Wright v. Allen

delivered the opinion of the court.

We can see no error in the proceedings on the trial of the contested election between the appellant and appellee, before the chief justice and commissioners of Yictoria county; the examination seems to have been conducted in accordance with *160tbe statute directing tbe mode of trying contested elections-And we should affirm tbe judgment on the merits, but there' is an additional reason for its affirmance. The suit is not conducted in tbe name of tbe state, nor its prosecuting officer, but it is in the name of Wright, suing in his own name. The' writ of quo warranto before the statute of Ann, could only-be sued out in the name of the attorney general on the part of the crown. We have no statute in this state extending the right to the citizen to sue out this writ, and consequently it should be in the name of the state, by the prosecuting officer. In Wallace v. Anderson, 5 Wheat. 291, the supreme-court of the United States decided that an information for & quo wa/rranto to try title to an office cannot be maintained but. at the instance of the government;

The judgment is affirmed.