43 Md. 572 | Md. | 1875
Lead Opinion
delivered the opinion of the. Court.
This is an appeal from a pro forma order of the Circuit Court, directing the writ of mandamus to be issued, requiring the Governor to commission the appellee as Attorney General and to administer to him the oath of office.
By agreement of counsel all errors of pleading have been waived, the only object and purpose of the appeal being to obtain a judicial determination of the powers and duty of the Governor, under the Constitution and laws of the State.
The petition alleges, and the answer of the appellant admits, that the Governor had decided, that according to the returns of the election duly made and certified to him by the Clerks of the Circuit Courts of the several counties and the Clerk of the Superior Court of Baltimore city, the petitioner, Mr. Gwinn, had received a majority of all the votes of the qualified voters of the State, cast at the election for Attorney General, and that according to said returns the petitioner was elected Attorney General of the State; and that at the time of the election, as well as at the time of filing his petition, he was duly qualified and eligible to the office under the Constitution. The answer further states that the Governor had received notice that Mr. Wallis, who was also a candidate for the same office, contested the election of the petitioner upon the ground that, “the said election in the City of Baltimore, was rendered wholly void by fraud, intimidation and violence, and that the returns for said City, could not lawfully be counted, and that he, the said Wallis, received and was duly elected by a majority of the legal votes of the people of the State, exclusive of the City of Baltimore, for the office of Attorney General.”
The answer further states that there appeared in the opinion of the Governor, a sufficient reason to induce a hearing and examination of the questions involved in the contest, by evidence outside of the returns, if he, as Governor, possessed such power under the Constitution, and that he had declined to issue a commission to Mr. Gwinn, as Attorney General.
The provisions of the Constitution bearing upon this question are as follows:
Article 5, sec. 1, provides for the election of Attorney General, by the qualified voters of the State, fixes his term of office, as four years, &c. Sec. 4 prescribes the qualifications required to render a person eligible, viz: that he shall be a citizen of the State, a qualified voter therein and shall have resided and practiced law in this State for at least ten years. Sec. 2 is in the following words:
<c All elections for Attorney General shall be certified ' to, and returns made thereof, by the Clerks of the Circuit Courts of the several counties, and the Clerk of the Superior Court of Baltimore City, to the Governor of the State, whose duty it shall be to decide on the election and qualification of the person returned; and in case of a tie between two or more persons, to designate which of said persons shall qualify as Attorney General, and to administer the oath of office to the person elected.”
Art. 4, sec. 11, provides as follows : “ The election for Judges hereinbefore provided, and all elections for Clerks, Registers of Wills, and other officers, provided in this Constitution, except State’s Attorneys, shall be certified, and the returns made by the Clerks of the Circuit Courts of the counties, and the Clerk of the Superior Court of Baltimore City, respectively, 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 declared to be elected.”
Art. 3, sec. 4*7, provides that,- the “ General Assembly shall make provision for all cases of contested elections of any of the officers, not herein provided forand the 56th
The 11 th sec. of the áth Article above cited, is the only provision to be found in the Constitution directing commissions to be issued by the Governor, to the several officers therein mentioned and referred to ; in all cases falling ■within its provisions, the Governor is required to issue commissions to the persons regularly and duly returned as elected. This is the plain moaning of its language, and such has been decided to be its true construction.
In Brooke vs. Widdicombe, 39 Md., 402, it was held that the Governor would not bo justified in refusing to issue the commission to the person regularly and duly returned as elected; by reason of a notice that the election was contested; that was a case of a clerk, one of the officers expressly named in the 11th section ; but the Attorney General though not expressly named, is clearly embraced within its terms, for after enumerating Judges, Clerks, and Registers of Wills, the words are, “and oilier officers provided in this Constitution, except State’s Attorneys.”' If this section stood alone there would be no room for dispute or question. It is contended however, that this case is governed exclusively by the second section of the fifth Article, which relates particularly to the Attorney General, and which it is argued, has the effect to withdraw the case from the operation of the eleventh section of the fourth Article.
It is no doubt a familiar rule of construction, that where, “a general intention is expressed, and the instrument also expresses ,a particular intention which is incompatible with the general intention, the particular intention is to be considered as in the nature of an exception. Smith’s Commentaries, sec. 652.
As said by Judge Chase in Campbell vs. Morris, 3 H. & McH., 554, i£ the way to expound a clause in the Constitution is by comparing it with other parts, and considering them together.”
