Harwood v. Marshall

10 Md. 451 | Md. | 1857

Bartol, J.,

delivered the opinion of this court.

The original application made by the appellee, for a rule to be laid on the appellant, to show cause why a mandamus should not issue, commanding him to surrender to the petitioner the office of State Librarian, was made on the 11th day of April'1856; and the proceedings which were thereupon had . are fully stated in the case, between the same parties, in 9 Md. Rep., 83. In that case the judgment of the circuit court, awarding the peremptory writ of mandamus, was reversed for the reasons therein stated, and the cause was sent back on procedendo.

The procedendo being filed in the circuit court for Anne Arundel county, an additional certificate of the Governor was filed, as follows:

“State of Maryland, to wit:

I, T. Watkins Ligón, Governor of Maryland, do certify, that Thomas J. Marshall duly qualified before me as State Librarian, on the 24th day of April 1854, and on the 24th day of April 1855, by taking and subscribing before me, the oaths of office required to be taken by the State Librarian, according to the constitution and laws of this State, and that since the 18th day of January 1856, he deposited in the Executive Chamber, his bond, as State Librarian, dated 19th day of April 1855, and approved by the Committee of the Senate and House of Delegates on the Library.

Given under my hand and the great seal,” <fcc.

Thereupon that court, on the 21st day of April 1857, being the second day of the April term, directed an alternative writ of mandamus to be issued, returnable the following day, at which time the appellant appeared, and filed a motion to quash the writ, assigning in support of the motion several .reasons, which will be hereafter more particularly noticed. The motion being overruled, the appellant excepted to the ruling of the court, and entered his appeal therefrom.

The appellant then filed on the same day his return to said writ, which being adjudged insufficient, the court proceeded, on the 23rd day of April 1857, to award the peremptory writ of mandamus against the appellant, and thereupon the second appeal was entered.

Both appeals are before us, and it is necessary, for the determination of the cause, that the questions involved in each be decided.

We consider that the motion to quash was made at the proper time; the respondent was clearly entitled to be heard on that motion at that stage of the cause, and was not bound to present his objections in the form of a return to the writ. Tapping's Mandamus, 338. 5 Term Rep., 74, 75.

But in the opinion of this court, the reasons assigned were insufficient, and the circuit court properly overruled the motion.

A proceeding of this kind is not within the rule of the circuit court, referring to causes on the trial calendar, and it was perfectly competent for that court, in the exercise of its discretion, to entertain the case on the first day of the term, and considering the exigency of the case, to provide for a return of the alternative writ, at an early day during the same term. The record discloses the fact, that more than three months previous notice was given to the defendant, of the appellee’s intention “to move for the trial of the cause, and proceed to the trial thereof,” on the first day of the next April term, so that there is no foundation for the pretense of surprise on his part.

Writs of mandamus are not and never have been considered as term writs, to be made returnable only at the next term after they are issued; on the contrary, a reference to the cases will show that they may be made returnable during the same term in which they are issued, and there is no rule of law fixing the time when they are to be made returnable — that is at all times within the sound discretion of the court. The 1st, 2nd and 4th reasons assigned in support of the motion, we consider, therefore, as furnishing no legal ground in this case for quashing the writ.

The third reason we think is alike without force: That is based upon the idea, that it was necessary for the appellee to begin de novo, by filing a new petition, or amending the one originally filed, and obtaining a new rule to show cause; and that he was in error in proceeding upon the procedendo; and that the effect of the decision of this court, above referred to in 9 Md. Rep., was to adjudge that the appellee was without title to the office.

Now the grounds of that decision were:

1. That the appellee, as it then appeared, was not entitled to be admitted into the office, because the certificate of the Governor then filed, did not show that he had subscribed the oaths of office as required by law.

2. That the court below erred in issuing a peremptory writ of mandamus, without having first issued the writ in the alternative form.

The latter objection cannot now be urged; and with regard to the first, this record shows that before the alternative writ was issued, there was filed in the cause the further certificate of the Governor, which has been above stated at length.

That supplied the necessary proof of qualification which had before been wanting, and although it has been strenuously objected, that the record does not set out in terms by whom the same was filed, it is certainly a fair legal intendment, that being in fact filed in the cause, and appearing upon the record, it was filed and exhibited by the appellee in support of his petition, and furnished the ground on which the court acted.

It was not necessary to amend the original petition; the allegation therein contained, “that he has taken before the Governor, the oaths prescribed by the constitution and laws, as appears by the Governor’s certificate,” and the further allegation, “that he is qualified and prepared to enter upon the duties of the office,” are sufficient, when taken in connection with, and supported by, the full and particular certificate of the Governor, to show to the court that the oaths have been legally taken and subscribed.

The motion to quash being properly overruled, the defendant was required to make return to the writ; and upon the sufficiency of the return, the decision of this cause must depend.

In this State, the proceedings in mandamus in such a case as the one before us, are governed entirely by the rules and principles of the common, law. The office in question is a public office, and not within the provisions of the statute of 9th Anne, ch. 20; nor of the act of Assembly of 1828, ch. 78.

