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CHAPTER XIII.

COMMISSIONS-THEIR EFFECT AND REVOCA

TION.

The rights conferred by commissions and the power of the governor to revoke them, in cases of officers chosen by the people, were considered by the Supreme Court of Pennsylvania in the case of Ewing v. Thompson, 43 Pennsylvania State Reports, 372. Ewing had been commissioned by the governor as sheriff, having been returned elected. Before his commission was issued, Thompson, his opponent at the election, had commenced a contest which was subsequently decided in his favor. The judgment of the quarter sessions rendering this decision, was removed, by certiorari, to the Supreme Court, and while the cause was pending in that tribunal, the governor revoked the first commission and issued another to Thompson. The Supreme Court held that this act of revocation by the governor did not give the person to whom the second commission was issued, the right to assume the office or interfere with its duties, until the question had been finally adjudicated upon. While the certiorari did not take away from the governor the power to issue the commission to Thompson, the service of the writ affected the

latter; it did not take away his title to the commission, but it suspended his right to proceed under it until the final decision under the revisory writ. It was also held that where the appointing power is in the electors, the governor has no choice but to commission the person elected, that being merely a ministerial duty, and, that done, a vested right is consummated in the appointee, which nothing but a judicial decision can take away or authorize the governor to recall. It was further held that, had the second commission been issued before the writ of certiorari was served, but after the decree of the quarter sessions in favor of the contestant, and had the officer commenced his duties, the commission would not have been avoided by the subsequent service of the writ. In such case the act of revocation of the first commission by the governor and the issuing of the second, would have been done in conformity to a judicial decision at the time unquestioned and unappealed from.

1. Ewing v. Thompson, 43 Penna. S. Rep., 372. "The power of the gov ernor," says the court, "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 power 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." Quoting Marbury v. Madison, 1 Cranch, U. S. Rep., 137.

In another case the principle is stated to be that a commission issued after a proceeding instituted to contest an election is regarded only as provisional.1 The commission is presumptive evidence of the election of the holder; it gives color to the acts of the incumbent, and makes him a de facto officer; 3 but his election having been declared void by a competent judicial tribunal, the commission gives him no title to hold the office,1 and it is annulled and superseded by the issuing of a new commission to the person decided to have been legally elected.5

In The State v. Johnson, 17 Ark., 407, the facts were that Johnson was, upon the first count, declared elected mayor, and commissioned by the governor. His opponent, Rogers, contested the election before the board of commissioners having jurisdiction in the case, who decided, upon hearing, that Rogers had a majority of the votes cast and was entitled to the office, and gave him a certificate accordingly. Upon this certificate the governor commissioned Rogers. Johnson not surrendering the office, the state brought a quo warranto. The appellee (Johnson) pleaded his election, as first declared, and his commission. The state replied, setting forth the contest, the decision of the commissioners that Rogers 1. Ewing v. Filley, 43 Penn. S. R., 384.

2. State v. County Court of Howard, 41 Mo., 247.

3. State v. Johnson, 17 Ark., 407.

4. Berry v. Lauck, 5 Cold., 588.

5. State v. Johnson, 17 Ark., 407, supra.

had a majority, the certificate to that effect, and the commission issued to him. To this there was a demurrer, which was sustained in the circuit, and the state appealed. On the appeal the judgment on the demurrer was overruled, the court saying that the party commissioned "derives his authority as an officer, not from the proclamation of the judges, not from the certificate of election, not from those abstracts made out for the governor, and not from the commission, but from the free choice and election of the people, not the people in the popular sense of those words, but from the people who were competent and qualified electors, when the votes were polled and the election held." As to the force and effect of the second commission, the court said that as soon as the contestant was commissioned in accordance with the adjudication had, the commission first issued

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was virtually destroyed, cancelled and suspended,” the holder was an usurper if he continued to act, and quo warranto to oust him would lie.

In Wanmack v. Holloway, 2 Ala. Rep. (N. S.), 31, the language of the court is this: "We think it will not admit of doubt that, whenever the constitution provides for the election of any officer, he derives his right to exercise the particular office from the election; the commission from the executive is only the evidence of the right. If one who has no right is commissioned and acts, he exercises a franchise without legal authority, and it may be resumed by the state whenever the judi

cial tribunals have ascertained the fact of usurpation in the mode prescribed by law."

The case of Marbury v. Madison is historical, and ought to be noticed in this connection. The defendant was Mr. James Madison, then secretary of state, and afterwards president of the United States. The Supreme Court was asked for a rule requiring him to show cause why a mandamus should not go against him to compel him to issue a commission to Mr. Marbury, who was appointed justice of the peace of the District of Columbia by President Adams. The president had nominated Marbury to the Senate, the nomination had been confirmed, and the commission had been signed by the president and sealed by his secretary of state, but Mr. Madison refused to deliver it. The application for the mandamus was denied, it being an exercise of original jurisdiction not warranted by the constitution. In his learned decision Chief Justice Marshall, who delivered the opinion of the court, discussed very fully the prerogative of the executive in regard to appointments and commissions, what rights are conferred by a commission, and how far it is essential to the exercise of the duties of the office by the appointee. It was held that a commission is not necessary to the appointment of an officer by the executive, that, in the case of an officer not holding by the will of the executive, when the nomination has been made and confirmed and the commission signed, the appointment. is complete and irrevocable, and the commission is only evidence of the appointment.1

1. Marbury v. Madison, 1 Cranch U. S. Supreme Court Reports, 137.

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