
Now it is well known that an information at the suggestion of a relator was always preceded, in this Court, by a rule to show cause, as it is in the Queen’s Bench at this day. The Court itself stood as an inquest, between the accuser and the accused. No man would submit to be the dispenser of corporate patronage, if nothing else were between him and vexatious prosecution, than the magnanimity and justice of the displaced officer or disappointed applicant. The highest magistrate in the government, or the lowest individual in the community, may not be put to answer before he has had the inculpatory evidence submitted to an inquest; in the one case the House of Representatives, in the other, a grand jury; and it would be strange if the law did not give the first magistrate of a great municipal corporation the same protection. The code of the freeman gave it to him, and the representatives of freemen have not taken it from him. Whatever change was made in matters of form, the legislature held fast to the substance of that jurisprudence which is the only sure foundation of rational liberty. Speaking *370thus, I do not forget that the English practice, in this particular, is founded on the words of the statute of Anne; but our own practice borrowed front it, was adopted as a part of our peculiar common law, after it had been proved, by use in the English Courts, to be convenient, just, and good.
The practice under our statute, however, has been wrong. The writ has inadvertently issued on the filing of the suggestion, and consequently improvidently; so that it would be impossible to resist a motion to quash for that reason alone. But the ground of the prosecution may, at the same time, be examined as if the case stood on a rule to show cause. The eye of the Court had not been directed to the irregularity, but henceforth it shall be avoided.
Now a Court will refuse its leave to issue a quo warranto writ, wherever it would have refused its leave to file a quo warranto information. Before the accession of Lord Mansfield to the chief-ship of the King’s Bench, it was the practice to file almost of course; but in Rex v. Wardroper, 4 Burr. 1964, he put his hand on it, saying'that “the stat. 9 Ann. c. 20, had a view to the speedy justice to be done against the usurpers of offices in corporations, as well as to quiet the possession of those who had right; and that act,” he said, “does not leave it to the discretion of the officer (the master of the crown office), as it was before, but puts it in the discretion of the Court; therefore the Court must exercise a discretion. It would be very grievous if the information should go of course, and it would be a breach of trust in the Court to grant it as of course.” In Rex v. Dawes, Ib. 2022, the same was said in substance ; and in Rex v. Sargent, 5 T. R. 457, Lord Kenyon approved of it. There are several cases in which leave to file was refused, though there was a clear defect in the incumbent’s title. Thus, in Rex v. Parry, 6 Ad. & Ell. 810, where no answer was given to an objection to it, the Court refused even a rule, because no fraud was imputed; because no mischief appeared to have been done, and because the object of the relators appeared to be a dissolution of the corporation. In Rex v. Bond, 2 T. R. 767, as well as in Rex v. Trevanen, 2 B. & A. 479, it was said that leave will not be given when the circumstances induce a suspicion of the relator’s motive: Rex v. Trelawney, 3 Burr, 615; Rex v. Midlecoat, 2 Barnard. 221; Reg. v. Archdall, 8 Ad. & Ell. 281, and some other cases, are to the same general effect.
What mischief then has been done in this instance by the choice of an ineligible mayor, if he be so ? and who are they that come *371here to -complain of it ? They do not pretend that he does not discharge the duties of the office with integrity and ability; or that the interests of the corporation arc jeoparded by an irregular or improper exercise of his functions. All the corporators but two, are satisfied with him. A constituency of a hundred thousand souls are willing to dispense with a provision in the charter for their benefit. The councils, the chartered guardians of their rights, have not moved; the corporate functionaries have not moved; and the unsuccessful candidate has not moved. Only two corporators demand a scrutiny; and who are they ? It would be too much to say they are actuated by public spirit, or even by their own interest. They were dismissed from office, not for partisanship, but, as appears in the affidavits, for personal habits that unfitted them; and they could not expect to regain their places should the respondent be ousted. There is but one appetite to which the prosecution can be referred; and to the gratification of it, a Court will never lend itself. It would waste its time and the public money, as well as disturb the public repose, did it interfere for a defect of title so unproductive of consequences. In Rex v. Brown, 3 T. R. 574, it was said by Mr. Justice Ashurst, that “ when the application is made to disturb. the local peace of the corporation, it is right to inquire into the motives of the party, to see how far he is connected with the corporation.” I take it for granted, though it does not appear in the proofs, that the relators are entitled to vote at the charter election; but their present interest in the event, whatever it may have been while the question of patronage was an open one, is merely theoretic.
Another matter which weighs with mo—but as it was not pressed at the argument or brought up at consultation, I speak only for myself—is that it is far from clear that the defendant’s possession is not entirely legal. He was sent by this very corporation beyond the limits of the city proper, to execute the duties of a corporate office; and it would be a severe application of the law of domicile to make his acceptance of it a disqualification for two years to come. A distinguished counsel who has argued for him, was not thought to have lost his domicile here by his residence with his family as American Minister near the Court of St. Petersburgh; and I believe no greater consequence has been attributed to the residence of a federal officer in the District of Columbia. The doctrine seems to be that if the office was irrevocably conferred for life, the law fixes the domicile at the place where the functions are to be performed; *372but that,- if it be temporary or revocable, the presumption is against a change: Phillimore on Domicile, 61-2.
The decision of the preceding point, renders the decision of the. others unnecessary.
Writ quashed.
Coulter, J., dissented, and gave his reasons at some length; but the Act of Assembly forbids their publication here.