
    William Laval vs. F. A. DeLiesserline.
    The City Sheriff of Charleston does not hold Kis office under the constitutional provision of the State as to the tenure of office of State Sheriffs.
    This was a rule taken put by Laval, lately elected city Sheriff of Charleston, ágaiiist DéLéiSserliné, the late Sheriff, to shew cause why he had not delivered over the records and papers of the office. The rule Ivas heard by the Recorder of Charleston, October term, 1826, who delivered the following opinion:
    The Recorder. In this case the objection takén to the rule’s being made absolute is, that thohgli the defendant was elected under ah ordinance to hold his office for two years only, yet as soon as he became city sheriff he was in under the constitution of the state, thé 6th article of which declares that “ Sheriffs shall hold their offices for. four years.” To establish this it became necessary for. the defendant to shew that the constitution includes the city sheriff, and he has attempted this by endeavoring to prove that this court is a state court, that the Recorder is a state judge, and then it is taken for granted that if these positions be demonstrated the city sheriff must be a state sheriff, and consequently included within the provisions of the constitution. For it must be admitted that the officers mentioned in that instrument are state officers, and no others. It is not I apprehend, denied that the city sheriff is a city officer, but it is contended that he is also a state officer, that is, as well a state sheriff as a city sheriff, because he has to perform duties within the city similar to those which thé district sheriff performs within the district. That position would seem to flow from such a general principle as this, that whenever a person is directed by law to do certain public duties similar to those performed by a known officer, he thereby becomes such officer; and the defendant’s counsel have in conformity contended, that whoever éxercises judicial power becomés a judge, and is protected by the constitution. If there were such a principle, the argument perhaps, would be at an end; but none such exists. A coroner exercises an important judicial office, having the authority to summon a jury, and to charge them and receive their verdict like a judge, yet he is not a judge within the constitution, for if he were, though an inferior one, he would hold his commission during good behaviour. He also acts as sheriff when the sheriff is interested, yet no one ever supposed he thereby became protected for four years from such act. So the managers of elections, comihissioners of roads, &c. are judges whose decisions áre Often very important áñd final, yet it cannot be pretended that their exercise of judicial authority imparted by the laws, gives them a tenure during good behaviour; so with many others. The principle therefore, does not exist. Persons may be designated to do certain duties similar to those of an officer either executive or judicial, and yet not become thereby such officer. But it is assumed that the character of the court gives the character to the executive officer. No course of reasoning has been pursued to establish this assertion and no authority supports it. In Hel-frid’s case, Judge Johnson says, “ a sheriff is not otherwise necessary to a court than to execute its orders and its process ; he certainly has no participation in the judgment of the court; and if there be no sheriff, I see no reason why the court would not be at liberty to pronounce its judgment.” But further, when the jurisdiction of the court of Wardens was explained by the act of 1784, the persons designated to serve their process were constables.-— In less than three years afterwards, the Wardens themselves by ordinance, established the office of city sheriff, transferring the duties performed by the constables to him. Suppose they had retained the title of constable, and imparted to him all the powei’S given to the person they called city sheriff, his character it must be admitted, would not have been altered, yet it never would «. have been contended that such constable became afterwai’ds protected in the tenure of his office by the state constitution as a sheriff. The name then it appears to me has led to the erroneous opinion that the city sheriff is what the law means by a sheriff. Indeed, I doubt the power of .the city council to appoint a sheriff. What then, it may be asked, is this office ? The answer is, he is a city officer having certain qualifications, and performing in the city certain duties analagous to those of sheriffs. It cannot be denied that the legislature may direct writs to be served by constables or others, and the processes of courts to be executed by whomsoever they think proper. In the present case, within the city of Charleston, they have directed these duties arising out of the city court to be performed by this officer, as the sheriffs of the state perform those issuing from the superior courts of law. The office is thus declared by the act to be analogous or similar to that of shei’iff; but this very similarity destroys its identity ; nullum simile, says