EWING V. THOMPSON.

In the Supreme Court of Pennsylvania.

OCTOBER TERM 1862.

(REPORTED 43 PENNSYLVANIA STATE REPORTS 372.)

[Effect of commission.]

Where the appointing power is in the electors, the governor has no choice but to commission the person elected, and that done, a vested right is consummated in the appointee, which nothing but judicial decision can take away or authorize the governor to recall.

If, on a decree correcting the election returns, the governor issue a new commission, the party holding it will be enjoined from interfering with the office, pending proceedings of review in an appellate court.

This was a motion for a special injunction on a bill filed by Robert Ewing against John Thompson. The plaintiff had, on the 27th November 1861, been commissioned by the governor, as sheriff of the city and county of Philadelphia; before the issuing of this commission, his election to that office had been contested by a petition filed in the court of quarter sessions of Philadelphia; which court, on the 18th of October 1862, decided in favor of the contestant, that he had been duly elected to the office. Mr. Ewing, thereupon, sued out a writ of certiorari to remove the proceedings into the supreme court for review. Pending proceedings in the appellate court, the governor commissioned Mr. Thompson, and on his attempting to take possession of the office, this bill was filed praying for an injunction to restrain him from so doing.

J. E. Gowen and Hirst, for the plaintiff.

F. C. Brewster, Thayer and Gilpin, for the defendant.

STRONG, J., delivered the opinion of the court. Three prominent questions are raised by this motion: they are

(Effect of commission.)

Has the complainant a legal right to the office of sheriff of the city and county of Philadelphia? Does the defendant unlawfully invade, or threaten to invade that right? If he does, is the invasion of such a character as to call for the exercise, by this court, of its preventive power?

On the 27th day of November 1861, the governor of the commonwealth issued a commission to the complainant, reciting that by the election returns of the October election of that year, it appeared that he had been chosen sheriff of the city and county of Philadelphia, and authorizing him to perform the duties and enjoy the privileges of said office for the term of three years, from the second Tuesday of October 1861, if he should so long behave himself well, and until his successor should be duly qualified; under this commission, he entered upon the duties of the office, and he has, in fact, acted hitherto as sheriff. If this commission be still in force, beyond controversy, he has a legal right, not only to the office, but to its undisturbed enjoyment; this we do not understand to be controverted. The next stage of the inquiry, therefore, is, whether anything appears which invalidates the commission. The defendant produces a commission from the governor to himself, dated the 21st October 1862, reciting that it appeared from the returns of the same election, held in October 1861, that he had been chosen. sheriff of the said city and county, and authorizing him to hold, exercise and enjoy the said office of sheriff, with all its rights, fees, perquisites, emoluments and advantages, and to perform all its duties, for the term of three years, to be computed from the second Tuesday of October 1861, if he should so long behave himself well, and until his successor should be duly qualified. The two commissions are for the same office, for the same term, and both recite the same election returns; the second does not profess to be founded upon any amended return; it makes no allusion to any contest of the election; and it does not, in terms, revoke, annul or supersede the commission previously

(Effect of commission.)

issued to the complainant.

effect?

What, then, is its legal

Had there been no contest of the election of sheriff, or of the election returns, it could not be maintained, that the commission issued in October 1862, annulled, vacated or superseded the commission given to the complainant in November 1861. The power of the governor to revoke a commission once issued to an officer, not removable at the pleasure of the governor, may well be denied; even where he has the power of appointment of such an officer, an appointment once made, is irrevocable; much more, it would seem, is a commission issued by him incapable of being recalled or invalidated by himself, when the appointing power is located elsewhere, and when his act, in issuing the commission, is not discretionary with him, but is only the performance of a ministerial duty. Under the constitution, the governor does not appoint a sheriff, and he has no choice as to whom he will commission; the appointment is made by the electors, and it is the duty of the chief executive to commission the person whom they have designated according to the forms of law; when he has done that, his duty is performed, and a vested right is consummated in the person commissioned, a right which nothing but judicial decision can take away or authorize him to recall. The observations of the supreme court of the United States in Marbury v. Madison, 1 Cranch 137, bear forcibly upon this subject; that was an application for a mandamus to compel the delivery of a commission for an office to which the applicant had been appointed by the president of the United States, and for which a commission had been made out but not delivered; the office was one which the law created, and of which it fixed the duration of tenure by the officer, but under the constitution, the president had the appointing power. Chief Justice Marshall, in delivering the unanimous opinion of the court, made the following observations: "Where an officer is removable at the will of the executive, the circumstance

(Effect of commission.)

which completes his appointment is of no concern, because the act is at any time revocable, and the commission may be arrested, if still in the office; but where an officer is not removable at the will of the executive, the appointment is not revocable and cannot be annulled; it has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made; but having once made the appointment, his power over the office is terminated, in all cases where, by the law, the officer is not removable by him; the right to the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it." In that case, it seems to have been held, that neither the appointment nor the commission could be withdrawn.

The executive may, undoubtedly, be authorized by law to revoke a commission, or supersede it for cause, though he have not the power of appointment, and though the duration of the tenure may be determined by the legislature. Whether he could, when the tenure, as well as the mode of appointment, is defined by the constitution, is perhaps not so clear, unless the commission has issued to one who was not elected or appointed. But the law has made the return the only evidence of an election, in the first instance, and conclusive until it has been corrected or shown to be false by a judicial determination. The defendant cannot stand, therefore, on his commission alone; he is compelled to show that the executive was authorized to issue it, before he can contend successfully that it has superseded that previously granted to the complainant. This brings us to inquire whether the proceedings which have taken place in the court of quarter sessions empowered the governor to grant the commission, and thereby supersede that which was issued upon the original election return. These proceedings are not referred to in the second commission, but if they conferred a power, the

(Effect of commission.)

commission must be held to have issued under it, rather than to be void.

Prior to the date of his commission, a contest of the complainant's election and of the return thereof, had been initiated in the court of quarter sessions, under the provisions of the act of assembly of 2d July 1839, and in that contest, a decree was entered on the 18th day of October 1862, that the complainant was not elected, but that the defendant had received a majority of the votes given, and that he was duly elected; on the same day, a certiorari was sued out of this court by the complainant, to remove the record of the contest in the court of quarter sessions, and it was served. The effect of that writ was, to stay further proceedings in the court below, and to remove the record of the case into this court. That such is the effect of a certiorari, except in cases where the legislature has made a different rule, is the doctrine of all the cases; it is not itself a writ of supersedeas, but it operates as one by implication; originally, in fact, and now always, in theory, at least, it takes the record out of the custody of the inferior court, and leaves nothing there to be prosecuted or enforced by execution. Very many of the English as well as the American authorities are collected in Patchin v. Mayor of Brooklyn, 13 Wend. 664; there are very many others, all holding a common law writ of certiorari, whether issued before or after judgment, to be, in effect, a supersedeas; there are none to the contrary. In some of them it is ruled, that action by the inferior court, after the service of the writ, is erroneous; in others, it is said to be void and punishable as a contempt; they all, however, assert no more than that the power of the tribunal to which the writ is directed is suspended by it; that the judicial proceeding can progress no further in the lower court. It is not so clear, either in reason or in authority, that collateral action is erroneous or void; if an execution has been issued upon a judgment, before the service of the certiorari, the power of the sheriff to go on, under the execution, is not