Ewing v. Thompson

• Decision Date: 01 November 1862
• Citation: 43 Pa. 372
• Court: Pennsylvania Supreme Court
• Parties: Ewing <I>versus</I> Thompson.

Page 372

43 Pa. 372

Ewing versus Thompson.

Supreme Court of Pennsylvania.

November 1, 1862.

THIS was a bill in equity filed by Robert Ewing in the Eastern District, on a motion for a special injunction before WOODWARD, J., at Nisi Prius. Unable to hear the case at Philadelphia, in consequence of the commencement of the October term in the Western District, the application was continued to October 29th 1862, when it was heard before a full bench at Pittsburgh.

M. Russell Thayer, for defendant, argued that the governor had the right to revoke the complainant's commission.

C. Gilpin, for defendant, objected to the motion that the certiorari could not interfere with the defendant's commission.

William L. Hirst, for complainant, contended that this was an attempt to evade the effect of the certiorari. He cited Marbury v. Madison, 1 Cranch 137.

The opinion of the court was delivered, November 1st 1862, by STRONG, J.

Three prominent questions are raised by this motion. They are, 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 is 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 in the inquiry therefore is, whether anything appears which invalidates the commission. The defendant produces a commission from the governor to himself, dated October 21st 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 issued to the complainant. What then is its legal effect?

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 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 this case it seems to have been held, that neither the appointment nor the commission can be withdrawn. The executive may undoubtedly be authorized by law to revoke a commission or supersede it for cause, though he has 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 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 July 2d 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. The 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 farther 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 a certiorari, the power of the sheriff to go on under the execution is not suspended. It requires a formal supersedeas to suspend it. The court may even issue a vend. ex. 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 of 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 intrusted 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...