Lord Coke, est idem. If the city sheriff be a sheriff, then there are two distinct sheriffs, independent of each other, exercising jurisdiction over the same place, which, it is said in 3 Bacon 162, cannot be, for though there are two sheriffs in London and Mid-dlesex, yet they regularly make but one office, and if one die the office is at an end until another is chosen. If in fact the city sheriff be a sheriff in Charleston, what prevents his serving the process of the Common Pleas and Sessions as well as that of the City Court ? Further, the city sheriff was an officer well known, as defendant’s counsel contended, at the adoption of the constitution in 1790, and therefore was intended to be included in the term sheriff in that instrument; but the reverse appears to me to be the legal conclusion. He was well known then to be an officer of a corporation, of a veiy mean rank, and as the counsel have admitted, of slender profits. Why should he be drawn from his obscurity and the tenure of his almost worthless office rendered sacred by the constitution ? The true construction I take to be this. As sheriffs of the state were at that time officers of dignity and power, and well known, and as the city sheriff, though perhaps equally well known, had neither dignity nor power, the mention of the former is an exclusion of the latter, according to the common maxim, particularly when the very name of the latter is different from that of the former. Further, the constitution carefully preserves all chartered rights and privileges then in existence. (8th art.) The wardens had, (and three years before had exercised it,) the right of electing this officer called a City Sheriff, and of fixing his term of office at their pleasure. The constitution could not therefore, have intended to in» elude this officer, because it would have abridged a chartered right previously granted by law. But the argument that sheriff must include city sheriff, if good when applied to the constitution, must be at least equally so, when applied to all the acts of assembly, where the term is used. All sheriffs are directed to execute process from the Court of Ordinary, 2 Brev. 223. Can the city sheriff do so ? So in many other acts, sheriffs are directed to do certain things which there can be no doubt the city sheriff is not bound to do. Sheriffs are not bound to serve on juries, yet the city sheriff was till the passage of the act of 1796, (2 Faust 101) which says : the following officers of the city of Charleston shall not be bound to serve on juries: the Intendant, City Sheriff, &c. One act directs all public officers to give bond to be approved of by certain state officers, and to be lodged in a particular place, &c. Surely it cannot include the city sheriff or city clerk, or any other city officer. I take the true rule to be, that no act of the legislature applies to this inferior city officer, unless he be expressly named or referred to therein, and I think the same rule. is applicable to the constitution. Let the rule be made absolute.
    An appeal was now taken up from the decision of the Recorder, as well upon -the motion to admit Laval into the Office of city sheriff, as upon the rule served on F. A. DeLiesseline to shew cause.
    
      Petigm, Att’y. Gen. for Laval.
    By the ordinance of 1824 it was ordained that the city sheriff should,hold his office until 1826. Under this ordinance DeLiesseline was elected, and after serving as sheriff that period, Laval has been appointed by a new counsel. The constitution of the state does speak of .all sheriffs. But it means state sheriffs. This officer is not a sheriff as meant by the constitution. This office grew, out. of the ordinance pxaseriáJ*arsuance °f Uie act of 1783, P. L. 329, and it jr-onlj a city officer. The constitution meant that officer who is known to the common law, and by the act of 1795 P. L. 271, sheriffs are ordered to be elected for each district. These were the sheriffs meant by the constitution. This city officer is not the shire-reeye, the viscount.— Who could confound the sheriff, shire-reeve, or keeper of the county, with the city sheriff of Charleston ? They represent different rights. The sheriffs of the state represent the officer who in England holds the court of the shire. The elections of state sheriffs are regulated by acts of the legislature. The city sheriff was never created by that authority. He is the mere creature of the city council. The provision of the constitution does not apply to officers of corporations. City Council vs. Egleston, 1 Con. Rep. 45. City officers are not to be commissioned by the Governor, but by the corporation from whence their appointment emanated. Their duties were different ; which was conclusive of the matter. By the act of 1795 the duties of state sheriffs were made the same as in England. Their powers are to raise the posse commi-tatus, they extend over the whole district, they are keepers of the public peace, See.; Com. Dig. Compty B. Before the organization of the militia their duty was to call out the troops and to suppress rebellions. Had the city sheriff ever such powers ? The city council have not authority