CHAPTER IV.

OF THE PRIMA FACIE RIGHT TO AN OFFICE.

§ 204. Where two or more persons claim the same office, and where a judicial investigation is required to settle the contest upon the merits, it is often necessary to determine which of the claimants shall be permitted to qualify and to exercise the functions of the office, pending such investigation. If the office were to remain vacant pending the contest it might frequently happen that the greater part of the term would expire before it could be filled; and thus the interests of the people might suffer for the want of the services of a public officer. Besides, if the mere institution of a contest was to be deemed sufficient to prevent the swearing in of the person holding the usual credentials, it is easy to see that very great and serious injustice might be done. If this were the rule, it would only be necessary for an evil disposed person, to contest the right of his successful rival, and to protract the contest as long as possible, in order to deprive the latter of his office for at least a part of the term. And this might be done, by a contest having little or no merit on his side, for it would be impossible to discover, in advance of an investigation, the absence of merit. And again, if the party holding the ordinary credentials to an office, could be kept out of the office by the mere institution of a contest, the organization

of a legislative body, such for example as the House of Representatives, of the United States, might be altogether prevented, by instituting contests against a majority of the members, or what is more to be apprehended, the relative strength of political parties in such a body might be changed, by instituting contests against members of one or the other of such parties. These considerations have made it necessary to adopt, and to adhere to, the rule, that the person holding the ordinary credentials shall be qualified, and allowed to act pending a contest and until a decision can be had on the merit.

§ 205. No particular form of credentials is required. It is sufficient if the claimant to an office presents a certificate signed by the officer or officers authorized by law to issue credentials, and stating generally the fact that the election was duly held and that the claimant is duly elected to the office in question. If several officers or persons, are by law required to join in such a certificate, it is generally sufficient if a majority have signed it.

§ 206. Where the statute requires the votes of several counties composing a congressional district to be canvassed by one judge from each county, and that the result shall be certified by a board composed of one judge from each county, the certificate of four out of five of such judges based upon a full canvass of the vote is, prima facie, sufficient. The refusal of the fifth judge to join in the certificate will not invalidate it, (Coffroth vs. Kountz, 2 Bartlett 25.)

§ 207. In the absence of any express provision of the State law authorizing any officer to certify to

the due election of members of Congress, it is presumed that under the usages of the House a certificate under the great seal of the State, signed by its chief executive officer, would constitute sufficient. credentials, within the meaning of the statute of 1867. (W. T. Clark's Case 42d Congress.)

§ 208. It is enough for a prima facie case, if the certificate comes from the proper officer of the State, and clearly shows that the person claiming under it has been adjudged to be duly elected by the officer or board on whom the law of the State has imposed the duty of ascertaining and declaring the result. Ibid. And see Kerr vs. Trego, (47 Pa. State R. 292,) where it is held that the certificate of election sanctioned by law or usage, is prima facie evidence of title to the office, and can only be set aside by a contest in the form prescribed by law. In this latter case will be found also an elaborate and able discussion of the general subject of the organization of legislative bodies, to which the reader who may desire to investigate that subject is referred.

§ 209. Where the statute gives the Governor of a State the power, and makes it his duty, to commission the person elected to an office, the issuing of a commission by him confers a vested right upon the person commissioned, which nothing but a judicial decision can take away or authorize the Govenor to recall. It was accordingly held in Ewing vs. Thompson, (43 Pa. State R., 372,) that where the Governor in 1861 commissioned Ewing as sheriff of the city and county of Philadelphia, and afterwards undertook to commission Thompson as duly elected at the same election, to the same office, the latter

commission was void, and the former valid, until set aside by a contest. "The power of the Governor" says Strong, J., in that case, "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 where his act in issuing the commission, is not discretionary with him, but is only the performance of a ministerial duty." And see the important case of Marbury vs. Madison, (1 Cranch, 137.)

§ 210. But, of course, a commission given by the Governor, or other competent authority, does not oust the jurisdiction of the proper tribunal, in a contested election case. It is simply evidence of the right to hold the office; gives color to the acts of the incumbent, and constitutes him an officer de facto. The election being set aside, or the person holding the commission being held not elected, by a tribunal of competent jurisdiction, the commission falls to the ground. The person duly commissioned must exercise the functions of the office until, upon an investigation upon the merits, it is judicially determined otherwise. Upon the subject of the effect of a commission, see Ewing vs. Filley, (43 Pa. St. R., 384.) State vs. Johnson, (17 Ark., 407.) Hunter vs. Chan

dler, (45 Mo., 453.)

§ 211. In the case of Morton vs. Daily, (1 Bartlett, 402,) there were two certificates of election issued

by the same Governor; first, a certificate declaring Mr. Morton duly elected, and at a later date a certificate declaring Mr. Daily duly elected. The second certificate was issued upon the alleged discovery by the Governor, of fraud, in the vote counted for Mr. Morton, and by the second certificate the Governor revoked, as far as he was able, the first. The house allowed the holder of the last certificate to be sworn in, and to occupy the seat, pending the contest. By so doing, however, the house assumed that the Governor might go behind the returns, investigate questions of fraud, and assuming a judicial character, determine such questions, and it also assumed that the Governor possessed the power to revoke a certificate once issued by him. But there seems to be no doubt but that, in the absence of a statute authorizing the Governor to institute a judicial inquiry into the manner of conducting an election, he is bound by the returns, and has no power beyond the certification of the result, as shown thereby. The duty of investigating charges of fraud, and deciding upon them can never be justly assumed by an executive officer, but belong exclusively to such judicial or quasi judicial tribunal, as the law may designate for that purpose. (Switzler vs. Dyer, 2 Bartlett, 777. State ex. rel. Bland vs. Rodman, Sec'y of State, 43 Mo., 256, State vs. Steers, 44 Mo., 224-228. Switzler vs. Anderson, 2 Bartlett, 374.)

§ 212. The case of Morton vs. Daily was followed by the House in Hoge vs. Reed, (2 Bartlett 540.) But it must have been without due consideration, for the same House held the contrary doctrine in