Magruder v. Swann

Bowie, C. J., 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.. — 203 — 'Messrs. Daniel E. Magruder and ¥m. II. Tuck were voted ■for to fill the office of circuit judge of tbe second judicial 'circuit. The former received a majority of votos, "but being ineligible on account of non ago did not claim a commission, and none was issued to him. 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 — 204 — judge of the said circuit. On the filing of which petitions, the incumbent filed in writing his disqualification to sit in the said cases, and afterwards Beverdy Johnson, Jr., Esq., was appointed special judge, from whose decision these appeals are taken. 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 — 205 — aforesaid elections bo was a candidato for the office of the judge of the second judicial circuit, or in any manner entertained or encouraged the opinion that there was on either of said occasions, any vacantly in the office of judge of the said Circuit, or that any election could on cither occasion he held for such judge; the respondent “claiming and believing that in virtue of his appointment, commission and confirmation by the Senate as before stated, he held the office of said judge for and daring all the residue of the term to which the said Nicholas Brewer had been elected as aforesaid; and this respondent still claims and believes, and so insists, that he is entitled to be such judge, and to hold said office,” etc. 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. — 206 — The seventh section of the 4th Art. of the Constitution, •declaring “no judge shall sit in any cause wherein he may bo interested, etc, is but a repetition of a cardinal maxim of justice and the common law. The State, is the fountain of justice. Courts are but the conduits through which it is distributed, and judges are the organs of the Court. The theory of all republican government ■ is that the judicial function is a public trust for the protection of society. The Court personates the majesty of the law, before which, all men are equal, “ubi jus, ibi reme&iumThe Court and judge are by no means an unit. They co-exist, but not always in the same person. The Court is open to all suitors even against the judg'e himself. His authority extends to all cases in which he is not disqualified by interest, relationship to the parties, or former professsional connection with the cause; -when these occur, his power as judge ceases, except to certify his Incapacity to act. 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. — 207 — The third plea to the jurisdiction is, “the Governor cannot be called upon to answer before the Courts for the' manner in which he may administer his branch of the-Government.” The proposition presented by the plea ire its general form is one of which there could be no doubt. No Court in' this Country has ever made any such pretension. The question is, whether the Governor may be required by mandamus to do some specific thing or act which the Constitution, or law, requires him to do-, and in the execution of which he is a mere minister of the law and has no discretion. This Court lias recently endeavoured to distinguish between the exercise of the political and discretionary powers of the Executive Department and the ministerial duties. Bearing in mind the injunction of the Declaration of Rights that the several departments of the Government should be separate and distinct and no person exercising the functions of one of said departments should assume or discharge the functions of the other,” we mast look to the' Constitution to see how those powers are distributed. They are divided and classified into Articles, distinguished as-Art. 1, The Elective Franchise; Art. 2, The Executive department; Art 3, The Legislative department; Art. 4,. The Judiciary department, etc. 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 ” — 208 — “Sec. 15. If in any call of election for Judges, Clerks of the Courts of Law, and Registers of Wills, the opposing candidates shall have an equal number of votes, it shall be the duty of the Governor to order a new election ; and in case of any contested election, the Governor shall send the returns to the House of Delegates, who shall judge of the . election and qualification of the candidates at such election.” 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. — 209 — It may be said the Governor in all instances must be satisfied of the regularity of the returns of the clerks. Ordinarily, he possesses no control over them, but acts upon the “prima facie” result. If they are irregular, the parties interested have their remedy by contesting the election before the appropriate tribunal. 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 — 210 — Chief Magistrate,, and. duties imposed on subordinate office?® by law. It said, it by no means follows that every officer in every branch of that department (the Executive) is under the exclusive direction of the President, “ Congress had the right to impose upon any executive officer any duty they' may think proper which is not repugnant to any rights' secured and granted by the Constitution, and in such cases the duty and responsibility grow out of the law, and are subject', to its control and not to the direction of the President. All the judges,, however they differed on other points, were of ©pinion that the Act requiring the Post Master General to-give a certain credit was a mere ministerial Act, and a man-' damns was ordered. 