In the language of Judge Cooley, the rule applicable is “ that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the Courts must harmonize them if practicable, and lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory.” Cooley’s Const. Lim., 58.
Construing these sections together, it seems to us perfectly clear to be the meaning and intent of the Constitution, that commissions should issue, so soon as the result of the election could be ascertained from the official returns, and that the newly elected officers should at once take the oath of office, and enter upon the performance of their duties ; nothing is contained in the Constitution indicating any intention that commissions should be withheld where elections are contested.
If any doubt would be entertained on this point, it would be removed by tbe provisions of the Act of 1865, ch. 143, (Supplement to the Code, Art. 35, sec. 30,) which after prescribing the manner in which the returns of the election shall be made, expressly directs that “from the returns so made, the Governor shall issue commissions to the different persons elected, including Lieutenant Governor.” *******
That Act was passed under the Constitution of 1864, which contained the same provisions as are found in the
Issuing the commission, and administering the oath of office, are merely ministerial duties imposed upon the Governor, and the writ of mandamus lies to direct their performance. This was decided in Magruder vs. Swann, 25 Md., 17, and in Brooke vs. Widdicombe, 39 Md., 401.
2nd. Has the Governor jurisdiction and power under the Constitution, and existing laws to hear and decide the contest ? This involves two questions, first, has he the jurisdiction ? and secondly, has he been clothed by law with the means of exercising it ?
On the first of these questions, the Court is not unanimous, a minority oí the Judges entertain the opinion, that the Constitution does not empower the Governor to decide in a case of a contested election for the office of Attorney General, and that the case is one falling under the 47th section of the 3rd Article, which declares that “ the General Assembly shall make provision for all cases of contested elections of officers not herein provided for.”
But, in the opinion of a majority' of the Court, the jurisdiction in such case is conferred upon the Governor, by
We construe both these sections, as conferring the jurisdiction in cases of contested election ; and are of opinion that the Legislature would have no power under the 47th sec. of Art. 3, to confer the jurisdiction upon any other tribunal, than those designated by the Constitution. This view is confirmed by the contemporaneous and uniform construction which has been given to these provisions. They are the same as those contained in the Constitution of 1864, and while the Legislature acting under the 47th sec. of the 3rd Art.., has provided by law for the cases of contested election of Comptroller and Commissioner of the Land Office, conferring upon the House of Delegates the power to decide them; there has been no legislation whatever appointing any tribunal to decide a contested election of Attorney General or State’s Attorneys, showing that the Constitution has been understood as having vested the jurisdiction in these cases.
Although the Governor is vested by the Constitution, with jurisdiction of a contested election for Attorney General, the power thus conferred is not self-executing, that is to say, it cannot be executed by the Governor, until he is clothed by law with the authority, means and
From this, it appears that the Governor himself, being the judge to decide the contest, was completely at a loss to know the extent of his power in the premises, and the means he might rightfully employ to execute it. This is not strange, for it is obvious that the jurisdiction conferred upon him, is one which requires the exercise of powers not appertaining to the executive office, and which can only be conferred upon him by law, this Court cannot confer them, nor prescribe the rules for him to observe in hearing and deciding the contest. For this purpose, the action of the Legislative department must be called into exercise, for the Legislature alone has the power of passing laws. The Governor cannot hear and decide the contest in this case, without having authority to have witnesses summoned, to compel their attendance, to administer an oath to them, and to punish them for refusing to attend; to cause the ballots cast at the election to be produced, as well as to have the poll-books brought before him for examination. Without authority conferred upon him by some provision of the Constitution, or Act of Assembly he can do none of these things; neither has he any authority to have depositions taken before a Justice of the Peace or commissioner appointed by him for that purpose; for he has no legal power to administer an oath himself in such case, or to empower another person to do it. It has been argued that these powers are conferred upon the Governor by implication, upon the ground that “where a
But it is clear from the terms of the Constitution that no such powers were intended tó be vested in the Governor by implication. By section 56, Article 3, it is provided that “ the General Assembly shall have power to pass all such laws as may be necessary and proper for carrying into execution the powers vested by this Constitution in any Department or office of the Government, and the duties imposed on them thereby.”
