25 Md. 173 | Md. | 1866
delivered the opinion' of this Court:
In the interval between the adoption and promulgation of the present Constitution, a vacancy, occasioned by the death of the late Judge Brewer in the office of judge of the second judicial circuit, their embracing Anne Arftndel, Calvert, Howard and Montgomery Counties, was filled by the apfpóintment of the Hon. William II. Tuck by Governor’ Bradford, in the recess of the Senate.
By the provisions of the new Constitution, which took effect on the first of November, 1864, the second judicial circuit was reduced to two Counties, Anne Arundel and Calvert.
A-t a? general election held tho 8th of November,. 1864..
At the ensuing session -of the General Assembly begun on dhe 1st of January, 1865, the Hon. Win. H. Tuck was nominar "ted by the Governor, -and by" and with the advice and «consent of the Senate appointed judge of the second judicial •■circuit.
On the seventh of November, 1885, a general election for county" officers, and an election for circuit judge of the second judicial circuit was held in the counties of Anne Arundel and Calvert, at which the petitioner, a resident of Calvert county, legally" qualified, was duly certified and returned by the clerks of the several Counties of the circuit, as having (received the greatest number of votes.
The petitioner applied to Governor Bradford for his •commission, and failing to obtain the same renewed Ms application to the present Governor,, the respondent, who ■declined to issue the commission for the reasons assigned in his answer. Being unable to obtain Ms commission, the ■petitioner, on the 19th of January, 1866, took and subscribed the oath required by the Constitution, before .the deputy ..clerk of the Circuit Court for Calvert county, and having demanded possession of the office of circuit judge of the incumbent, the Hon. Wm. TL Tuck, .and being refused, the petitioner filed in the Circuit Court for ihe second judicial circuit two petitions, setting forth the above facts, one praying a mandamus against the Hon. Wm. II. Tuck commanding Mm to deliver possession of the office of judge of the second judicial circuit, to the petitioner, the other, praysa mandamus against tbe respondent, Governor of the State, commanding him to issue a commission to the petitioner, as
These cases presenting the same facts and depending (with a single exception) on the same principles and authorities, having been argued together, all the points common to both will, for brevity and convenience, be disposed of in this, against the Governor. Deference for the high official posh tion of the respondent, as well as the intrinsic importance and novelty of some of the questions, induce us to present the objections to the relief prayed substantially in the language of the answer.
These assume the double form of pleas to the jurisdiction and defences upon the merits.
Under the first class, it is said, the petitioner presents a case of “ contested election,” in which event the Constitution requires “the Governor shall send the returns to the House of Delegates who shall judge of the election and qualification of the candidates for such election.” Const., Art. 4 § 15. The “contested election” spoken of in this clause clearly means, (as the context shows,) a contest between candidates at such election, not any dispute about the office of judge, in which one party claims by appointment of the executive, and the other by election of the people. The power given the House of Delegates in such cases is, to “judge of the election and qualifications of the candidates.” They have no power to judge of the rights of persons who were not candidates and claim under some other authority, denying, perhaps, the regularity of the election or the right of the people to fill the supposed vacancy. This is the position of the present incumbent of this office. In his answer, (which in the arguments of these cases, as one, is considered common to both,) ho expressly denies that at cither of the
The second objection to the jurisdiction is, “that no judge can be rightfully called upon to oust himself of the jurisdiction he exercises.” This is not based upon any authority, but rests altogether upon arguments derived from what is supposed to be due to tiro dignity of lire bench, and the preservation of its purity. The provisions of the Constitition, for the trial of causes, In case of the disqualification of the incumbent, (Art. 4, sec. 7 and 8,) are said to apply only to cases where the judge is afieclod in person or property, but not to those involving his rigid to Ids cilice. Neither the language of the Constitution, nor its spirit, in our judgment, warrants any such limitation to its meaning. An office is often the most valuable property a person possesses. If the owner of laud, goods or chattels may come into the Court in which the judge presides, and demand a writ against him for mi injury to these, what conceivable reason is there for excluding one who claims the high functions of the judicial office to which a salary is annexed, which he charges is withhold from him by Tie incumbent? The dignity or purity of the bench is not more impeached in one case than the other. These can only bo vindicated by submitting such claims to some disinterested and impartial judge who will declare the right.
It would be a singular defect in a system of government, where the judiciary are elective, if there should be no tribunal, in which the right to the most important of offices can be determined. No disqualification of a judge can be so obvious and so absolute as that which involves the question of his title to the office he occupies. When that is questioned he comes immediately within the letter and spirit of the seventh section of Art. 4, above cited, and no alternative is left but to certify his disqualification. This view seems to have been taken by the learned incumbent of the office, as he immediately certified his inability to sit, and a special judge was appointed; yet he, as well as the respondent in this case, pleads and relies on this defence to the powers and jurisdiction of the Court. . But for the earnest reliance upon this plea to the jurisdiction, we should not have deemed it necessary to enlarge so much upon a point which we consider so untenable.