to enforce the laws of the state, unless authoris-ed by the legislature. M’Millan vs. City Council, 1 Bay 47. The oath of office only prescribes his duties to the city authorities. He was a constable before the act of 1801, but then the city swelled a little under their new powers, and called him sheriff, but the worthy burgers only changed a name. The case of Helfrid, 2 Nott and M’Cord 233, was not inconsistent with the views he had ■'aken. That case would seem only to say that the Recorder, by the acts of the legislature, had two that he was an inferior judge, andas such the constitution» was indifferent by whom he was appointed.. It can hardly be contended that every bum-baliff concerned in thief-taking, or in catching skulking debtors was t.o hold his office for four years. If he had been called baliffi, nobody would have ever thought of his holding under the constitution. The name of Sheriff caused them to catch at this idea of the constitution. The city Marshal stops those who ride too fast, and catches dogs and cattle — he is nothing. But even the .city Sheriff, what can he do ? He cannot hang a negro.. He cannot even serve the process of a magistrate. If .your Honors, appoint a messenger, he too will be a sheriff, and cry .out for the constitution, Has the council been uniform in its plan ? Not they. They have some years sunk down to Major Cartwright’s plan of annual elections, and then they have become more aris-tocratical, and have tried the triennial mode. I do think the judgment of the Recorder should.be affirmed.
    Lance, contra.
    This offiee was constituted in 1787, four years before the constitution was framed. He was known as a sheriff and had considerable powers given to him; to make proclamation’for the intendant, &c. and was vested with all the powers given by the state laws to state sheriffs. See Ordinances p. 38, 54, 87. The framers of the constitution must have been aware of this office. The act of the legislature of 1781, recognizes this officer. It legislated for the city sheriff. The same reason applies for the tenure of four years for a city sheriff, as for a district sheriff. The city sheriff has always been a conservator of the peace. Before the act of 1780, the officer who served the processes of the colonial courts was called Provost Marshal. The duties being the same, why should the constitution distinguish between sheriffs of a city and -Rovififs of a county. The constitution does apply to a class of officers who are not appointedby the legislature, i. e. the recorder, the officers appointed by the governor, &e. If the recorder is considered an officer under the constitution, why not the city sheriff ? The Attorney General goes into that court to enforce the laws of the state, and this officer executes them for him.
   Cukja, per

Nott, J.

This court have but few observations to add to the very ample report and opinion of the recorder, containing, the grounds and reasons of his decision. And those remarks will apply, as well to the cases involving the constitutionality of the authority of the recorder himself as to the case now under consideration. The city of Charleston was incorporated in the year 1783. A city court was then established with power to try all cases arising under the by-laws of the corporation. In the year 1784, the jurisdiction of that court was extended to all eases of a civil nature not exceeding twenty pounds sterling, where the titles to land did not come in question. The city court by their charter of incorporation were au-thorised to appoint a Recorder, Treasurer, Clerk, &c. and all other officers which should appear to them requisite, &c. By the constitution which was formed in the year 1790, it is declared, that the rights, priviliges, immunities and estates of both civil and religious societies, and of corporate bodies, shall remain as if the constitution of this state had not been altered or amended.” In the year 1801, the city court underwent a new organization ; but the nature of its jurisdiction was not changed, although it was some what extended. From that period to the present time, the city council have continued to appoint a sheriff, and to regulate the tenure of'his office.— The exercise of such an authority for such a length of time the court consider as the highest evidence which they can now have of its constitutionality. In the case of Steward vs. Laird, 1 Cranch 299, Judge Patterson who delivered the opinion of the court said, “ another reason for reversal is that the judges of the supreme court have no right to sit as circuit judges, not being appointed as such, or in other words that they ought to have distinct commissions for that purpose. To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistable answer, and has fixed the construction. It is a cotemporaneous interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest, and ought not now to be disturbed.” That reasoning applies with all its force to these cases, because the practice and the acquiescence have been much longer in these cases than in that to which those observations were applied. The motion therefore must be refused.

Rule made absolute.  