It is clear from this provisión, that the framers of the Constitution intended, that the means to enable the-Governor to execute the general power conferred on him by Art. 5', sec. 2, should be furnished and prescribed by law ; without such legislation the general power can have no operative effect. Many examples might be given to show the necessity for such legislation, a single one will suffice. By Art. 2, sec. 15, the power as conferred upon the Governor to “remove for incompetency, or misconduct, all civil officers who received appointment from the Executive for a term of years.”
In order to render this power effective, laws have been enacted by the Legislature, (Code, Art. 42, secs. 13, 14, 15,) prescribing the mode of proceeding in such case, and conferring upon the Governor the power, “to summon witnesses to testify for or against the complaint, and to, enforce the, attendance of such witnesses in the same manner as the Courts may,” &c.
This general power lodged in tbe Governor, though quasi judicial in its natui’e, does not constitute him a Court, nor does it vest him with the powers and capacities of a /burt, which being clothed with judicial powers, possesses by its organization and constitution, and without the aid of legislation for that purpose, the powers, meim.s, and appliances required to enable it to hear and decide all causes coming within its jurisdiction. These do not belong to the Governor unless they are conferred on Jinn by law. The appropriate legislation for this purpose., under Art. 3," sec. 56, has not yet been passed, and therefore we have decided that the Governor does not possess the power to examine and decide the questions raised by the contest made by Mr. Wallis.
It was contended by the counsel of the appellant that even if the Constitution do not empower the Governor to summon or swear witnesses, or enforce their attendance, he may do the best he can, and receive the unsworn statements of such persons as may voluntarily attend before him. The answer to this is, that such a proceeding would be without warrant of law.
The person who has been duly and regularly returned as elected, and is ^qualified under the Constitution, has a prima facie title, to the office, which, cannot be defeated except upon legal evidence.
The filing of this opinion has been delayed until an opportunity could be had of conferring with Judges Brent, Bowie and Alvey who’were not present at the argument. They have examined the record and briefs, and authorize us to say that they concur in this opinion.
Order, affirmed.
Concurrence Opinion
filed the following concurring opinión :
The question determined, in this case, involves the construction of the Constitution, and whilst entirely concurring in the conclusion of the Court, I have deeded it proper to state briefly, the grounds of my judgment!
Under the circumstances of the case, the dffiy of the Governor must be found clearly prescribed in somA provisión of the organic or statutory law of the Stately It is unreasonable to suppose that it was ever intended'; to be left for judicial research alone to determine what the\Governor should do in such case. . \
If there is any obscurity in the 2nd sect, of the 5th Ard., there is none in the Hth sec. of the kth Art., and any doutff or difficulty about the former affords no reason why the plain provisions of the latter should be disregarded ; on the\ contrary, furnishes stronger ground for following their ' directions.
Constitutions were certainly never meant to be dependant upon judicial construction for their meaning. They were designed for practical purposes, and to be of easy comprehension to persons of plain, common sense, aod ordinary understanding.
The people make and adopt them, and are presumed capable of understanding them. Established upon mature deliberation, as fundamental provisions of government, there ought to be no obscurity about their meaning, and no conflict or inconsistency in any of their provisions.
It has been universally considered that the leading rule to govern, in the interpretation of Constitutions, as of all other instruments, is to ascertain therefrom, the intention of the parties thereto, to be derived from an examination of the entire instrument.
It must have been intended, that all the parts should be consistent with each other; and therefore the repugnancy of one provision with another is to be avoided.
If the words of one clause are uncertain, their meaning can be learned, by comparing them with other words and sentences in the instrument; the effect and consequence of a particular construction, is to be regarded; because, if a literal meaning would involve armanifest absurdity, it ought not to be adopted. If necessary to refer to authorities for such self-evident propositions, see Campbell vs. Morris, 3 H. & McH., 535; Jarrett vs. Hammond, 17 Md., 304; State vs. Wayman, 2 G. & J., 285; Mayor and C. C. vs.
Having in view the force and effect of the 11th sec. of 4th Art., and 56th, 47th, 42nd and 49th secs, of the Constitution, there should be no difficulty about the meaning of the 2nd sec. of the 5th Art. now in question. The 11th sec. of 4th Art. in terms applies to all officers except State’s Attorneys; and of course, includes the Attorney General. It is also mandatory, using in its last' clause, the most imperative language, to wit: “and in all such elections, the person having the greatest number of votes shall be declared to be elected; ’ ’ which makes it obligatory upon the Governor, to issue the commission to that person, for the office of Attorney General, ivho has from the returns before him, the highest number of votes.
