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TERRITORY V. LOCKWOOD, 70 U. S. 236 (1865)

U.S. Supreme Court

Territory v. Lockwood, 70 U.S. 3 Wall. 236 236 (1865)

Territory v. Lockwood

70 U.S. (3 Wall.) 236


A proceeding in the nature of a quo warranto in one of the territories of the United States to test the right of a person to exercise the functions of a judge of a supreme court of the territory must be in the name of the United States, and not in the name of the territory. If taken in the name of the territory, the error may be taken advantage of on demurrer, and it is fatal.

The act of Congress organizing the Territory of Nebraska ordains that the executive power in and over the territory shall be vested in a governor, that the legislative power shall be vested in a governor and legislative assembly, and that the judicial power of the territory shall be vested in a supreme court &c. And the code of the territorial legislature [Footnote 1] gives the remedy of information against "any person unlawfully holding or exercising any public office or franchise within this territory," providing also that the defendant shall "answer such petition in the usual way, and, issue being joined, it shall be tried in the ordinary manner."

With these provisions in force, the district attorney filed in one of the district courts of Nebraska territory an information in the nature of a quo warranto in the name of the "Territory of Nebraska, on the relation of Eleazar Wakely," against a certain Lockwood, to test the rights of the said Lockwood to exercise the office of an associate judge of the supreme court of the territory; a court in which, as is known, the judges are appointed by the President of the United States. The information was full, explicit, and technical in its statement of the case; alleging, with circumstance, that the relator had a right to the office, and that the defendant held, exercised, usurped, and invaded &c., without any legal warrant &c. The defendant demurred generally. The district court sustained the demurrer, and gave judgment in his favor. The relator took the case to the supreme court of the territory, where the judgment below was affirmed. This was a writ of error to reverse that judgment.

Page 70 U. S. 237

The question presented for the determination of this Court was, whether the petition was well brought in the name of the territory, or whether it should not have been in behalf of the United States.

Page 70 U. S. 238

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