Opinion of the Court-Ailshie, C. J. wealth v. Jones, 10 Bush (Ky.), 725. The court in that case had under consideration the question of a legal disqualification to hold an office and the power of a contesting board to finally determine such question. The court said: "To admit that a contesting board may determine finally as to what constitutes a legal disqualification for office would be to decide that the legislature, instead of confining these tribunals to the discharge of executive duties, and to the determination primarily of mere questions of fact, had, in disregard of the distribution of the powers of government, existing by virtue of the first article of the constitution, created a high judicial tribunal-a court with power and authority to determine finally and conclusively questions of individual rights arising under the constitution-and provided that it should be composed exclusively of high executive officers. "It is a matter of great difficulty to draw the exact line of demarcation between executive and judicial powers, and of still more difficulty to define with accuracy how far executive officers, in the discharge of executive or ministerial duties, may bind the other departments of government by the exercise of quasi-judicial functions. But we regard it as an indisputable proposition that where the inquiry to be made involves questions of law as well as fact, where it affects a legal right, and where the decision may result in terminating or destroying that right, the powers to be exercised and the duties to be discharged are essentially judicial, and are such as cannot constitutionally be delegated to or imposed upon executive officers." That court concluded by holding that an ascertainment and determination of the legal disqualification of a person to hold office "is essentially judicial," and that while the board might, in the first instance, pass upon it, that it would still be open to the courts for final consideration in case it became necessary to resort to the courts in order to carry out the order, determination or decision of the election board. (Dillon's Munic. Corp., 4th ed., sec. 201.) As touching the principle involved see, also, Cummings v. State of Missouri, 4 Wall. 277, 18 L. ed. 356; In re Garland, 4 Wall. 333, 18 L. ed. 366. Idaho, Vol. 14—41 Opinion of the Court-Ailshie, C. J. Counsel for appellant argued that since the complaint in this proceeding presents all the facts necessary to be pleaded in an action in the nature of quo warranto under sees. 4612 to 4619, that he is entitled to maintain the proceeding, although it was not brought in the name of the state or by the attorney general. Counsel's argument appears reasonable and sound, but is successfully met by the statute itself. Sec. 4612, Rev. Stat., provides as follows: "An action may be brought in the name of the people of the state against any person who usurps, intrudes into, holds or exercises any office or franchise, real or pretended, within this state, without authority of law. Such action shall be brought by the district attorney of the proper county, when the office or franchise relates to a county, precinct, or city, and when such office or franchise relates to the state, by the attorney general; and it shall be the duty of the proper officer, upon proper showing, to bring such action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, held or exercised without authority of law. Any person rightfully entitled to an office or franchise may bring an action in his own name against the person who has usurped, intruded into, or who holds or exercises the same." It will be noticed that the action must be brought in the name of the people of the state against the person who is usurping, intruding into or holding the office without authority of law, and must be prosecuted either by the district attorney or attorney general, as the case may be. The last sentence of the foregoing section provides the only instance in which the action may be prosecuted in the name of an elector, and that is a case where the person claiming to be rightfully entitled to the office himself may bring the action in his own name against the intruder or usurper. The latter provision was evidently added to the section for the purpose of enabling one who was appointed to an office, or for any cause was not in position to contest the election, to maintain his action directly against the person who is unlawfully holding the office and exercising the functions thereof. In the present case, the action is not prosecuted in the name of or on behalf of Opinion of the Court-Ailshie, C. J. the people of the state, nor is it prosecuted by any person claiming himself to be entitled to the office, nor does he make any showing that he has at any time applied to or requested the attorney general to bring the action against respondent, nor does he show any refusal on the part of the district attorney or attorney general to take the necessary action, nor has he ever applied to the court for leave to prosecute the action on behalf of the people. He has therefore failed to bring himself within the purview of the statute. It is true that in certain cases where the public prosecutor or attorney general refused to bring the action on proper application being made to him, an elector or private party has been granted leave in the discretion of the court to maintain the action as relator on behalf of the people. Such an application, however, is addressed to the sound discretion of the court. Such permission was clearly never applied for or obtained in this case. In considering the right of a private relator to maintain an action in the nature of quo warranto, such as is authorized by sec. 4612 of our