79 Md. 234 | Md. | 1894
delivered the opinion of the Court.
At the general election held on the Tuesday after the first Monday of November, eighteen hundred and ninety three, among the officers voted for in Charles County was a County Commissioner. Under the local law (Act of 1892, ch. 569) the board of County Commissioners of that county consists of three members, but the term of only one of them had then expired, and consequently but one vacancy existed to be filled at that election. Joseph H. Penn was the candidate of one of the political parties for the office of County Commissioner, and Bragunier, the relator, was the candidate of the opposite party for the same office. The judges of the election made a return to the Governor of the number of votes cast in the county, and acting upon that return the Governor issued a commission to Penn, who thereupon qualified according to law, and duly entered upon the discharge of his duties. Thereafter Bragunier, who had also instituted proceedings in the Circuit Court for Charles county under Art. 33, sec. 94 of the Code, to contest the election of Penn, filed in the Circuit Court for Anne Arundel county a petition against the Governor of the State, praying that a writ of mandamus might be granted compelling the Executive to issue a commission to the relator for the office then held by Penn under the outstanding commission previously issued to the latter. A majority of the Judges of the Circuit Court for Anne Arundel county (Roberts, C. J., dissenting) directed the writ of mandamus to go as prayed, and from that order the Governor has appealed.
The remedy by mandamus is not one which is accorded ex débito justifies. The writ is a prerogative one; and unless the right which the relator seeks to enforce is clear
Under sec. 11, Art. 4 of the Constitution, and under the statutes made in pursuance thereof, all election returns, except those for State’s Attorneys and Governor, are required to be certified to the Governor. The method of that certification is minutely and clearly defined in the Code, and in subsequent Acts of Assembly amendatory thereof. To these some particular reference must now be made, as upon them provisions the pending controversy mainly turns.
By sec. 66 of Art. 33 of the Code, it is provided that immediately upon the close of the polls and as soon as the ballots have been counted, and the number for each candidate reckoned up and ascertained, the judges of election of each district shall make out under their hands, attested by the clerks of election, on the books of the polls, two
The certificate as now modified by the Act of 1890, and as required by the law to be made up and signed, and to be transmitted to the Governor, after making recitals we need not allude to, sets forth that the subscribers attending judges at the close of the election * * * “having this day assembled * * * * with the books of the polls, on which are endorsed the several certificates agreeably to law, and having cast up the tohole number of votes given in said districts according to the certificates made out on the day of election by the judges, it appears that •--has-number of legal votes for- and that-has-number of legal votes for -, whereupon we do determine, declare and return that the said-is duly elected.”
Now, from these several provisions of the Code, it seems to us quite obvious that the plain duty of the judges of election who assemble to make up and certify the returns from all the election districts of a county to the Governor, is to cast up the whole number of votes given in said district according to the certificates made out on the day of the election by the judges and attested by the clerks, under sec. 66; and that the statute confers upon these return judges no power to alter, to change, or revise in, any way the results disclosed by the certificates appended to the poll books. If errors are apparent in these district certificates, the mode to correct them is by contesting the election in the appropriate forum. Inj such a contest the true state of the vote can always be ascertained, and the inaccuracies of the certificates can be made to yield to the footings of the tallies, or to the actual results of the election as disclosed by a recount of the ballots. The legislature has not seen fit, either by express enactment, or by implication, to vest in the return judges,1 the power or au
The character of the return which the law requires to be made to the Governor being thus distinctly defined by the statute, it is clear that if no such return was in fact made, the relator’s right to a commission has not been established, and the Governor’s duty to issue one to bim has never arisen. What, then, is the return upon which the relator relies?
It recites that the return judges met, &c., * * * “ with the books of the polls on which are endorsed the several certificates agreeably to law,and in which appear separately the total vote cast in said districts, and the number of votes cast in each district for each candidate voted for at said election, from the tallies kept by the tally clerks, duly marked and endorsed thereon; it appears from said
Now, the words which we have above put in italics are not to be found in the certificate formulated bysec. 70; and the material and essential statement that the return judges had “ cast up the whole number of votes given in said districts according to the certificates made out on the day of election by the judges,” is not inserted at all. There is no certification by the return judges that they had done that which, as we have already pointed out, the law imperatively required them to do, namely, to cast up the whole number of votes given in said districts according to the certificates made out by the judges and attested by the clerks on the day of the election. It is only upon returns so made up and so certified that the Governor can, under sec. 69,issue a commission. It does not appear from the certificate which the return judges forwarded to the Governor that the number of votes which they certify Bragunier received was ascertained by casting up the numbers
Rot only is the certificate silent as to the material fact that the judges cast up the number of votes set forth in the district certificates, but it also omits the formal declaration as to who was elected. Perhaps this latter omission, if the certificate were in all other respects regular, would not be a serious difficulty; but coupled with the failure to certify that the judges had done the chief thing which the law requires shall be done by them to show who was in fact elected, it becomes of greater consequence. The relator’s right to the writ of mandamus depends upon this defective certificate which fails to show that the aggregate vote with which he is credited was ascertained in the mode,
But, beyond this, we have said that a writ of mandamus will not be issued when there is an adequate remedy at law. The Code, Art. 33, sec. 94, provides a full and complete remedy at law for the appellee against Penn. Bragunier instituted proceedings against Penn in the Circuit Court for Charles county, under the section of the Code just alluded to. That case is now pending on appeal in this Court. In those proceedings the question as to who was in fact elected County Commissioner of Charles county could have been, if it was not, fully considered and decided, notwithstanding Penn held and still holds a commission for the office, and Bragunier holds none. The remedy thus given is not only full, but it is peculiarly appropriate; and if this be so, that fact precludes any redress by mandamus. It is, however, insisted the remedy thus provided is not adequate, because what is sought in the pending case is, not possession of the office, but merely possession of the muniment of title to it. But the relator has no right to the muniment of title if he has no right to the office itself. Now, if the writ of mandamus were granted and the commission were issued as prayed, the commission could only serve one of two purposes, viz., either, to enable Bragunier to qualify under it, and to assume the duties of the office, or, to supply prima facie evidence of his right to possess the office. If issued, it could not result in revoking Penn’s commission. He is not a party to this proceeding, and cannot, therefore, be affected by it in any way. The Governor has no power to revoke a commission issued by him, except, perhaps, where he is authorized to remove the officer holding it. Ewing vs. Thompson 43Pa. St., 372.
We have said that Penn's claim to the office of County Commissioner is not before us. The action of the Executive in issuing a commission to him is likewise not before us, further than it is incidentally involved in the opimonwe have expressed upon the irregularity and insufficiency of the returns made by the judges of election to the Governor. But the fact is disclosed by the record that a commission was actually issued to Penn; and the further fact is also apparent, that he qualified thereunder and entered upon the discharge of the duties of County Commissioner. These facts, whilst not influencing the decision of this case, when
For the reasons we have given, we are of opinion that the order appealed from must be reversed, and the petition for a mandamus must be dismissed.
Order reversed, and petition dismissed, with costs in both Courts.
Robinson, O. J., dissented.