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(Effect of commission.)

suspended; it requires a formal supersedeas to suspend it; the court may even issue a venditioni exponas to enable its completion. An execution issued after certiorari served, is erroneous, and perhaps void, because its issue is the act of the court to which the superior writ has been sent, and the party whose further proceeding has been stayed.

An election contest is, in some respects, peculiar; true, it is a judicial proceeding, but, so far as the court, in which it is conducted, is concerned, it terminates with the judgment or decree; no execution of the decree is entrusted to the court or is under its control. When the truth of the return is contested, the duty of the court is, to ascertain what should have been the true return and declare it; then its duty has been done. The regularity of its proceeding may be revised in the superior court, and no doubt, a certiorari removes the record in such a case; it cannot, however, operate upon the inferior court as a supersedeas, for, after a decree, there is no possible action of the court to be stayed. If it stays anything, it can only be the action of the executive in issuing a new commission, in view of it, rather than upon it, or action under the new commission, when issued, by the substantial party to the decree, in whose favor it has been made. But the issuing of a commission by the executive, after the service of a certiorari, is not disobedience to the writ, for that goes only to the judges; it is not, therefore, a contempt, as action by the judges and the parties would be; he is no party to the contest, either in form or substance. In reason, therefore, there is an obvious difference between the effect of a certiorari upon the court to which it is sent, or the parties to the judicial proceeding removed, and the executive, who has no connection with the record; nor do the authorities show that a certiorari operates upon any other than the court and parties.

We are, therefore, not prepared to hold that, on the 21st day of October 1862, after the decree declaring what was the true result of the election had been made in the court

(Effect of commission.)

of quarter sessions, the executive had not authority to issue a commission to the defendant; especially, are we not prepared so to rule, upon this motion, which is an appeal to our judicial discretion, while we are sitting only at nisi prius. The commission of the defendant is not necessarily invalid, because the election contest is pending, in the sense in which a cause adjudicated in an inferior court is said to be pending, after its removal by certiorari or writ of error to a court which is superior; had it issued one day before the service of the certiorari, but after the decree of the court of quarter sessions, and had the officer commenced his duties, no one will contend that it would have been avoided or interrupted by the mere subsequent service of the writ, any more than an execution partly executed is stayed by the service of a certiorari on the court which had awarded it; and yet, had the certiorari sued out by the complainant been four days later than it was, the election contest would be a pending proceeding, just as truly as it now is. A certiorari after judgment, like a writ of error, is, in fact, a new suit; it enables him who obtains. it to aver errors in the record removed, not to re-try the facts in this court; a judgment in it may, indeed, be followed by a new trial in the lower court, but there is no re-trial here. It is not on that account-not because the action may, in this sense, be said to be pending—that proceedings are stayed in the court where the trial was had, but it is because, in contemplation of law, its record is removed to another tribunal.

But while we do not hold that the certiorari served on the court, took away from the executive the power to issue the commission to the defendant, after the decree correcting the election returns (a power which the decree unimpeached gave him), we do hold that the service of the writ affects the defendant. He was a party to the contest in the quarter sessions, not in name, but in substantial truth; it was his right which was in controversy, and his were the fruits of the decree; upon him, therefore, the

(Effect of commission.)

certiorari may operate. When it was served and the record was removed, he had not begun to execute the duties of the office nor to act under the decree and his commission; his position is like that of a party who has an execution in his hands not delivered to the officer, when the writ comes and stays his further proceedings; his title to his commission is not taken away, but his right to proceed under it is suspended until the final decision under the revisory writ. It may be, that the decision of the supreme court, on the hearing of the certiorari, will result in setting aside the decree of the court of quarter sessions, and thus leave the original return and the commission of the complainant in full force; on the other hand, if the decree be affirmed, the right of the defendant to his commission and to the emoluments of the office, from the 21st day of October last, will be established; his title will then have commenced at the date of his commission; it does not, however, give him a present right to assume the office or interfere with its duties.

