delivered the opinion of the court:
On a former day of the present term, the attorney for the state and cx-officio attorney general, upon the affidavits of Charles Rapley and William Cummins, then read and filed with the clerk, moved the court for a rule on Chester Ashley, Roswell Beebe, Elijah A. More, James DeBaun, Richard C. Byrd, William W. Stevenson, and James L. Dawson, to appear and show cause why an information in the nature of a quo warranto should not be filed against them, for usurping the office of directors of the principal bank of the Real Estate Bank of the State of Arkansas.
After the motion was made, and the argument in support thereof commenced, Chester Ashley, one of the persons against whom said- rule is asked, voluntarily appeared, and by leave of the court, was heard in opposition to the motion.
In considering this application, the first question to be decided, is, has this court original jurisdiction of an information in the nature of' a quo warranto ?
In support of the motion it is argued, that a writ of quo warranto and an information in the nature oí a writ of quo warranto, are convertible terms, used in legal parlance to express the same thing; referring alike to the same proceeding, and prosecuted at common law to to accom- ^ plish precisely the same objects; that the convention, in adopting the ^erms ase^ ^le constitution, intended to embrace (he proceeding by information in the nature of a quo warranto, as well as the proceeding by writ of quo warranto, and therefore the proceeding now sought to be instituted and prosecuted here is within the jurisdiction expressly granted to the constitution: and if it is not within the power expressly granted to issue writs of quo warranto, and to hear and determine the same; it it is a remedial writ, and is clearly within the terms “ and other remedial writs,” as used in the constitution.
In opposition to the motion it is insisted, that this is a court of exclusively appellate jurisdiction; that if it has original jurisdiction in any case, it does not extend to an information in the nature of a quo war-ranto, which is strictly a criminal proceeding. That such an infortntion differs essentially from the ancient writ of quo warranto. That they were originally designed for different pur poses, although in modem practice the same objects may in part be effected by either.
In the order in which the court has viewed this subject, it is first necessary to determine whether the proceeding by writ of quo war-ranto, and that of information in the nature of a quo warranto, are regarded by common law as being one and the same thing.
A writ of quo warranto at common law was a high prerogative writ, in the nature of a writ of right for the king, against him who obtained -.or usurped any office, franchise, or liberty of the crown, and also lay in case of nonuser or long neglect of a franchise, or misuser or abuse of it; 3 Bl. Com. 262.; Sel. N. P., 4th Am. Ed., 322.
The authorities cited and referred to in the briefs, fully prove that it was a civil proceeding, prosecuted by the king’s attorney general at the suit of the king, without any relation whatever, to try the mere civil right to some public office, franchise, or liberty of, or belonging; to the crown; which was claimed or exercised by some person in op-, .position to, and in violation of (he prerogative light of the sovereign and in case of judgment for the defendant he was allowed the franchise,, but when the king had judgment it was “ that the franchise enpiatur in-, manum domini regis
It results, therefore, from the nature of the proceeding, and,'the objects it was designed to accomplish, that it could only be prosecuted, for the king, by his attorney general; the king, in his high corporate character, being alone interested or concerned in the ohly matter to be determined by it; that is, whether the mere right to the office, franchise, or liberty existed in the person claiming or exercising it by grant or otherwise, or whether it belonged to the crown, no grant thereof ever having been made, or if granted being forfeited, and if the right was in the crown, the same never having been granted out, or the grant made being forfeited, the franchise was in either case restored to the king, that he might grant it out again to whomsoever he should please: and no fine was ever imposed, or punishment inflicted on the defendant.
As to the precise period of time when this ancient writ fell into disuse, or the more modern proceeding by information in the nature of a quo warranto was introduced, we are not informed, nor is it material.
Informations as the basis, or institution of a criminal prosecution, are said to have existed co-eval with the common law itself, but as a mode of investigating and determining civil rights between private parties, they seem to owe their origin and existence to the statute of 9th Anne, which expressly authorised the proceeding in all cases of intrusion into, or usurpation of corporate offices in corporate places. And although inform-ations in the nature of a quo warranto, were exhibited by the king’s attorney general long prior to that time, the remedy given thereby was never extended beyond the limits prescribed to the old writ, and could, therefore, only be granted for some usurpation on the prerogative rights of the crown, and it is said there is no precedent of such information having been filed or allowed at the instance, or on the relation of any private person previous to such statute of 9th Anne, nor could they be so exhibited afterwards, except in the cases mentioned in the statute, which neither increased or abridged the authority of the attorney general on that subject.