statute, High on Extraordinary Legal Remedies, 2d ed., p. 472, says: "The principle is now firmly established, that the granting or withholding leave to file an information, at the instance of a private relator, to test the right to an office or franchise, rests in the sound discretion of the court to which the application is made, even though there is a substantial defect in the title by which the office or franchise is held. In the exercise of this discretion, upon the application of a private relator, it is proper for the court to take into consideration the necessity and policy of allowing the proceeding, as well as the position and motives of the relator in proposing it, since this extraordinary remedy will not be allowed merely to gratify a relator who has no interest in the subject of inquiry. The court will also weigh the considerations of public convenience involved, and will compare them with the injury complained of, in determining whether to grant or refuse the application." (Paine on Elections, secs. 877-880.) For an exhaustive consideration of the authority and control of the attorney general over proceedings in quo warranto, see State v. Gleason, 12 Fla. 210. The Opinion of the Court-Ailshie, C. J. soundness of the principles above announced is clearly apparent upon a moment's reflection. To allow any and every citizen to commence an action against any public official to oust him from office at any time he may see fit, whether for private and personal revenge or the public weal, would be most disastrous, dangerous and prejudicial to the public service. In some communities and under certain conditions, they might keep a public officer engaged most of the time defending his right to the office instead of discharging the public business. This remedy was created for the benefit and protection of the public in its governmental and sovereign capacity, and for the benefit of the community at large, rather than for the gratification, satisfaction or protection of any particular individual other than one himself entitled to the office. The law-making power, in recognizing the right and prescribing the remedy to inquire into the conditions and circumstances under which one claims to hold an office, had the clear and unquestionable authority to also designate the party or parties who might invoke this remedy and the conditions under which it might be applied. It might be argued in reply to this position that the legislature saw fit to allow any elector to contest the election of an officer, and that such right or privilege on the part of every elector has not proven disastrous or detrimental to the public good. The answer to that, however, is that a contest must be instituted within twenty days after the canvass of the election returns. While the privilege is extended to all electors, the time within which it must be exercised is limited to a very short period, and that period has generally expired before the case of any contestant has been heard, so that ordinarily only one contest is filed against any candidate. On the other hand, the right to proceed by information is open throughout an official's entire term of office. In the light of the foregoing investigation and determination, we conclude that the proceeding, being an election contest, was brought in a court that had no jurisdiction of the subject and that the demurrer was properly sustained. We are also of the opinion that it could not be properly recog Opinion of the Court-Ailshie, C. J. nized or maintained as an information under sec. 4612, Rev. Stat., for the reasons hereinbefore stated. We have been urged by the eminent and distinguished counsel on both sides in this controversy that whatever view we may take of the jurisdictional question just considered, we also pass upon and define the terms "celestial" and "patriarchal" marriage as they are used in the above-quoted section of the constitution. We appreciate the fact that this case. might be determined and disposed of by us on the jurisdictional question alone. On the other hand, the demurrer raised the sufficiency of the complaint, and particularly in respect to its charging defendant with celestial and patriarchal marriage, and the demurrer was sustained generally by the trial court without specifying upon which ground. Both the jurisdictional question and the sufficiency of the complaint have been fully and exhaustively argued, both orally and by briefs, and the questions are directly raised and have been fully presented to the court. Under that condition of the proceeding, we are inclined to the belief that we should pass upon this latter question and that our decision thereon would. be a judicial expression as distinguished from obiter dictum (Buckner v. Chicago M. & N. W. Ry. Co., 60 Wis. 264, 19 N. W. 56; Florida Cent. Ry. Co. v. Schutte, 103 U. S. 118, 6 L. ed. 327; Kane v. McCown, 55 Mo. 181), and would be binding upon the court in any future litigation involving the construction of these terms as employed in the constitution. In view of these considerations, and of the high attainments and professional standing of the respective attorneys in this case, and their request and stipulation made in open court for a decision on this branch of the case, and in the light of the further contention made by them that the question involved is of such general public importance that the views of the court of last resort ought to be speedily given thereon, the court has consequently examined the matter with more than usual care and diligence, and we briefly express the conclusion reached by our research and investigation. In the first place, it is urged by appellant and admitted by respondent that sec. 3, art. 6 of the constitution is self |