If the return state upon its face with precision and certainty, facts which are sufficient in law to justify the court in refusing the writ, the facts alleged are not traversable, and whether they be true or false, the return is conclusive, and the writ is denied. The only remedy, if the facts alleged in the return he untrue, is by action on the case for a false return. 1 H. & J., 557.

Such is the ancient and well settled principle of the common law governing this case, and remaining to this day unaltered by anv statutory enactment in Maryland.

The authorities which must bind this court, and determine its judgment, are to be found in the abstruse, technical and almost forgotten learning of antiquity/ And there is no branch of the law, in which more technical precision and nice discrimination are found, than in the rules which govern the construction of returns to writs of mandamus at the common law.

Since the statute of 9th Anne,'and subsequent, enactments in England, extending the provisions of that act to all cases of mandamus, the ancient rules have beén greatly relaxed. The reason for the same strictness no longer existed, when the facts alleged by the return- were allowed to be traversed, and the issue to be tried. Here we are not permitted to relax the old rules. It is necessary that the return should answer the writ, with the strict and technical precision anciently required.

In the excellent treatise of Tapping on Mandamus, p. 353, it issaid: “The averments of the return must be certain. The certainty required by the common law, is, by some of the cases, stated to have been certainty to every intent, and therefore greater certainty than is requisite to a plea. Other cases have decided, that the certainty or strictness which prevailed at common law, was the same as that which governed estoppels, indictments or returns to writs of habeas corpus, and as to them it is laid down, that nothing is to be taken or construed by intendment or inference, so that all material facts should be positively and distinctly alleged.”

And the cases cited by the learned author sustain these principles. It is necessary that the facts relied on by the return, for the defendant’s justification, should be set out, in order that the court may judge of their sufficiency. It is not sufficient to set out conclusions only. 2 Burr., 731.

If the return deny the supposal of the writ, the traverse must be single, direct and certain. The rule being, that every distinct and material allegation contained in the writ, must, if it be intended to contradict them, be traversed.” Tap., 349. 1 Keb., 716. Ibid., 733. 1 Shower., 282. Ventris., 267. Siderfin, 209, 210. 1 Doug., 80. Ibid., 159. Tap., 348, 349, 350, 351, 355, 357.

The question, in considering the sufficiency of a return by way of traverse must be, whether if the supposal of the writ be true, and sufficiently averred, an action for a false return can be certainly maintained against the defendant; or, in other words, if the facts averred in the return, strictly construed as stated, may be true consistently with the truth of the suggestion of the writ, then the return is vicious.

Let us apply these rules to the case before us:

The facts stated in the writ, are, that the petitioner “hath taken and subscribed the oaths of office, as prescribed by the constitution and laws for the State Librarian.”

The traverse in the return is as follows: “This respondent knows nothing of the qualification of the said Marshall, to the said office of State Librarian, saving and excepting, from the pretenses of the said Marshall as set forth by him in these proceedings, and saving and excepting, also, that, from an inspection of the books in the office of the Governor of the State, it appears, and this respondent so avers the fact to be, that the said Marshall did not take and subscribe the oaths of office, required by the' constitution and laws to be taken and subscribed by him before the Governor of the State, in manner and form as directed by the constitution and laws.” This is not a good traverse.

1st. It is evasive in not denying in direct terms, on the solemn oath of the respondent, the fact alleged in the writ; expressly disclaiming all knowledge of the fact, except from what is alleged, and from what appears from an inspection of the books in the office of the Governor, the averment amounts to no more than an allegation of a fact derived from the inspection of the books; or if this be not the true construction, the averment is at least ambiguous in its terms, the words, “and this respondent so avers the fact to be,” are susceptible of being construed to refer either to the cpualification itself, or to what appears from the books of the Governor, and in this view, it is bad, as wanting the requisite certainty. If the defendant were sued for a false return, the latter construction might be insisted on, with great force, in defense of the action.

2nd. Construing those words as referring to the qualification, the averment is bad, because it states a conclusion of law, for it does not “in (erms follow the supposal or suggestion of the writ/’ but avers “that the said Marshall did not take and subscribe the oaths of office, required by the constitution and laws to betaken and subscribed by him, before the Governor of the State, in manner and form as directed by the constitution and laws.” This is stating a conclusion of law. The return ought to set out the facts, showing the manner and form of the taking and subscribing the oaths, so that the court may judge of their sufficiency in law. 1 H. J., 557.

Finally, the traverse is immaterial, this court having decided that the qualification of State Librarian may be sufficiently evidenced by the certificate of the Governor, although no record thereof be made in any book. 9 Md. Rep., 101, 102.

For these reasons we concur in the opinion of the circuit court, that the return is insufficient and ought to be quashed, and that the peremptory writ of mandamus ought to issue.

By the 7th section of the 7th article of the Constitution, it is provided, that “the State Librarian.shall be elected by the joint vote of the two branches of the Legislature, for two years, and until his successor shall be elected and qualified.”

The appellee having been duly elected and qualified, and it not appearing that any successor has been elected and qualified, this court considers that,, by the express provision of the constitution, his right to the office is still continuing, and therefore we do not admit the force of the objection to the writ urged on the part of the appellant, upon the ground that the term of two years mentioned in the constitution has elapsed.

Judgment affirm,ed, with costs.