Under it the Governor is required to issue commissions to all the persons elected, without further reference to their qualifications; whilst it is made his duty under the 2nd sec. of 5th Art. in regard to the Attorney General, to decide on his election and qualification.
The exercise of these different powers require correspondent action on the part of the Governor — the first ministerial, the second judicial.
The one commands immediate action, the other, allows time for investigation and judgment.
The two provisions must be construed so as to avoid conflict between them, according to the established rule we have referred to.
If the commission had, promptly issued to Mr. Gwinn, in pursuance of the 11 th sec. of 4iA Art., that would not have prevented the Governor from afterwards deliberately deciding upon the legality of his election, under the 2nd sec. of 5th Art., provided there had been such legislation as_ contemplated by the Constitution, 55th and 4Jth sections of 3rd Article.
Besides, it is not to be presumed, in regard to a provision requiring the Governor, to furnish the persons elected, with the official certificate of their title to office, the Constitution ever designed to give to the Governor the power to suspend and render void its operation.
In the absence of the clearest terms to that effect, the Governor in undertaking to avoid its mandates, would in fact be exercising the high and unauthorized prerogative of dispensing with a positive constitutional mandate.
If all officers, whose election was contested, are to have their commissions refused or suspended, until the determination of the contest, it would necessarily result in the utter disregard of sundry other provisions, interrupt the regular installation of the officers, and lead to disorder and revolution.
By the 9th sec. of Art. 15, the term of all officers, except where special provision is otherwise made, is to commence from the time of their election, and they are required to qualify, as soon thereafter as practicable.
By the 7th sec. of Art. 2, the refusal or neglect of any officer, elected or appointed, to take the oath of office provided by the 6th sec. (modified by the 3rd sec. of 15th Art.,) shall be considered a refusal to accept the office.
Further provision by the 10th sec. of Art. 68 of the Code, is made to insure the prompt acceptance of office. The officers are not entitled to any salary, until they qualify and enter upon the discharge of duty. Spence vs. Jump, 28 Md., 1.
If a contest suspends the right to be commissioned and installed, that would deprive the party elected of his office, and abridge the term thereof.
Provision being made by law in such case, upon a hearing the incumbent tuho holds under the returns must be ousted, and the contestant installed, or a nexo election had.
The right of all parties are preserved, and the entire proceedings growing out of the election are thus conducted in order.
■ As the law and Constitution now stand, there was in truth no legal contest before the, Governor. Mr. Wallis’ letter to him was a mere notice or caveat, which he had -no official authority to consider as instituting a contest between him and Mr. Gwinn.
Under the express terms-of the 2nd sec. of 5th Art., as they stand in the Constitution, the Governor is only authorized to decide upon the election and the qualification of the person returned ; and in case of a tie, to designate ivhich shall qualify ; that is, if the returns do not show that any person has the greatest number of votes; but there is a tie between tioo or more, he shall designate which person shall qualify, and administer the oath of office to the person elected, that is, to the pex’son returned or to the one he may designate in case of a tie; this has reference to action upon the retwrns, and not to the result of a contest and determination thereon.
If the means had been given to the Governor by appropriate legislation in pursuance of the 51st sec. of 3rd Art., to enable him to decide upon the election and qualification of the person retux-ned, and no further provision had been made, and the Governor should find accordingly to the ^allegation of Mr. Wallis, that such “fraud, violence and ixitimidaiion ” prevailed at the election in Baltimore, as to
Under that provision, aided by the legislation referred to and no other, the Governor would have no authority to declare Mr. Wallis elected. The only legitimate result under such a state of things, would be a failure of the election of any person.
But if further provision had also been made under the 47th sec. 3rd Art. to authorize the Governor to dispose of the matter as “ a case of contested election,” he would be provided with authority to determine between the contestants ; without some law to that effect, the Governor clearly would have no right to throw out the legal vote of the City, because fraudulent votes had been received ; and no authority to decide in favor of Mr. Wallis, so as to vest in him the right to the office.
It is the exercise of one specific power to decide against the person returned, and quite another and different power, because that person is not elected, to proceed to install somebody else in the office.
The one, upon no principle of law or logic, is the necessary sequence of the other.
The authority must be provided for such result, or it cannot be rightfully exercised.