This proceeding by information, when originally introduced, like all other criminal informations of that period, was designed principally to punish offenders who were guilty of usurping the prerogative rights of the crown; yet uponjjconviction or disclaimer, the right of the crown being thereby established, there was, besides the fine, a judgment of ouster against the defendant, or that the franchise be seized into the king’s hands, thus affording incidentally, a civil remedy for the king. And hence it is that all the authorities, ancient and modern, speak of the proceeding as being properly a criminal method of prosecution. It is, however, said to have been long since applied to the mere purpose of trying the mere civil right, seizing the franchise or ousting the wrongful possessor, the fine being nominal only. And, therefore, it was ur§e<^ *n argument that it must be considered as a substitute for the ancient writ of quo warranto, which came into existence upon its disuse, and in 1607, fully occupied its place in the common law, and consequently, that the convention must be understood as referring ^ wjjen use the term writs of quo warranto, rather than the antiquated and obsolete proceeding by writ of quo warranto, which it cannot be supposed to have been their intention to revise.
To this argument we do not assent. The introduction of the latter, did not subvert or destroy the former; they may have had, and we do not doubt that they did have a contemporaneous existence; their primary objects were essentially different, and the mode of proceeding in them materially varied, while they were in some respects attended with different results, and the form of the judgment was never the same; one was strictly a civil, the other properly a criminal method of proceeding. We are, therefore, of the opinion that the proceeding by writ of quo warranto and information in the nature of a quo war-ranto as known to and regarded by the common law, are so different from each other, that they cannot with propriety be classed together, or comprehended by one common name or description.
This brings us to the first and most important question presented by the motion, that is, the question of jurisdiction. The duties of this court to exercise jurisdiction where it is conferred, and not to usurp it where it is not conferred, are of equal obligation. The constitution, therefore, and the law are to be expounded without a leaning the one way or the other, according to those general principles which usually govern the construction of fundamental or other laws.
This court is created by the constitution, and its jurisdiction and powers specially declared and limited by the same authority. The constitution is the paramount law of the land, and the original jurisdiction conferred and restrictions imposed by it, can neither be increased or diminished by any legislative power in the state, and all laws contrary thereto are void.
The second section of the sixth article of the constitution declares, M that the Supreme Court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which, shall be coextensive with the state, under such restrictions and regulations as may from time to time be prescribed by law. It shall have a general superintending control over all inferior arid other courts of law and equity. It shall have power to issue writs of error and supersedeas, certiorari and habeas corpus, mandamus, and quo warranto, and other remedial writs, and to hear and determine the same. Said judges shall be conservators of the peace throughout the state; and shall severally have power to issue any of the aforesaid writs.”
It was obviously the intention of the constitution, by the first clause of the section above recited, to invest the Supreme Court with a general appellate jurisdiction, co-extensive with the state, and to confine its powers exclusively to subjects of this description; except in cases where it is directed by the constitution itself to exercise original jurisdiction. *
The next clause confers upon the Supreme Court a general power of control over all inferior and other courts.
And the third clause gives to the Supreme Court, u power to issue writs of error and supersedeas, certiorari, and habeas corpus, mandÉn-us, and quo warranto, and other remedial writs, and to hear and determine the same.” And it is relied upon as vesting in this court orinal jurisdiction of the case now under consideration, and it is admitted by all, that there is no other provision to be found in the constitution, upon which any claim of original jurisdiction for this court can be based.
In construeing the powers conferred by this clause of the constitution, the objects and purposes for which these powers were conferred must be kept constantly in view; and it must not be forgotten that this is only part of a system, or frame, or fundamental law of government, established by the people of the state according to their own free pleasure and sovereign will. And that the powers, which are conferred, the restrictions, which are imposed, the authorities, which are exercised, the organization and distribution thereof, which are provided, are in each case for the same object, the common benefit of the governed, and not for the profit or digoity of the rulers.
