I concur in the opinion of the chief justice,, to the effect, that the statutory provisions involved in this-case cannot, and were not designed to, trench upon the power-of the Supreme Court by quo warranto, that they are merely-a part of the electoral machinery, and, as such,- are valid.
But with regard to the trial by jury, my opinion is, that/ the legislature has given to the parties a right to such a mode-of trial. I do not think that the constitution secures that-right in controversies like the present, but the manifestation: of legislative purpose to afford it seems to me plain.
The statutory jurisdiction is conferred, not upon a judge,, but upon the Circuit Courts, and the ordinary method of 1 trying issues of fact in these courts is by jury. Section 107 i directs “ that the proceedings shall be similar to those in an ¡ action at law, so far as practicable," and trial by jury is not at: all impracticable in these contests. Indeed, to some of the issues which may be raised under section 101, that mode of trial is peculiarly appropriate.
. I think, however, that the parties may, as they may and' frequently do in common law actions, waive their right to-*446trial by jury and proceed to trial before the judge alone, and ¡that such a waiver exists in the present case.
I therefore concur in the advice given to the Circuit.