Covington v. Buffett

Briscoe, J., delivered the opinion of the Court. This appeal was heard on the 10th of October, 1899. The question involved being one of public importance and relating to an election to be held on the 7th day of November, 1899, a per curiam opinion announcing our decision, as requested by the counsel on both sides, was filed on the 13th of October. We will now state the reasons for that decision.

It appears that the appellant on the 2nd of October filed a petition in the Circuit Court for Talbot county for a writ of mandamus to Compel the appellees, the Board of Superviors of Election for that county, to print his name, as the nominee of the Democratic party of Talbot county, for the office of State Senator on the official ballot to be voted for at the general election to be held on the 7th of November, 1899, and to deliver as required by law the official ballot containing his name to the proper election officers. It is ⁵⁷⁶ alleged by the petition that the appellant has all the requisite qualifications for the office; that his nomination was duly made and certified as provided by law; that the Hon. Henry C. Dodson, who was elected as Senator from that county at an election in November, 1897, for a term of four years, has accepted a Federal office and has removed from the county, thereby creating a vacancy in the office, and that the appellees 'have refused to place his name on the official ballot, although requested so to do. The answer to this petition states the following reasons why the writ should not issue; hecause there exists no power in the Board of Supervisors of Election, nor in the convention of any political party, nor in any judicial tribunal to declare a vacancy in the office prior to the expiration of said term, but by express constitutional provisions elections for Senator are held at regular intervals of four years, and that the term of each Senator so elected lasts for four years and that further, each house is the judge of the qualification and election of its members as prescribed by the Constitution and laws of the State, and that in consequence no other person or body than the Senate of the State of Maryland is empowered to pass upon the question as to the qualifications of Henry Clay Dodson for holding the seat of Senator of Talbot county, and that further the Constitution of the State of Maryland contains in sec. 13 of Art. 3 definite provisions in regard to the method of ordering and holding an election for Senator in the event of disqualification, and neither of the methods so provided for has been adopted in the present case, a warrant for a new election not having been ordered by the President of the Senate or the Governor of the State of Maryland, and that in consequence there can be no election for Senator from Talbot county in the State of Maryland on the 7th day of November next; and that a Court of Justice has no power to order such, and the petitioner is therefore not entitled to have his name placed upon the official ballot as candidate for Senator at the general election of November 7th, 1899, ⁵⁷⁷ and that the Court will not compel the performance of a nugatory act, nor destroy the separation of power between the judicial, legislative and executive branches of the State Government.

To this answer a demurrer was interposed and from the pro forma order overruling the demurrer and dismissing the petition this appeal is taken. The controlling question, then, under the pleadings in this case, is whether this Court has jurisdiction to determine whether a vacancy exists in the office of Senator for Talbot county. It is quite clear that unless a vacancy does exist no election can be held for the purpose of electing a Senator, and to issue the writ would have no beneficial effect. By the 8th section of Article 3 of the Constitution of this State, the term of Senator is fixed at four years, and an election of one-half of the Senators, as nearly as practicable, shall be held in every second year.

There can be no dispute that if the Hon. Henry C. Dodson was