The following concurring opinion was delivered, November 5th 1862, by
Woodward, J.The governor has no power to revoke a sheriff’s commission. The only appointing power in respect to sheriffs which he possesses is to fill vacancies which occur during an official term. Formerly he had more. Under the Constitution of 1770, the electors returned two names to the governor, and he was empowered to appoint either. But the Constitution of 1838 provided for the election by the people of one person only for the office of sheriff, in each county; and he “ shall be commissioned by the governor,” says the Constitution. No discretion or right of choice is committed to the governor. The rule of the Constitution is imperative that he shall appoint whom the people elect. And where a doubt or dispute exists as to who is elected, the law commits the question to the judicial tribunals, and to them the governor is to look for a decision that shall be final and binding on all citizens. The executive commission is not the title to the office — it is only a ministerial authentication of the title which the electors have conferred. Prothonotaries and clerks of the courts, registers, recorders, justices of the peace, and • aldermen are also commissioned by the governor, though elected, like sheriffs, by the people. The reason why the Constitution of 1838 continued the executive power to commission, after it had taken away the executive power to appoint these officers, was that there might be a public record, accessible to everybody, of the official existence and powers of the persons named. It is often necessary in after years to show who filled a particular office at a particular time, and the Constitution meant to place a permanent memorial of the fact in the archives of the executive department. Hence the power to commission officers, with whose selection or appointment the governor has no more to do than any other citizen entitled to a vote. And having no power of appointment, he has no power to revoke or impair a commission once granted. If it have been unduly granted to one man when it ought to have gone to another, it is to be set aside and avoided only by judicial process. And when the *381governor is certified of the final result of such judicial process, it becomes his duty to grant the commission which ought to have been issued in the first instance.
If, therefore, we ignore the judicial proceedings had between these parties, as both of the executive commissions did ignore them, it results necessarily out of the constitutional functions of the governor that his last commission could not revoke, supersede, or in any wise impair the first. And it is very important to assert this conclusion with distinctness, that it may not, on some future -occasion, come to be thought that a governor may supersede the commissions granted by himself the year before, or that an incoming governor may supersede all of the existing commissions issued by his predecessor.
But we have no right to ignore the judicial proceedings had in the Quarter Sessions of Philadelphia, for they are referred to in the bill, answer, and proofs. What was their nature and effect? They were proceedings for contesting the sheriff’s election of 1861, and they resulted, on the 18th of October 1862, in a decree in favour of the present respondent. On the same day, the plaintiff obtained, served, and filed a writ of certiorari to that decree. If, on the 21st of October (the date of the commission to Thompson), the governor had that record before him, he saw that the appropriate writ to bring that record under review in the Supreme Court was pending, and that the question who of these two men had been legally elected was not yet finally decided. If he had not the record before him, it was the fault of the parties to permit him to issue a second commission in ignorance of the certiorari, and we have seen already that a commission so issued impaired not the prior commission. But if the governor was informed of'the writ of certiorari, had he a right to disregard it ? My firm conviction is, that he had not; that he was just as much bound to respect it as every other citizen of the Commonwealth.
I have said it was the appropriate writ for the occasion. Ewing had a right to take it. He had no right to take it for the delay of justice, but he swore solemnly that it was not taken for purposes of delay, and this entitled him to it. We said so in Miller v. Chase, and I have no disposition to qualify the ruling in that case. The counsel for the respondent have taken no exception to the writ, have not moved to quash it, either for want of an allocatur or for other causes. In such circumstances, it seems to me that it is not our duty to suggest difficulties about the writ, and to threaten to quash it before the return day. And certainly I cannot say that the governor was at liberty to disregard it, and to issue a commission to become good and valid, if that writ should happen to be quashed, or to be decided against Ewing. He either had the power, and it was his duty, to commission *382Thompson at the time he did, or he had not the power, and it was not his duty. I hold that until the judicial proceeding was finally terminated, neither the power nor the duty attached.