The duties of the Governor are not however all found in Art. 2, Entitled the Executive, on the contrary the duty now in question is found in Art. 4, sec. 14, as an incident to the' election of judges and other officers. After providing for the election of judges, that section requires “ all elections-of judges and other officers, provided ibr by this Constitution ( States5 Attorneys excepted) shall be certified and the returns? made by the clerks of the respective counties 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 ”
Sec. 16. All public commissions and grants, shall run thus: “ The State of ’Maryland, etc,” and “ shall be signed by the Governor with the seal of the State annexed,” etc.
These are auxiliary ministerial duties imposed on the Governor preliminary to the qualification of the judges and other officers, in the discharge of which, he has been invested with no discretion but is imperatively required by the organic law to perform in order to keep the departments of government in motion.
The clerks! certificates determine “ who has the greatest number of votes, ” or whether “ the opposing candidates have an equal number of votes.” In either event the injunction of the Constitution is equally peremptory. The Governor does not make any inquiry beyond, and is ordinarily concluded by them. All public commissions and grants are included in the same section and sentence as analagous in their nature. If the petitioner now sought for a mandwrrms for a patent or grant upon a warrant for land which had passed through all the formalities of the land office, would any doubt be entertained of the result ? The Governor acts alike in both instances as the costodian of the great Seal of the State to be annexed to his sign manual.
This is not like the case in which, previous to the adoption of the present Constitution, the Governor was specially invested with large powers delegated to him solely requiring the exercise of great judgment and discretion. There, was a quasi judicial function to be executed upon certain conditions, of which ho was to judge.
The commission, like a patent, is primary proof of the title of the officer or patentee, but the Courts may inquire whether the one or the other was properly issued. In many instances, the commission is a necessary prerequisite to the right of qualification to office. Each of the co-ordinate departments of the Government is independent of the other in the sphere of its action, and has duties to perform in which it is not subject to the control of the other. But this independence does not proceed from the grade of the officer so much as the nature of the act to be performed.
The Governor, in his political and executive duties requiring the exercise of his judgment and discretion, is entirely independent of any other authority. But all judicial power is as absolutely committed to the Judiciary Department, as political or executive power is to the Governor. Among these judicial duties is the decision of controversies between mail and man, whether they involve the right to office, life, liberty or property, or arise under the provisions of the Constitution, Statute or Common Law. We are sustained in these views by the very lucid and forcible opinion ox the Supreme Court of Ohio, in the case of Whiteman vs. The Governor of Ohio. 5 Ohio Rep., 533, 535, in which all the preceding cases are reviewed. See also Cotton vs. Ellis, 7 Jones N. C. Rep., 549. Marbury vs. Madison, 1 Cranch, 137.
The application of these principles to the higher officers of the Executive department of the Federal Government, was made in Kendall’s case, but the Court discriminated between constitutional duties imposed on the President or
In the case of Decatur vs. Paulding, Secretary of the Navy, 14 Peters, 497, the Court thought the duty imposed by Act off Congress on the Secretary, in relation to the claim of the relator,- was a discretionary duty, with which they could-not interfere, and the mandamus was refused.
The case of the Pacific Rail Road vs The Governor, 23 Missouri, determined nothing definitely as to the liability of the Governor to a peremptory manda/mns. After reviewing the authorities pro and com the Court said : “ The question involved in this case, about which our opinion alone* is sought, is presented in such a -way by the argument of the parties as to render it unnecessary to decide whether a mam,damus can issue to the Chief Executive requiring him to do* any act. Nor do we determine it or preclude him from insisting on his exemption from it,” A rule nisi or alternative: writ was granted.
The Supreme Court of Geo. in the case of Bonner vs The State, 7 Ga., 480, after reviewing many cases, held that the: relator ought to have proceeded against Bonner (who held by color of right under a commission,) by “quo warranto f and obtained a judgment of ouster against him. The*
The case of Hawkins vs. Governor, 1 Ark., 570, is to the same effect. After citing these eases this Court, in the case of Miles vs. Bradford, thus summed up their result. The general principle laid down in all these, almost without exception, is, “that where the act to be done -requires judgment
The most casual examination of the opinion in Miles vs. Bradford shows, that the gist of that case was the character of the function to be exercised, whether the act to be done was political, quasi judicial, or ministerial. The former classes of powers were shown to be beyond judicial control, the latter to be within the jurisdiction of the Courts. The exigency of occasion requiring immediate decision, the Court’s opinion was professedly but an announcement of the conclusions arrived at, with a brief reference to some of the authorities relied on.
