
    Greir, Relator vs. John Taylor, Governor, &c.
    Prohibition will not lie against the Governor to restrain him from granting a commission to an.officer who has been improperly elected.
    At a late election for sheriff of Georgetown district, on the second Monday in January, 1827, the relator and Robert Thurston were competitors; and Thurston was declared elected by the managers. The relator objected to the regularity of the election, and this was a motion for a prohibition before Judge Bay, at Chambers, to restrain bis excellency, from granting a commission to Thurston, on the ground that the election was void.
    Bat, J. As this is an entire new case, out of the routine of the ordinary cases in which prohibitions have been usually granted, there are no authorities in the books to aid me, or throw any light on the subject; I am, therefore, obliged to resort to principles to bear me out in the opinion which I must give on this application. In England the king is said to be the fountain of all power and authority in that kingdom. All the courts and judges in his dominions derive their jurisdiction and exercise their respective functions from him and under his name. Hence, it has resulted from his supremacy that the judges of his superior courts of law, although they have the power to keep all the inferior tribunals and officers in the kingdom within their proper limits, and to prevent them from exercising jurisdiction in cases not belonging to them, yet they have no power to restrain the king from the exercise of any of the prerogatives or authorities appertaining to, or belonging to the crown. A prohibition is a high prerogative writ proceeding from the king himself and emanating from him; it would, therefore,' be a solecism to send such a writ to restrain him, who is omnipotent in such cases and whose authority is underived from any other power on earth. Such a proceeding, therefore, would be something like sending out a process to restrain himself, which would be absurd and nugatory in its very nature. In our country the people are supreme. All civil power and authority is derived from them, and by virtue of their inherent prerogatives, they have thought proper, in order to establish justice and to prevent all irregularity and confusion, to make known and 'publish to the world their great republican charter, called a constitution, by which all the powers of the state are regulated and governed. By this constitution, all the power's of the government are distinctly defined and vested in their separate branches, namely, the legislative, the judicial and the executive, all of which are independant of, and have no control over each other. The legislative branch has the power of making and enacting all laws for the government of the citizens. The judicial has the power of construing those laws so made, and of' declaring their bearings on the citizens; and the executive is charged with the authority and power of causing all those laws to be duly executed, and of granting commissions to all the officers of government for the exercise of their respective functions in office for the benefit of the whole. But no one of these different departments has any right to interfere with the others in the legal execution of their official duties. It is admitted that the judges of the superior courts of law in the exercise of their judicial powers, have a right by the common law of the land which is re-cognised by the constitution to send out this high prerogative writ to restrain all the inferior courts and jurisdictions, or bodies of men appointed for special purposes from doing illegal or unauthorized acts. But they have no power or authority to send out such a writ to cither of the other great branches of the government; for, if they had such a power to invade the province of the executive and to say, he shall not exercise his official right of issuing commissions, &c. &c,, it is difficult to see any good reason why they should not send the same writ to the other great branch of the government to restrain it from passing any law which they might conceive was an impolitic or unconstitutional act. Thus such a doctrine would be laying the foundation for a scene of confusion and clashing of jurisdictions, as would in a very limited period, destroy our present happy and well poised government, the idea of which cannot for a moment be tolerated. For these reasons, I am clearly of opinion that the writ of prohibition will not lie in any case against his excellency the Governor of the state, to restrain him in any of the powers given him by the constitution. Let the suggestion, therefore be dismissed.
    The relator appealed.
    
      Wilson, for the relator.
    It will be admitted that so far as sovereignty is attached to the office of Governor, he is superior to the authority of the court. But in issuing a commission to a sheriff he acts in a mere ministerial character, and like all other ministerial officers is under the controul and direction of the courts of justice. By the laws of this state managers are appointed to conduct these elections, and to them is confided the decision of all controversies arising out of it, and it is upon their certificate he is required to issue a commission. He (the Governor,) exercises neither judgment or discretion in relation to it, and is the mere instrument to carry the law into effect. He then went into the regularity of the election.
    
      Porter, contra'.
    It would be a dangerous precedent if one of the co-ordinate branches of the government were to interfere with the powers vested in the other, but it is not desired that this case should be concluded by this question. It is matter of public importance that a construction should be put on these acts, that there may be a uniform practice established throughout the state.
    
      Petigru, same side.
    The writ of prohibition only lies by a superior judicial tribunal to an inferior tribunal. The Governor possesses no judicial power. His office and powers are co-ordinate and is supreme; and it would make confusion worse than confounded if one branch of the government was to attempt to control the other.
   Curia, per

Nott, J.

It is unnecessary to add any thing in this case to the opinion which has been expressed by the judge to whom the application was originally made. I will nevertheless observe, that a constitution has been defined to be “ a form of government delineated by the mighty hand of the people.” It establishes the different branches of the government, and assigns to them their respective duties and powers. By the constitution of South Carolina they are rendered co-ordinate and independent. Neither can control the other in the exercise of its legitimate functions. To the judges belongs the power of expounding the laws ; and although in the discharge of that duty they may render a law inoperative by declaring it unconstitutional, it does not arise from any supremacy which the judiciary possesses over the legislature, but from the supremacy of the constitution over both. Whenever therefore, an act of the legislature comes in contact with the constitution, the latter must prevail. But the judges have no power to restrain the legislature from passing an unconstitutional law, nor to restrain the governor from carrying such a law into execution. For such abuse of power they are answerable only to the sovereign people, y I concur therefore in the opinion which has been given, that the prohibition ought not to have been granted. His honor here went into the question of the regularity of the election, but as the act of 1827 has made new provisions for the election of sheriffs in all cases, the Reporter has omitted that part of the opinion.

Prohibition refused,  