In directing the organization of the judiciary departtaent,itwas the object of the convention to provide for the whole people of the state, through the several judicial tribunals, the most free, ample, speedy, cheap, and convenient administration of justice: for which purpose, various tribunals of different grades were ordained; and one or more of them established in every county and township .in the state. And a jurisdiction was conferred upon each by the constitution corresponding in interest and magnitude with their respective grade and dignity, in such manner that the whole judicial power and authority of the gov-eminent became vested in some one or another of the courts or justices of the peace.
The respective jurisdictions and powers thus conferred upon these several tribunals, is in every respect, special,limited and defined by the constitution; and so ordered, arranged, and distributed, as to avoid all conflict of authority between them, and to constitute a regular gradation of powers, each having a control and a revising-authority over such others as are inferior to it; and to producé a harmonious action between the several branches ©f the whole system.
Having thus stated what we understand to have been the object and design of the convention in the arrangement and organization of the whole judiciary department of the government, as apparent from the s(picture of the constitution, .and viewed as a whole, and also in its component parts: such construction must be put upon the powers which ar^Jjconferred, and the restrictions which are imposed upon each of the several judicial tribunals, as is most consonant to the general intention and design of the framers of the constitution, and will be most effectual in enforcing and carrying into execution their expressed will.
That the will of the convention may be more apparent, we will here briefly state the jurisdiction and powers conferred and the restrictions imposed by the constitution upon each of the several tribunals, in which collectively is vested the whole judicial power of the state.
By the fifteenth section of the sixth article of the constitution, exclusive original jurisdiction of all matters of contract, (except in actions of “covenant) where the sum in controversy is of one hundred dollars or under, is expresly conferred upon a justice or justices of the peace. And the justices of the peace are expressly prohibited from exercising jurisdiction in any case, “ to try and determine any criminal case or penal offence against the state,” but they may enquire of offences committed, and commit or admit to bail the offender, taking recognizance returnable to the proper court having jurisdiction of the case.
By the ninth section of itcs same article, jurisdiction is expressly given to the county courts, “in all matters relating to county taxes^ disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.” And by the tenth section of the same article, “such jurisdiction in matters relative to the estates of deceased persons, executors, administrators, and guardians, as may be prescribed by law, until otherwise directed by the general assembly, is given to the judge of probate.”
The third, fourth, fifth, and sixth sections of the same article, prescribe and limit the jurisdiction and powers of the circuit courts, and bestow upon them “ original jurisdiction over all criminal cases which shall not be otherwise provided for by law; and exclusive original jurisdiction of all crimes amounting to felony at common law; and exclusive original jurisdiction of all civil cases, which shall not be cognizable before justices of the peace, until otherwise directed, by the general assembly; and original jurisdiction in all matters of contract, where the sum in controversy is over one hundred dollars,” and give to them “ superintending control over the county courts, and over justices of the peace,” and declare that “ they shall have power to issue all the necessary writs, to carry into effect their general and specific powers, and vest in them jurisdiction in matters of equity, until the general assembly shall deem it expedient to establish courts of chancery.”^
From this view of the structure and organization of the whole judiciary department, and also, of its component parts, and the distribution of jurisdiction and power to the several members or branches thereof, it appears manifestly, to have been the first great object of the convention, to confer upon the Supreme Court, as the final tribunal, to interpret, pronounce, and execute the law, to decide controversies, and enforce rights; powers and jurisdiction of an appellate nature only; and to leave with the inferior tribunals the first or original.cognizance of cases and controversies between private parties, as well as all controversies in which the state might be a party, or otherwise interested, in which the sovereignty, or sovereign rights, powers, and franchises of the state are not involved; but in cases involving the civil rights of the sovereign power of the state, affecting vitally its character, and the proper administration of the government itself; in which the whole people, and every individual member of the community, has a direct, immediate, and most sacred interest, when the exercise of a public right or public franchise is the subject matter of controversy, the convention appears to have entertained a different view, and to have deemed it a proper subject to be investigated and determined in the first instance before the highest judicial tribunal in the state;; and with this view they authorised the Supreme Court, to issue “writs of quo warranto,” and to hear and determine the same, thereby conferring upon this court, in such cases, original jurisdiction.