The cases cited were iised to sustain the position that the Executive in his political or discretionary po-wers was beyond all judicial interference, not to sanction the application of the principle to the facts of each case. Although it was said in that case that the Governor bears the same relation to the State that the President does to the United States, and in the discharge of his political duties is entitled to the same immunities, privileges and exemptions. It is nowhere said that the President or Governor, in the discharge of mere ministerial duties would be exempt from judicial process.
The deduction from a comparison of all the authorities cited is, that the Governor, like all other officers in the discharge of mere ministerial duties, is subject to the writ of mandamus, which cannot be denied to a suitor in such a case without acknowledging an authority higher than the law.
The jurisdiction of the Court being thus established, it
The respondents rely on the Gfch section, Art. 12, entitled schedule, which declares “ all officers, civil and military, now holding office, whether by election or appointment under the State, shall continue to hold end exorcise their offices according to their present ion lire, unless otherwise provided in this Constitution, until they shall bo superseded pursuant to its provisions, and until their successors bo duly qualified.”
The tenure referred to, the respondent insists, was under the 20th sec. of the Constitution of ’51, until the next general election of delegates thereafter, which election was, by the 7th section of the 12th Art. of the new Constitution, held on Tuesday after the first Monday of Nov., 1861. At which election, the petitioner not being elected by reason of his non-age, and the failure to elect not being by reason of a tie vote, there is no provision in the Constitution for another election, and the powers or provisions of the Constitution were exhausted by the election of 1361. Tho case, therefore, presents a “ casus omissus in the new Constitution, which can only be supplied by an Act of the Legislature. According to which construction, the incumbent will hold and exercise his office under the 6th section of the 12th Art., until Ms successor be duly elected and qualified. As an alternative proposition, it is insisted, if there is any provision in the Constitution for the occurrence of a vacancy in the judicial office between its ratification by the people, and the time it went into effect, such provision is found in the 27th sec. of the 4th Art., the language of which is “ the present judges of the Circuit Courts shall continue to act as judges of the respective Circuit Courts within the judicial Circuits in which they respectively reside until the expiration of the term for which they were respectively elected, and until their successors are elected and qualified,” vis; etc. By the
The alternative view of the respondent — that if there is any «clause of the Constitution of 1864 providing for the supply •of a vacancy occurring between the adoption and the taking •effect of that instrument, it is the 27th section of Article 4 — is negatived by the language of that section alone, which no verbal criticism can enlarge so as to embrace judges appointed by the Governor. However interpreted, whether as speaking at the time the instrument was framed or at the time it became effective, it has a special exclusive sense which cannot be misunderstood. No latitude of construction, can justify the reading of “ elected” as the synonym of “appointed.” The general policy of electing the judiciary, impressed on every clause of the Constitution as well as its” language, makes it impossible to construe the word “elected” in any other than its accepted popular sense, chosen by the people. This view, therefore, must be rejected.
The continuing clause, being the 6th section of the schedule, Art. 12, is, then, the only section of the Constitution on which the claim of the incumbent rests. The office of that clause is to preserve the machinery of the government in the change from one Constitution to another. Its operation is not to suspend the authority of the new Constitution, but to preserve ■or continue the corps of officers holding under the old or former government, until their successors or themselves were Appointed under the new. This is illustrated .by the case of Watkins vs. Watkins, 2 Md. Rep., 353. John N. Watkins, the appellee in that ease, under the Constitution existing prior to 1851 held the office of Adjutant General during good behavior. The Constitution of 1851, provided that the Adjutant General shall be appointed by the Governor, by
In the case of Cantwell vs. Owings, 14 Md. Rep., 215, this Court upon an inquiry into the validity of the appointment of a Justice of the Peace to fill a vacancy occurring in that office, held the vacancy could not be filled by an appointment of the Governor under the general appointing power of the then Constitution, when by a particular provision of the same instrument another mode of filling the vacancy was clearly and explicitly provided. These two decisions furnish a lcey to the solution of the present question, as far as is material to the merits of this case; the 11th and 12th sections of Art. 2 of the Constitution of ’51, construed by the Court in the case of Watkins vs. Watkins, correspond with, and are identical in sense with the loth and 14th sections of Art. 2 of the Constitution of ’64, and the 25th section of 4th Art. of the former, with the 5th sec. of 4th Article of the latter, with an exception hereinafter referred to.
The appointing power conferred on the Governor by these several sections- is original, secondary and special. . The original includes all civil and military officers of the State whose appointment or election is not otherwise provided for. The secondary, all vacancies occurring during the recess of the Senate in any office which the Governor had power to
The election for county officers occurring in November, 1865, the period arrived at which an election was to be hold to fill the vacancy thus temporarily filled. The result of that election, as certified by the clerics, designates to whom the commission should be issued. The certificates of the clerics of the several count!,os composing the second judicial
This Court will, therefore, reverse the order of the Court below dismissing the petition of the appellant, and direct a mandamus to be issued as prayed.
Petition dismissed.