RESPUBLICA v. WRAY, 3 U.S. 490 (1799)

MARCH TERM, 1799.

THE Defendant on the 1st of June, 1798, had been appointed treasurer for the County of Cumberland, “for three years, to commence on the 5th of June following;” but upon a suggestion of improper practices in procuring the appointment, the Attorney General obtained a rule to shew cause, why an information in the nature of a writ of quo warranto should not be filed against him.

In support of the rule, affidavits and office papers were produced, with a view to shew, that the Defendant was in embarrassed circumstances; and that he had procured the vote of one of the County Commissioners, under an assurance, that he would soon resign the office of treasurer, as he only wished to be appointed to it, in order to promote his election as Sheriff of the county. There was, likewise, an ineffectual attempt to prove that the commissioner, who had thus voted, and the Defendant, were not citizens of the United States: And, in point of law, it was objected, that the appointment was void ab initio, being made to commence in futura.

The rule was opposed by Dallas and M`Kean; and the opinion of the court in the absence of the CHIEF JUSTICE, was delivered by

SHIPPEN, Justice.

The present is the first instance, that we recollect, of an application of this kind in Pennsylvania; and on opening the case, it struck us to be within the 10th section of the 9th Article of the Constitution, which declares, “that no “person shall for any indictable offence, be proceeded against “criminally by information,” except in cases that are not involved

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in the present motion. But, on consideration, it is evident, that the Constitution refers to informations, as a form of prosecution, to punish an offender, without the intervention of a grand jury; whereas an information, in the nature of a writ o quo warranto, is applied to the mere purposes of trying a civil right and ousting the wrongful possessor of an office[*] .

Since, therefore, there is some evidence (however slight) of improper conduct, we do not think, that it would be right to refuse an opportunity for a jury (who are the legal judges of the weight of evidence) to determine, whether it is sufficient to vitiate the Defendant’s appointment of County Treasurer. And, at the same time, the points of law, that have been suggested, may be maturely considered and decided.

The rule made absolute[†] .