-^is conceded by all that this court cannot take original jurisdiction of the present controversy under the authority given- to it to issue writs of error, supersedeas, certiorari, habeas corpus, and mandamus, they being wholly inapplicable to the case in the form in which it is now presented. And this court has already determined, in effect, that the present proceeding is not within the power granted to “issue writs of quo warranto;” this being a proceeding of a very different nature, not included in that description.
We will now examine what jurisdiction' or power this court can derive from the term, “ other remedial writs,” as used in the constitution. The terms here used are general, and their application is left indefinite. Did the convention intend thereby to authorise this court to issue every writ of a remedial nature known to the law, and to hear and determine the same? If they did, their declaration that this court “shall have appellate jurisdiction only, except in cases otherwise directed by the constitution,” as well as their special grant of powers, to issue certain enumerated writs, each of which is of a remedial nature, is wholly unmeaning, if not positively absurd; and beside that, it would produce a direct conflict of authority between the several judicial tribunals, and involve them in the utmost confusion. It would destroy every'vestige of harmony in the whole system, and virtually repeal every other grant of judicial power made by the constitution. It would draw to.this forum original jurisdiction co-extensive with the state, of every civil controversy; for it must be observed, that in respect to the sum or amount involved, there is no restriction whatever imposed by the constitution, in any case in which this court can exercise original jurisdiction; therefore, if it can, under any authority derived from this general grant, take original jurisdiction of any case, it may of all cases falling within the same general class. These consequences are clearly not within the object and intention of the convention, but in opposition to both. And it is a rule founded upon the dictates of common sense, admitted by all jurists, that in construing a constitution or fundamental law of government, no construction of a given power is to be allowed, which plainly defeats or impairs the avowed objects.
If,- therefore, the words are fairly susceptible of two interpretations according to their common sense and use, the one of which would defeat one or all of the objects for which it was obviously given, and the other of which would preserve and promote all, the former interpretation ought to be rejected, and the latter to be held the true interpreta-
The terms “ other remedial writs,” as before remarked, are indefinite, and may embrace a greater or less number, in proportion to the objects and purposes to which they are intended to be applied, and they might be applied to almost every purpose, with the single qualification, that it shall be in a proceeding of a remedial nature, as contradistinguished from proceedings of a criminal or penal character, which by the language used are expressly excluded. The terms used, must therefore, receive such a construction as will promote, rather than defeat the objects of the grant, or the general objects of the convention.
The context, and every other part of the whole instrument which relates to the organization of the judiciary, and the distribution of the judicial power, must be looked to in determining the power given 'by this general indefinite grant. These have all been carefully and critically examined by the court, and from them it appears satisfactorily, that it was the intention of the framers of the constitution to limit and restrict the Supreme Court in the exercise of original jurisdiction, to such cases as the writs therein specially enumerated would apply, and that the power to issue other remedial writs, was intended to embrace only such other writs as might be properly used in the exercise of appellate powers, or the power of control over inferior or other courts, expressly granted by the constitution. And such, in every point of view( in which they can be considered, is in the opinion of the court, the only legitimate, true, consistent, sensible, and practicable interpretation which they can receive.
It therefore results from the view token of this subject by the court, that the Supreme court cannot, under any power conferred upon it by the constitution, exercise original jurisdiction in any case wh^re the proceeding is, or must necessarily be of a criminal nature; its original jurisdiction being expressly limited and restrained by the constitution, to such matters of a civil nature as may be properly brought before the court, by some one of the writs expressly enumerated in the constitution; and the proceeding by information in the nature of a quo warranto, beingproperly a criminal proceeding, this^court cannot entertain origi-nai jurisdiction of it. And for this reason, the motion in this case must J fee denied and the rule refused.
The court does not, therefore, deem it necessary or proper, to express at this time, any opinion upon the question raised and argued at the bar, Up0n i-jie facts presented in this case.
The motion is denied, and the rule refused.