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* — 211 — legality of the relator’s claim being thus established by a final judgment of a Court of competent jurisdiction, the relator should then apply to the Governor for a commission, who would not hesitate to issue it, for the reason that such judgment of a Court of competent jurisdiction, as to the validity of the relator’s election and his right to a commission would afford the Executive the most conclusive -evidence of the fact that the relator was the individual legally elected to the office in question. If the Executive refused to issue a commission to one whose right had been judicially determined, it was held a mandamus would lie. In the subsequent case of Lowe vs. Towns, Governor of Ga., 8 Ga., 360, the same Court, reviewing all the authorities in answer to the question, “ why may not the Governor, when the performance of this ministerial act so required by law is essential to the completion and enjoyment of individual rights, be considered “ quoad, hoof not as an executive, but as a merely ministerial officer, and therefore liable to be directed and compelled to perform the act by mandamus ¶ responded: “ Yiewed as a strictly legal question, we cannot offer any satisfactory reason why he should not according to general principles of law; and it was in this point of view alone this question was eonsidex*ed by this Court in Bonner vs. Pitts; indeed, no other view of it was presented for our consideration on the argument of the case. But while we are unable to give a satisfactory legal reason why the remedy sought should he denied the citizen, yet we are satisfied that for political reasons alone the remedy by mandamus ought not to be enforced against the Chief Executive officer of the State.” 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 — 212 — and discretion in the officer against whom the mandcvnms is prayed it will be refused,” referring to the cases collected in 12 Md. Rep., 336. 17 How'd, 230. Notwithstanding their annunciations of the general principle to be deduced from the cases, it is supposed that this Court, by their citations from 8 Ga., and 1 Ark., so far adopted them as to be bound by their 'application to the facts involved in them. 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 — 213 — remains to examine tbe questions arising upon the construction of tbe several clauses of the Constitution referred to, and determino which of the claim ants to the office is entitled. 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 — 214 — -true construction of which. Article it is contended, the in•cumbent, under his present commission, is entitled to hold his office until the expiration of the time for which the late •Judge Brewer was elected. 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 — 215 — and with the advice and consent of the Senate, and that he shall hold his office for the term, of six years. The 8th section of the 11th Art. contained a continuing clause in the same language as is used in the present Constitution. It was held the Governor could not per se, without the advice and consent of the Senate, appoint a successor to the incumbent, but he might be superseded by the concurrent action of the Governor and Senate. The Court further held that “in the event of resignation, death or removal of the officer during the recess of the Senate, the Governor would have the right to issue a temporary commission, because, in that case there would be a vacancy which he would be authorized to fill.” 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 — 216 — fill. The special, such as are particularly provided for, as in the 25th and 5th sections'' of Art. 4, of the Constitution of 1851 and 1864. Under these provisions, as interpreted in the foregoing cases, an actual vacancy having occurred in the office of judge by death, it was competent for the Governor to fill the same by issuing a temporary commission which continued in force “to the end of the ;next session of the General Assembly or till some other person is appointed to the same,” etc. Art. 2, see. 14, Constitution 1864. This commission, by the continuing clause, (schedule, sec 6,) carried the incumbent over the interval between the appointment and the meeting of the General Assembly of January 1865. The Governor then, by and with the advice and consent of the Senate, appointed the incumbent to fill the vacancy (which had occured in the recess of the Senate,) “until the next general election thereafter, whether for members of the General Assembly or county officers, whichever shall first occur,” (Art. 4, sec. 5, Constitution 1864,) under the special provision, which according to the principle of Cantwell vs. Owings cannot be disregarded, being the mode of filling the vacancy, clearly and explicitly provided. Holding under this appointment, the incumbent cannot, we conceive, hold the office for and during the term for which Ids predecessor was elected. His authority is derived from the 5th section of Art. 4, of the Constitution of 1864, which expressly limits it as above indicated, which by legal intendment and construction is extended to the election and qualification of his successor. Vide Sappington vs. Scott, 14 Md. 53 to 56. Thomas vs. Owens, 4 Md. Rep., 189. 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 — 217 — circuit sbowiug tbat the petitioner had received the greatest number of votes for judge of that circuit, in the language of the Constitution, he should “ be declared to be elected,” and receive a commission from the Governor for the office to which he has been elected. (Decided June 28th, 1866.) 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.