22 Md. 170 | Md. | 1864
Lead Opinion
delivered the opinion of this Court.
The peculiar circumstances surroundingt his case re-. quiring it should be promptly decided, we have only time to announce the conclusions arrived at, and refer to a few of the leading authorities on which they are based: The case has been argued with an admirable spirit of courtesy and moderation, and much eloquence and learning.
The brief of the relator’s counsel states: — “The object of the proceedings is to obtain an exposition of the rule of law which ought to guide the discretion of the Governor in his ascertainment of the result of the late election had for the adoption or rejection of the ‘New Constitution.'”
The relatoras prayer is substantially, that the Governor of Maryland show cause “why a writ of mandamus ought not to be issued, commanding him in ascertaining the number, of votes cast at the said late election held as aforesaid,” to count certain votes which were tendered and rejected, and to exclude certain votes which shall appear
From this brief analysis, it appears the proceeding is one of the most momentous consequence, and should be treated with the greatest deliberation. Our first duty is to inquire whether it is a proper subject for judicial interpretation and interposition. By our organic law, the powers of government are distributed into Legislative, Executive and Judicial. Wo are admonished by the Declaration of Rights, that these powers “ought to be forever separate and distinct from each other, and no person exercising the functions of one of said departments, shall assume or discharge the duties of any other.”
The 2nd Article of the Constitution is, “the Executive power of the State shall be vested in a Governor,” * *,*. “He shall take care that the laws be faithfully executed.”
The 6th section of the Act of 1864, ch. 5, known as the Convention Law, required the Constitution and form of Government adopted by the Convention to be submitted to the legal and qualified voters of the State for their adoption or rejection, at such time, and in such manner, and subject to such rules and regulations as said Convention may prescribe; and the provisions thereinbefore contained for the qualification of voters and the holding of elections, provided in the previous section of the Act, were made applicable to the election to be held under that section.
The 8th section further enacts that when the Governor shall receive the returns of the number of ballots cast in the State for the adoption or rejection of the Constitution submitted by the Convention to the people, ii upon counting and casting up the returns as made to him as herein-before prescribed, it shall appear that a majority of the legal votes cast at said election are in favor of the adoption of the said Constitution he shall issue his proclamation to the people of the State, declaring the fact, and he shall take such steps as shall be required by the said Con
Is the power and authority conferred on the Governor by this Act, a political or judicial power? A late eminent jurist whose recent death has been lamented as- a national calamity, in the case of Luther vs. Borden, 7 How., 1, expressed himself thus strongly: “Certainly the question which the plaintiff proposed to raise by the testimony he offered, has not heretofore been recognized as a judicial one in any of the State Courts. In forming the Constitutions of the different States, after the Declaration of Independence, and in the various changes and alterations which have since been made, the political department has always determined whether the proposed Constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision. Courts of law will not interfere with the exercise of high discretionary powers vested in the Chief Magistrate of the State: for obvious political reasons; among others, — because, as Governor of the State, deriving his powers from the Constitution thereof, he has been made a co-ordinate, separate, distinct and independent department of the Government. ’ ’
In the case of Lowe vs. Towns, Gov. of Ga., 8 Ga. Rep., 372, the Supreme Court of that State said: “The ultimate effect of this remedy (mandamus') in case of refusal by the Governor to obey the laws of the land, would be to deprive the people of the State of the head of one of the departments of the Government.
Chief Justice Maiishall in the case of Marbury vs. Madison, 1 Cranch, 145, says: “that the President is invested with certain important political powers, in the exercise of which he is to use his own discretion* and is accountable only to his country in his political character and to his own conscience.”
The Chief Magistrate or Governor of the State, tears
Independently of all political considerations, if the question was a purely judicial one, this Court could not consistently with decisions in other States and in our own, grant the prayer of' the relator. The general principle laid down in all these, almost without exception, is, that where the acts to be done require the exercise of judgment and discretion in the officer against whom the mandamus is prayed it will be refused. Vide cases in Green vs. Purnell, 12 Md. Rep., 329. The result of these decisions.is, that the duty and power to decide the questions, which we are now asked to determine, are devolved upon the officer or Gfovernor without appeal, over whom in that respect, the judiciary have no control or revisory power.
We have thus succinctly announced the general principles which lead us to the adoption of the conclusion, that the order of the Superior Court in this case should be affirmed.
The Court has been invoked to enter into the constitutional powers of the Convention, and express opinions upon the validity of their acts, even if they should hold that the right to issue a mandamus did not exist, and they have been referred to the eminent examples of the Supreme Court through their Chief Justices in some cases, where they declared the law, although they could not enforce it. Without dwelling on the immense moral, political and legal influence of that tribunal, to which we cannot pretend, we respectfully suggest there is no parallel between the cases. Those cases in which the Supremo Court adopted that course, with one notable exception were not cases in which society was shaken to its foundations by civil discord, and parties arrayed against
Concurrence Opinion
concurred in the ruling of the majority of the Court, affirming the order of the Court below, but filed the following separate opinion dissenting from certain of their conclusions:
I assent to that part of the opinion of a majority of the Court which denies the mandamus asked for, on the ground that the duties devolved upon the Governor by the Act of 1864, ch. 5, in ascertaining and announcing the legal votes upon the adoption or rejection of the proposed New Constitution, are not purely ministerial in their character; but that they require the exercise of judgr ment and discretion on his part, necessarily devolving upon him the duty of passing upon and deciding the various questions argued before us, and upon which we have been called upon 'to pass. In such case the law is well established that a writ of mandamus will not be granted. Green vs. Purnell, 12 Md. Rep., 329, and the cases there referred to, and many other cases might be cited.
I do not agree, however, with my brothers in thinking the power devolves upon the Governor, now under consideration, is in any sense a political, executive power, belonging to him virtute officii,-and not a proper subject for judicial investigation. That subject, however, having been submitted by law to the decision' of the Governor, I forbear the expression of any opinion upon it..
Order affirmed.