The second question is easily answered in the affirmative; the bill and affidavits show that there has been, and still is, a disturbance of the rights of the complainant, made by the defendant, no doubt under a belief of right, but still unlawful.

The remaining inquiry is, whether the case is such a one as requires the court, in the exercise of its equity powers, to grant an injunction. It is a bill preferred by an individual, asserting a personal right invaded; yet it is not to be overlooked, that it affects public interests; the office of sheriff is a most important one, and the question, which of two persons claiming it may lawfully perform its duties, is one in which the whole community is interested. We ought not to leave the matter in doubt. Though we cannot now determine finally who has the right, we can and ought to determine who is the sheriff' in fact, and prevent a conflict, until there shall be an

(Effect of commission.)

adjudication that shall terminate finally the election contest. We, therefore, feel constrained to award an injunction.

Injunction awarded.

The fact that a person has been commissioned by the governor, does not oust the jurisdiction of the court, in a contested election case; Thompson v. Ewing, 1 Brewst. 69; inasmuch as a commission issued after a proceeding instituted to contest the election, is regarded only as provisional, or as a commission, pendente lite, if the proceeding should be successful; Ewing o. Filley, 43 Penn. St. R. 384. A commission is simply evidence of a right to hold an office, gives color to the acts of the incumbent, and constitutes him an officer de facto; but it invests him with no right to the office, and is annulled and superseded by the issuing of a new commission to another, who has been legally elected. State v. Johnson, 17 Ark. 407. The election having been declared void, the commission issued by the executive, being a mere ministerial act, gives no title to hold the office. Barry v. Lauck, 5 Cold. 588. And see Hunter v. Chandler, 45 Mo. 453. In issuing a commission, however, to an elective officer, the governor is not precluded from looking beyond the certificate of election, and may determine for himself who was the person duly and legally elected to the office; and the commission, when issued, is presumptive evidence that the person holding it is lawfully entitled to the office. State v. County Court of Howard Co., 41 Mo. 247. The point decided in this Missouri case is at variance with the established principles of our government, and is but another example of the growing tendency in our country, to disregard all law but that of power.

When the seat of a member of a legislative body is contested, the house has no constitutional right to suspend the member from acting as such, until the matter of the petition has been determined. Mansfield Election, Cush. Elect. Cas. 17.

COMMONWEALTH v. COUNTY COMMISSIONERS.

In the Supreme Court of Pennsylvania.

DECEMBER TERM 1834.

(REPORTED 5 RAWLE 75.)

[Failure to elect.]

A disorder having arisen at a ward election for assessors, &c., the constable and the persons alleging themselves to have been chosen judges, adjourned the election from the usual place designated in the notice, to a neighboring house, where the relators had the highest number of votes, and were returned by the constable, as duly elected; the electors who remained at the place of election designated in the notice, elected judges and held an election, without calling in the overseers or other persons pointed out by the statute; the persons elected at this poll were returned by the election officers as duly elected: Held, that both elections were illegal; and that this being a case of failure to elect, assessors were properly appointed by the county commissioners.

The commissioners have power to inquire into the regularity of a ward election; the constable's return is not conclusive on them.

This was a rule to show cause why a mandamus should not issue to the commissioners of Philadelphia county, commanding them to receive the return of the assessment made in Locust ward, by James Leslie, Vollum and Sullivan, to pay them for their services, and to appoint as collector one of the individuals returned by them. The commissioners made return to this rule, that they had duly recognised and appointed Messrs. Rutherford, Benner and Quin, as assessor and assistant assessors of said ward.

It was stated in the return that on the 16th September 1834, Lippard, constable of Locust ward, gave legal notice that an election would be held at the house of James Hutchinson, on Friday the 3d October, for one assessor and two assistant assessors for said ward, for the ensuing year. That two sets of returns were filed in the commissioners' office, one signed by Reese, Gress and Miles, who

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