Brooke v. Widdicombe

| Md. | Feb 5, 1874

Lead Opinion

Bartol, 0. J.,

delivered the opinion of the Court.

It appears from the record that the appellant, in November, 1867, was duly elected and qualified as Clerk of the Circuit Court for Prince George’s County, and has ever since held the office under Art. 4, sec. 25, of the Constitution, which entitles him to hold the same lffor six years from the time of his election, and until his successor is elected and qualified.” At the late general election held on the fourth day of November last, he was a candidate for ^-election to the same office, and the appellee was also a candidate; the election returns were duly made and transmitted to the Governor, from which it appeared that the appellee received a plurality of the votes cast by the qualified voters of the county, and was returned as having been duly elected to the office. Whereupon the Governor issued a commission to the appellee and on the 20th day of the same month, he gave bond as required by law, which was duly approved and recorded, and having paid the legal tax on his commission, and taken the oath of office before the appellant demanded of him the possession of the office, and being refused, applied for a writ of mandamus to compel the appellant to surrender to him the possession of the office. Iiis petition was filed, and a rule to show cause thereon, being served on the appellant, he filed an answer thereto, setting forth the defences on which he intended to rely in resisting the application ; to this answer the appellee demurred, and the case was submitted to the Court below, and comes before us upon the petition, answer and demurrer. It appears that at the time of transmitting the election returns to the Governor, the appellant accompanied them with a notice of his intention to contest the election of the appellee, assigning the grounds and reasons of contest, and requested the Governor to send the returns to the House of Delegates, by which alone such contest must be finally decided, under Art. 4, sec. 12, of the Constitution. The main question raised by the answer and presented by this appeal, is whether the Governor had the power to issue the Commission to the appellee before such contest has been decided by the House of Delegates? or in other words, the question is, who is entitled to the office pending the contest?

Before considering that question, however, it is proper to dispose of some preliminary questions, which have been argued at the bar arising upon the pleadings.

It has been contended that the petition is insufficient; that it fails to show on its face that the appellee is entitled to the office; because it is not accompanied with vouchers or proofs in support of its allegations.

The Code, Art. 59, which regulates proceedings of this kind, directs that “ the petition shall be verified by affidavit, and set forth fully the grounds of the application.” The petition in this case fully complies with this requirement; it is true that no prima facie proof is filed therewith, the commission is not exhibited, nor a copy of the official bond or any certificate that the same had been duly approved, or that the oath of office had been taken by the appellee; but no objection was taken below on account of the absence of such exhibits. The effect of the answer was to waive such objections. The petition distinctly alleges, that the appellee was duly commissioned by the Governor, that his official bond was approved by the Judges of the Circuit Court, that it was handed to the appellant, the then Clerk, and by him received and recorded ; and that the oath of office was thereupon administered to the petitioner according to law by the appellant. These averments are not denied by the answer; but are distinctly therein admitted. It was unnecessary therefore to adduce proof in their support.

The answer avers that the petitioner was not legally elected to the office;, but that the respondent actually received a plurality of the votes cast by the qualified voters of the County, and alleges that a number, to wit: not less than thirty fraudulent and illegal votes were cast for the petitioner ; and that <cthe said Widdicombe was not legally elected, owing to the aforesaid fraudulent votes cast for him.”

In the argument of the case, it was earnestly insisted on the part of the appellant, that the effect of the demurrer was to admit the facts thus stated in the answer; and consequently that the appellee is in the attitude of claiming an office, to which he admits by his pleading he was not legally elected. Such is not the legal effect of the demurrer. It is well settled that a demurrer regularly admits no other facts than those which are well pleaded ; if facts are pleaded which are insufficient in substance or immaterial, they are not admitted by the demurrer to be true ; its office is to assert a legal proposition, that the pleading demurred to is insufficient in law, to maintain the case shown by the adverse party.” Gould on Plead., ch. 9, secs. 2, 3, 4 and 5.

The averment in the answer is substantially that there were fraudulent votes cast for the appellee, and for that reason he was not legally elected ; but that is a question which the Court has no jurisdiction or authority to decide; the averment therefore raises what in this case is an immaterial issue, and “when a plea makes an immaterial issue it is demurrable,” as decided in Law vs. Scott, 5 H. & J., 438; Neale vs Clautice, 7 H. & J., 372.

Upon the return of the judges of election certified to the Governor by the Clerk of the Circuit Court, showing that the appellee had been elected, it is very clear that the Governor had the authority to issue to him the commission under the 11th and 12th sections, Art. 4 of the Constitution.

In Magruder vs. Swann, 25 Md., 173, which arose under the Constitution of 1864, containing the same provisions, it was held that the duty imposed upon the Governor in such cases is merely ministerial, and its performance might be enforced by mandamus.

It has been argued that it was the duty of the Governor to withhold the commission, upon receiving notice from the appellant, of his intention to contest the election before the House of Delegates.' But there is nothing in the sections of the Constitution to which we have referred that supports this view. On the contrary, the 11th section expressly declares that the election returns shall be certified to the Governor, “who shall issue commissions to the different persons for the offices, to which they shall have been, respectively, elected; and in all such elections, the person having the greatest number of votes, shall be dec'ared, to be elected.”