A writ of certiorari is not a writ of supersedeas ; it is what its name imports, a writ commanding an inferior judicial tribunal to certify its record into the appellate tribunal, that the latter court may be made sure that no errors in law appear on the record. If the inferior court have issued an execution upon a judgment before the certiorari comes to them, they supersede it, as was done in the memorable case of The Commonwealth v. The Pennsylvania Central Railroad Company, 3 Wr. 406. But if the judgment or decree of the inferior court is to be followed by no execution issued out of that court, no supersedeas is necessary. And such was this case. The Quarter Sessions had issued no execution, and the law authorized none. They had finished their work when they pronounced the decree. The certiorari removed it into the Supreme Court to be reviewed, and there it hangs still. But the legal effect of the removal was to suspend all claim and all action under the decree. As in a capital case, where the court which pronounces the judgment issues no execution, but the governor does, will it be said that notwithstanding a writ of error or certiorari duly issued out of the superior court, and undecided, the governor may go on and hang the culprit ? ’ Or in a road case where the supervisor is the executive officer, and acts upon a certified copy of the decree of the Quarter Sessions, may he proceed in disregard of a certiorari duly issued and served ? There are many cases under our Poor Laws and School Laws where the court does not execute its own decrees, but has it ever been contended that after the record has been removed to be reviewed in an appellate court, the executive officer may go on and execute it as if no review had been instituted ? I am not aware of any decisions of this court, or of any other, that would justify an affirmative answer of these questions. Not that the writ is addressed to the executive officer so as to put him in contempt for disobeying it, nor that it is in form a supersedeas, but the ground on which it exacts suspension of all official execution is that respect and obedience which the law demands of all law officers for all legal process. No officer is higher than the law. And when the law has instituted a review of a judicial record, all parties claiming rights under it must wait the course of the law. And executive officers too must wait. It is quite beside the point to consider what would have been the effect of. an executive commission granted before the certiorari issued. That is not the question, on the record, and therefore I shall not discuss it. The commission in question was issued two days after the certiorari was duly served, and before it was judicially disposed of, and therefore it was premature and unauthorized by law. *383The governor had no right to offer Thompson a commission before the writ was disposed of, and Thompson had no right to accept it.
This disposes of the only question upon the record now before us. What there is in the record brought up by the certiorari I know not, for it has not been opened to us. When its turn comes, it shall have justice according to law. Meanwhile, our present duty is accomplished by declaring that Ewing holds the office of sheriff under an executive commission of 1861, which was not superseded by the commission issued to Thompson in 1862, and therefore Ewing is entitled to retain the office until, in the language of his commission, his successor has been “ duly qualified.”
I have been, and still am, most anxious for the speedy disposition of this contested election, and therefore I consent to fix a day for the argument of the certiorari before the term at which it is returnable. But it can be argued then only by consent of counsel. I have no doubt they will do their utmost to facilitate the argument and to speed justice; but if they should not consent to an argument on the day fixed, I do not think that, at present, they ought to be threatened with disagreeable consequences.
Nor am I prepared to decide now, that Thompson’s commission, if the certiorari be finally decided in his favour, will entitle him to the emoluments of the office from its date. How a mere ministerial authentication issued before the fact occurs which it is intended to authenticate, and enjoined against for that reason, can confer any rights, and especially the right to receive the emoluments of an office legally exercised by another, is not apparent to me. Nor do I think the time has arrived for deciding that question. On the whole, I am of opinion that on the plaintiff’s giving security in $5000, the injunction should issue, and that the 15th November instant be fixed for the argument of the certiorari by consent of counsel.
On the 15th November 1862, F. Q. Brewster moved the court to dissolve this injunction, and quash the certiorari. The motion was argued November 17th 1862. The court dissolved the injunction, and quashed the certiorari: vide report of Filley v. Ewing, post 384.