Ijams v. Duvall

Page, J., delivered the opinion of the Court. The facts of this case, as presented by the record and conceded by counsel at the argument, may be briefly stated as follows: At the election of 1895 Grafton Duvall and [259] Alfred Ijams were opposing candidates for Judge of the Orphans’ Court of Anne Arundel County. Duvall was returned elected, received a commission from the Governor, duly qualified and entered upon the discharge of his duties as Chief Judge. The appellant having contested the election, the House of Delegates, at the session of 1896, passed a resolution declaring Duvall “not duly and legally elected,” and ordering an election to be held on the 21st of April, 1896, in pursuance of section 12, Article 4 of the Constitution. Because of certain legislation passed at the same session this election could not be, and was not held, so that the appellee has continued to hold the office up to the present time. On the 23d of April, 1896, the Governor, on the supposition there was no legal occupancy of the office, appointed the appellant to fill the vacancy thereby occasioned. The appellant having received the commission and taken the proper oath, demanded of the appellee the possession of the office; and this being refused, he has applied for a mandamus to compel the appellee to deliver the possession thereof. The application of the appellant is based upon the theory that the action of the House of Delegates made a vacancy within the meaning of the 40th section of Article 4 of the Constitution. That section, after providing for the election of Judges of the Orphans’ Court, defining their powers and fixing their compensation, proceeds, “in case of a vacancy in the office of Judge of the Orphans’ Court the Governor shall appoint, subject to confirmation or rejection by the Senate, some suitable person to fill the same for the residue of the term.” From the bare reading of this clause, in connection with the entire section, it seems obvious .the “ vacancy ” here referred to is a vacancy occurring after an election by the people. The section first provides for the election of three men to be Judges of the Orphans’ Court. They are to be citizens of the State and residents for the twelve months preceding in the city or county in which “they may be elected, and shall have all the powers [260] now vested in the Orphans’ Court, subject to such changes as the Legislature may prescribe.” In case of a vacan ay the Governor shall appoint, subject to confirmation or rejection by the Senate, “some suitable person to fill the same for the residue of the term.” It would seem to be clear that the intention here' manifested, is that the Judges of the Orphans’ Court are to be elected by the people; and the “vacancy” referred to is one that may occur after there has been such an election. In other words it is a vacancy created by the death, resignation or by some other cause of one or more of the “ three men” who have been chosen by the qualified voters. This interpretation is supported by a fair construction of those other clauses of the Constitution which provide for cases when there has been a failure, for any cause, to obtain a legal expression of the will of the people. By section 12, Article 4, “if in any case 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, which shall judge of the election and qualification of the candidates at such election ; and if the judgment shall be against the one who has been returned elected, or the one who has been commissioned by the Governor, the House of Delegates shall order .a new election within thirty days.” It will be observed how careful the framers of the Constitution have been to -preserve to the people the right to constitute these offices. In case of a tie, the Governor cannot appoint, but must ■order a new election, and in case of a contest the House of Delegates cannot declare who is entitled, but must refer the whole matter back to the people at a new election to be field within thirty days. If it be held that the judgment of the House against the ■one who was returned, creates a vacancy to be filled by the appointment of the Governor, then the obvious purpose of [261] the sections of the Constitution here cited (that the people shall elect the Orphans’ Court) is absolutely ignored. Moreover, what would logically result from such a position? If the declaration of the House, ipso facto, operates to create a vacancy, such vacancy begins and continues from the data of the passage of the resolution. There occurs, therefore, a vacancy before .the election can be held, and the Governor, under sec. 40 of Art. 4, can appoint; and his appointee, would hold “ for the residue of the term and all this despite the clear intention of the 12th section, that in such, cases the new officer should be chosen by the people. An interpretation fraught with su.ch serious and peculiar consequences would violate every canon of sound construction. Constitutions should be construed as entireties, and in such manner as to give a meaning and full effect to each word in the whole instrument. Cooley Const. Law, 58 ; Thomas v. Owens, 4 Md. 225. By the 1 ith section Article 4 of the Constitution, election returns are to be made to the Governor, “who shall issue commissions to the different persons for the offices to which they have been respectively elected; and in all such elec-7 tions the persons having the greatest number of votes shall be declared to be elected.” Under this section it is the duty of the Governor to issue his commission to the person, regularly and duly returned as elected, although the election of such person may be contested, whereby the Governor, under the 12th section, is required to send the returns to the House of Delegates. Brooke v. Widdicomb, 39 Md. 402; Groome v. Gwinn, 43 Md. 624. The possession of such commission, and the proper quali-: fications under it confer upon the person the right to the office. In Brooke v. Widdicomb, supra, this Court said, “the commission having been properly issued to the appellee, and-he having given bond and taken the oath required by law, there appears to us to be no valid grounds for denying to him the right to the office * * His title is not impaired or affected by the pending contest before the House of Delegates.” It must, therefore, be held that Duvall was prop [262] erly in possession of the office; and if he was he is entitled to hold it until a successor has been properly and legally appointed and qualified. Robb v. Carter, 65 Md. 334. (Decided February 24th, 1897). The resolution of the House of Delegates did not and could not name a successor; all that was within its power was to give judgment against the incumbent and order a new election ; that it did, and the appellant now holds the office only until some other person has been legally selected and qualified to take the place. How that person is to be chosen is clearly pointed out by the 12th section. He is to be elected by the people at the “ new election.” That method of filling the place having been provided, it is not within the power of the Governor under the general appointing power to name him. Cantwell v. Owens, 14 Md. 215; Magruder v. Swann, 25 Md. 215. In the last mentioned case this Court affirming the preceding case said, “ a 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.” Here, we think, there was no vacancy, Duvall holding over until his successor has been duly appointed and qualified ; but even if there was, the Governor would have no power to appoint, because by the 12th section another mode of filling the vacancy is “clearly and explicitly provided.” It has been urged that a refusal to grant this mandamus would operate to retain in office a person whom the House of Delegates has declared was not legally elected. But what we have said in no wise affects this declaration. It does not become us to suggest'how this can be remedied. Our function is merely to expound the law, not to devise remedies. We should be open, however, to just censure if, to meet the supposed exigences of the particular case, we were to deal lightly with principles long established and approved by the eminent jurists that have preceded us. Order affirmed with costs.