The 12th section directs “ that in case of any contested election, the Governor shall send the returns to the House of Delegates, which shall judge of the election and qualification of the candidates at such election.” But this cannot be construed as depriving the Governor of the power to issue the commission to the person returned as elected ; and to whom by the previous section it is made the duty of the Governor to issue the commission. The last part of the 12th section evidently contemplates that the commission in such case may be issued, for it provides that “if the judgment of the House of Delegates shall be against the one who has been returned elected, or the one commissioned by tbe Governor, the House of Delegates shall order a new election within thirty days.” It is very obvious from the language of the Constitution, as well as upon the plainest reason, that it never was contemplated, that a party should be entitled to continue in office, merely by giving notice to the Governor, of his intention to contest the election of his successful competitor ; or that the Governor, upon receiving such notice, would be justified in refusing to issue the commission to the person regularly and duly returned as elected.

The commission having been properly issued to the appellee, and he having given bond and taken the oath as required by law, there appears to us to be no valid ground for denying to him the right to the office. By his commission and qualification the official tenure of his predecessor was terminated. This was substantially decided in Jump vs. Spence, 28 Md., 1. In that case Judge Franklin was duly returned as elected to the office of Circuit Judge, was commissioned and qualified, and went into the office; his election was contested by Judge Spence, his predecessor in office, and the House of Delegates, upon grounds not necessary now to be noticed, decided in favor of Judge Spence, to whom the office was then surrendered. The case arose upon a claim made by Judge Spence against the Comptroller, for the salary, during the time when the office was held by Judge Franklin. This Court decided against the claim, reversing, to that extent, the ruling of the late Judge Mason, who decided the case below as special Judge. But on the question of the right of Judge Franklin to the office, during the contest, this Court affirmed the ruling of the Special Judge, who said in his opinion : “ As soon therefore as Mr. Franklin received his commission and qualified’ thereunder, in legal contemplation he became for the time being, the legally constituted Judge, at least so far as the public were concerned, and his predecessor who held over under the Constitution up to that time was superseded. The commission and qualification were all the muniments of title to the office which the Constitution in that stage of the case required. The official tenure of Mr, Spence, under his first commission, was as effectually terminated by the Commission and qualification of Mr. Franklin, as if that gentleman had been subsequently confirmed by the House of Delegates.” On this question this Court said, 28 Md., 11, "We agree with the conclusion to which the special Judge arrived in deciding the case. We think the appellee (Spence) could not have continued to hold the office, after the commission and qualification of Mr. Franklin.”

That decision seems to us to conclude the question as io the right of the appellee to the office now in dispute. His title is not impaired or affected by the pending contest before the House of Delegates. The effect of the opposite construction, contended for by the appellant, would be to enable him, by making a contest, to extend his official term indefinitely; for if a new election should be ordered and he be again unsuccessful, he would only have to notify the Governor of his intention to make a contest, in order to remain in office until the next meeting of the House of Delegates two years hence. Such a construction of the Constitution cannot for a moment be accepted. But it is urged that a mandamus ought not to be awarded iu favor of the appellee, because of the pending contest before the House of Delegates, upon the ground that where the same question is pending before another tribunal having concurrent, jurisdiction, the writ ought not to be granted. In support of this view we have been referred to Hardcastle’s case, 32 Md., 32" court="Md." date_filed="1870-01-14" href="https://app.midpage.ai/document/hardcastle-v-maryland--delaware-railroad-7892917?utm_source=webapp" opinion_id="7892917">32 Md., 32, and other decisions have been cited to the same effect,' but they have no application to this case, for the'reason that the jurisdiction of the House of Delegates and that exercised by this Court, are in no sense concurrent. To that tribunal the Constitution has given the exclusive power and jurisdiction to go behind the election returns, to examine into the qualification of voters, purge the ballot box and recount the votes ; subjects over which the Courts have no jurisdiction. Our power and jurisdiction are confined simply to the question of the legal rigfht of the appellee to claim the office, after having been duly returned as elected, and being commissioned and qualified; and on this question we do not think there is any room for doubt. The last argument addressed to us on behalf of the appellant, is that the writ of mandamus not being one ex débito jUstitice, but resting in the sound discretion of the Court, ought not to be granted in the present case, because of the contest pending in the House of Delegates. To this a brief answer will suffice, as said by the Court below, the discretion confided to us is not arbitrary, ££ but must be exercised under the established rules of law, and if under those rules the party is entitled to the writ, it must be issued.”

(Decided 5th February, 1874.)

For these reasons the order of the Circuit Court will be affirmed, and the case will be remanded, to the end that a writ of mandamus may be issued as prayed.

Order affirmed.

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Dissenting Opinion

Stewart, J.,

delivered the following dissenting opinion :

The high prerogative writ of mandamus has been justly compared to a bill in equity for specific performance, which must present the most solid and substantial merits to induce a Court of Chancery to grant such relief.

