
    The State vs. Ephraim Lyles.
    
      A person elected ordinary under the act of 1812, which limits the duration of office to four years, is in under the constitution, and is entitled to hold his office during good behaviour, although commissioned only for four years.
    Chester district, Spring Term, 1821.
    TfjHIS was an application to the court for a rule on the defendant, to shew cause why an information in tbe nature of a quo warranto shop!cl not be granted against him, to shew by what authority he exercised the office of ordinary of Chester district. It appeared that the defendant had been elected ordinary in the year 1815, and commissioned by the governor for four years, pursuant to the provisions of the act of 1812, which limited the duration of the office to that period. But it was contended that he was a judicial officer, and therefore under the provisions of the first section of the third article of the constitution, was entitled to hold his office during good behaviour.
    The presiding judge being of that opinion, discharged the rule..
    This was a motion to reverse that decision.
   Mr. Justice Nott

delivered the opinion of the court.

In the case of Hays & Harley, (1 Con. Rep. 267, ) it was decided that the ordinary was a judicial officer in the contemplation of the constitution, and therefore entitled to hold his office during good behaviour. And although I dissented from that decision, yet the question having been settled, I think it ought not again to be disturbed. Harley had indeed been elected before the year 1812,'when there was no limitation of the office by any act of the legislature, and had been commissioned during good behaviour-. But the principle on which the two cases depend, is nevertheless the same. If the constitution secures to the ordinary his office during good behaviour, it cannot be abridged by an act of the Legislature j neither can it be limited by the terms of the commission. The governor,-in granting a commission, acts ministerially, apd therefore ought to make it conform to the law and the constitution. The commission does not confer the office ; it is only evidence of it, and cannot change the tenure by which the constitution declares that it shall be held. As soon as an ordinary' is elected, be is in office under the constitution, and entitled to all the rights and immunities conferred by that instrument.

Whether such a construction would be given to a mere ’•emnorary appointment by the governor, during an occa> •sional vacancy■ of the office until an election could Cake? place, is a question on which it is not now intended to.ex press an opinion. A person so appointed may, perhaps, be considered in the nature of a locum tenens, without acquiring a permanent tenure in the office. The public good would seem to require that such an office should always be filled, and it is the duty of the government to take care. ne quid detrimenti respublica capiat.

Y/illiams, for the1 motion.

Fernandis, contra.

The motion in this case must be refused.,

Justices Colcock, Johnson, Gantl and linger, concurred,

Justice Richardson :

I acquiesce in this decision by reason that the point haú been before decided.  