Under the 12th sec. of 4th Art. provision is made, in reference to a failure to elect any of the officers therein named, and if the person returned as elected, fails to make good his title, a new election must be ordered.
Legislation may be provided for the cases of other officials, whose election is contested, under the 56th and 47th secs. 3rd Art. — upon both of which, legislation is necessary to meet the exigencies of the case now in question. — with
Elections in popular systems of government, are the immediate and original,acts of the people in their primary and sovereign capacity.
All government of right originates from the people. ■Isi Art. Bill of Rights.
The authentic and prima facie evidence of the result of an election, and provisions for any contest thereof, ought to be free from all ambiguity.
All legal intendments are to be made in favor of the legality and validity of such elections. They may, by ■the Constitution, or law in pursuance thereof, be made to import by the prescribed mode of authentication, absolute and conclusive verity, as to the result; or only as affording prima facie evidence thereof, and to be subject to contest.
When an election has been held and duly certified, as may be prescribed, unless there is some constitutional or statutory provision providing otherwise; it is the solemn and binding act of the people, affording conclusive evidence ¡of their decision. Unless provision is made for a contest over it, the result cannot be impeached, and must stand as their act. This is the necessary result.
The Constitution itself, under the 15th Art. thereof, was adopted and has gone into effect by virtue of an election by the people, and the proclamation thereof by the Governor at the time, upon the returns made to him, thus providing that it should afford not prima facie, but conclusive evidence of their action, in the establishment of the present organic law of the State, under which all the powers of the government in the various departments thereof are now exercised, and the rights and liberties of the people secured.
- After the people have voted, and the appropriate officers made due returns thereof, the prompt installation of the off
The onus is upon him to establish his right.
Elections were intended to be legal and bona fide proceedings, expressive of the voice and purpose of the people through the ballot-box, and as there might be fraud or illegality, the Constitution contemplated that any person affected thereby, should have the right to contest their validity by suitable legislation for that purpose.
When the result of the election is duly certified to the Governor, the 11th sec. of 4th Art. provides for proclamation of the fact, and he is required to issue the commission to those having the greatest number of votes, who are in truth by the ioords of that section declared to be elected.
Notice of contest cannot relieve the Governor from the performance of this inevitable duty, or suspend the fiat of the Constitution.
This has been settled by the decisions of this Court. See amongst others, Magruder vs. Swann, 25 Md., 209; Brooke vs. Widdicombe, 39 Md., 386.
Where the Constitution provides, that an election may be contested, and that the Legislature shall pass the necessary laws for that purpose ; and no legislative provision has been made upon the subject, there ought to be no trouble, it seems to me, in determining that there is no competent authority under which to conduct and decide a contest over it.
The constitutional requirement in such case cannot execute itself, but -remains as .a mandate without practical significance, until appropriate legislation gives to it due force and effect.
The 2nd sec. of the* 5th Art. per se, confers upon the Governor no authority to cause witnesses to appear before him, or to compel their attendance by attachment or other process, or to authorize depositions to be taken under commission or otherwise, and can afford none of the indispen
The Governor, in undertaking to decide a contest under such circumstances, would be holding quite a novel Court without the usual adjuncts, and with very limited opportunity of doing justice between .the parties, it would seem.
No doubt it was competent for the framers of the Constitution, to have provided all the details for the trial of a contested election by the Governor, as to the office of the Attorney General, if they had thought proper to have done so, but not having so provided, the Governor has not a particle of authority, by express terms or reasonable implication, to amend and supplement the Constitution, by adding in effect, the necessary provisions for that purpose.
The exercise of power in such case, would be mere assumption and usurpation.
Constitutions deal in generalities, and were never intended to supply a Code of laws, to meet all cases of litigated questions; and no doubt, whether wisely or not, is now immaterial, the Constitution intended, merely to provide, that the Governor, as to a contest over the election of Attorney General, should decide 'upon Ms election and qualification, by the 2nd sec. of 5th Art.
Whilst the Legislature must provide the necessary means according to its discretion, to enable him to execute that power, it would not be competent for that body, to constitute any other person or tribunal to be the judge in such case.
It is much better to abide by safe landmarJcs in the exercise of poiver, than to venture upon mere experimented enterprises.
Latitudinal and doubtful construction of the powers of the Executive, under the Constitution of a free people, ought never to be sanctioned by the Courts.