When applicable to a case in which the right to occupy a public office is involved, it will not issue upon light, technical and equivocal representations, but having its foundation in the principles of justice and public policy, to preserve peace, order and good government; there must exist the strongest grounds of equity, and the exigencies of the occasion must admit of no reasonable doubt, to demand from the conscience of the Court, the exercise of this extraordinary remedy. I have been able to find not a solitary case where it has been employed by the Court to instal a party in a public or private office, conceded to have but an apparent and colorable title thereto ; where a competent tribunal, having full power and authority finally to conclude the matter, was in the actual exercise of its jurisdiction in the investigation and trial thereof.

Under such circumstances, that another Court, not having ample authority to hear and determine upon the merits of the case, and render full and adequate justice, should intervene, and by its process put the applicant in the office, who may, upon the ultimate determination, be deprived thereof, and constituted an intruder, strikes me, as a proceeding anomalous and unwarranted by the nature of the writ.

I do not understand, that the Courts are to be made the mere instruments to settle and determine upon colorable or prima facie titles, but upon bona fide, and complete claims.

The writ, in my judgment, should never issue, in any case upon such grounds as presented by the pleadings and evidence in the case before us. It is not demandable ex débito justitice, but is always granted, according to the sound discretion of the Court, governed by the rules established for the maintenance of substantial justice. It was said by C. J. Bowie, in the case of State vs. Graves, 19 Md., 374, that this discretion will not be exercised, unless some just and useful purpose may be answered by the writ. The same doctrine is held in all the cases. Wallace vs. Zimmerman, 23 Md., 53; Hardcastle vs. Railroad, 32 Md., 35.

According to the provisions of the 12th sec. of Art. 4, of the Constitution, the House of Delegates is made the judge of the election and qualification of the applicant here to the office of Clerk of the Court for Prince George’s County; and the contest as to the rightful occupant of that office, is now pending before that body, whose exclusive province it is to determine the question. It is a well settled principle of law, that where a matter is in controversy before a competent jurisdiction, the Court should not interfere by mandamus. Tappan on Mand., 74.

Conceding that the petitioner has been returned as elected to the office in question, and has been commissioned by the Governor, and has given bond and qualified, according to law, and that this gives him at least a prima facie title, to occupy the office of Clerk; but that such is the fact, that the legality of the election and his right to the office, is being contested before the House of Delegates, what sufficient reasons of public policy, or the civil or personal rights of the applicant, have been shown to justify the exercise of this high prerogative writ. In what respect are the interests of the public, or the individual jeopardized by its refusal ? It is not the duty of the Court to interpose and determine questions in advance of the action of the forum, authorized and fully empowered finally to adjudicate them.

The action of the Court would necessarily be limited, and ought to await the exercise of jurisdiction by the appropriate tribunal. Such exercise of authority by the Courts, does not seem to me to be demanded, upon the principles of public policy, or the interests of the petitioner, whose case may be speedily disposed of by the House of Delegates ; and his ultimate rights in this matter determined. Comity and ordinary respect to the proper tribunal, to adjudicate the question, forbid interference except in a case demanding the most summary and active measures to prevent a gross wrong.

But the facts disclosed by the proceedings in this case, according to my judgment, deny to the petitioner the benefit of the legal presumptions in his favor, afforded by the commission of the Governor.

We are obliged to consider the case according to the facts, disclosed by the pleadings, under the effect of the general demurrer to the answer of the respondent.

The question must be disposed of as it has thus been presented.

The demurrer by the established rule of pleading, admits the facts alleged in.the answer, and refers the question of their legal sufficiency to the decision of the Court. Weems vs. Willard, 2 H. & G., 143; Neal vs. Clautice, 7 H. & J., 372; 1 Chitty’s Plead., 662.

I take it, the matter stands under the demurrer, very much in the same position it would occupy if a replication had been entered to the answer, and there had been proof of the facts as stated in the answer.

The answer avers, that the respondent rightfully holds the office by virtue of his election as Clerk in 1867, until his successor has been elected and qualified. It denies that the petitioner was legally elected, and this fact is admitted by the demurrer — •

That there were fraudulent votes cast for the petitioner, and that the respondent received a plurality of the votes of the qualified voters.

Assuming that the averments are not mere formal statements, but representations of the actual facts, and according to my judgment from the pleadings, they must be so understood; all presumptive right to the office on the part of the petitioner, is overcome by the admitted facts ; and to give him the benefit of the writ of mandamus to place him in the office, in this state of the case, seems to me at war with the established principles governing the exercise of that writ.

It appears to me such a conclusion would instal the petitioner in the office by virtue of the Governor’s commission, although he admitted he had not really-been elected; and was not legally entitled thereto; and that the commission was in truth, but an invalid instrument. If the House of Delegates should determine that the petitioner was legally elected and qualified to hold the office, and the respondent should refuse to surrender it, he would then be entitled to the writ; unless made to appear that the House of Delegates has ample authority to carry into effect, and enforce its own judgment in the matter.

With much respect for the opinions of my brethren, who constitute a majority of the Court, I am constrained to differ with them in their conclusion.

I think under the circumstances, the peremptory writ should not issue, and therefore that the judgment of the Circuit Court ought to be reversed and the petition dismissed without prejudice.