Harwood v. Marshall

Tuck, J., delivered the opinion of this court. Four prominent questions arise on the present appeal: — ■ First, whether the writ of mandamus is the appropriate remedy? Second, whether the appellee has shown a right to he admitted to the office of Librarian? Third, whether the order appealed from is for an alternative or peremptory mandamus$ and Fourth, whether, in case of a reversal, a procedendo can be issued? 1st.

As to the remedy. By the act of 1806, ch. 90, sec. 9, the county courts were clothed with the powers of the general court in cases of mandamus. As the circuit courts have the jurisdiction of the county courts, their powers, in these cases, are also to be measured by those of the general court, which we are told, in Runkel vs. Winemiller, 4 H. & McH., 448 , were similar to the jurisdiction exercised by the court of King’s Bench; and by which, it was said, the general court might, and of right ought, for the sake of justice, to interpose in a summary way, to supply a remedy, where, for the want of a specific one, there would otherwise be a failure of justice.” The cases on this branch of the law are very numerous. ⁹⁸ The force of the maxim, “ est boni judiéis ampliare jurisdictionem," seems to have been almost expended in the application of this remedy, to meet the emergency of new cases. Tapping, 3.

Com. Dig., Title, Mandamus. Without citing many of the decisions, we content ourselves with referring to what Lord Mansfield said, in the case of Rex vs. Barker, 3 Burr., 1266, as a precise and explicit statement of the principle governing the use of this writ according to the earlier authorities, and which has been generally, if not universally, recognized since his time: “Whenever there is a right to execute an office, perform a service, or exercise a franchise, (more especially if it be in a matter of public concern or attended with profit,) and a person is kept out of possession, or dispossessed of such right, and has no other specific remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.” — “It ought to be used upon all occasions where the law has established no specific remedy, and where, in justice and good government, there ought to be one.” This view of the office of the writ of mandamus was adopted in the case of Runkel vs. Winemiller, 4 H. & McH., 448 , and in Marbury vs. Madison, 1 Crunch, 168. See also 3 Bl.

Com., 110. Tapping on Mandamus, 172, 173. It is said, however, that the writ is not demandable in the present instance, because the right to the office may be otherwise tried. It is clear that it will not lie if there be another legal remedy, but that remedy must be specific and adequate to the object in view, “framed to effect directly the desired end.” 3 Halst., 206.

It must afford “complete satisfaction, equivalent to a specific relief.” 2 Doug., 525 . We are told, in 1 Ch. Gen’l Pr., 789, on the authority of Andoley vs. Joye, Poph., 176, that the writ of mandamus may be compared to a bill in equity for a specific performance. Evans' Pr., 404.

In Regents, &c., vs. Williams, 9 G. & J., 365 , the rights of the actual parties to the controversy were determined in an action for money had and received, but if that course had been pursued by this appellee, the judgment would not have placed ⁹⁹ him in possession of the office. His ultimate success might have depended on its voluntary surrender by the appellant. In Marbury vs. Madison, it was held, that the action of detinue was not a specific remedy, because the judgment would be for the thing itself, (the commission,) or its value, whereas the party was entitled to the office or to nothing, and the commission was necessary to the enjoyment of the office. And in Kendall vs. United States, the court said, as a reason for sustaining the mandamus, and in reply to the argument that the post-master might be sued, that private actions at law seldom afforded adequate relief in these cases.

Quo warranto, or an information of that nature, has been resorted to in some cases, as preliminary to the mandamus, but we do not think that remedy necessary in this case. It might prove very inadequate, by reason of the déla)'. We must bear in mind that the claimant seeks not only the removal of the incumbent, but the possession of the office. No form of proceeding that will give him less than he asks and has a right to claim, can be said to furnish specific, adequate relief.

Under the quo warranto information the judgment might amove the occupant but would not install the claimant. He might still find it necessary to resort to other process against some other person or officer who might deem it his duty to keep him out, and thus his whole term might expire in vain efforts to obtain that to which the constitution and laws may have declared him to be entitled. In Strong's case, 20 Pick., 497 , involving this very point, the court held, that the remedy by action at law, or quo warranto, would be very imperfect and partial, and that the evil could be reached only by mandamus. And in Dew's case, 3 Hen. & Munf., 23, Tucker, J., in answer to the very objection now urged by the appellant, after quoting 3 Bl.

Com., 110, to show that this writ may be issued in some cases where the law gives another more tedious mode of redress, as in the case of admission or restitution to an office, added: “ This is the very case before us, and although possibly the injured party may have another remedy, I think there is no other so well adapted to the' nature of the case as that of mandamus." In the same case, Roane, J., said, it was im ¹⁰⁰ portant that a speedy decision should be given, and, as conducive to that end, the most direct remedy should be pursued, which is consistent with justice and the policy of the laws. And, as to the quo warranto proceeding, he added, that “it was not in itself a specific remedy j it only paved the way for the introduction of a specific remedy, by producing a judgment of ouster against the person in actual possession.” We consider this a very reasonable and correct view of the law of mandamus, as applicable to the character and tenure of the office of Librarian, and that the writ will lie unless there be something in the only remaining point urged on this part of the case, to wit, that the writ is never granted where the office is filled by a person claiming title. We have carefully examined the authorities cited, and find that this is not, by any means, recognized as a general proposition, either in England or in this country. There are decisions on either side.

The principle has been applied, for the most part, in those cases where the writ was invoked against corporations, bishops, or others, with whom resided tíre power of appointment, or induction, or admission, and where some other person, not party to the writ, was in possession under color of tide. In these cases it would be manifesdy against the first principles of justice to direct the amotion of the incumbent, when, by another form of proceeding — quo warranto information — quare impedit, Sfc. — he might have an opportunity of being heard in defence of his rights. This is certainly the ground on which the court proceeded in the cases of The People vs. Mayor, &c., of N. Y., 3 Johns. Cases, 79, and The People vs. Forquer, Breese, 68.

This reason is not given in all the cases, but it does appear that in some of them, American as well as English, the person in office was held to be a necessary party to the mandamus, which shows that, according to these decisions, the writ may go where the person to be affected can be made a party, and die doctrine, that the writ will not be granted where the tide is disputed, must, we think, be confined to those cases in which the contest is made by another person in and claiming the office, yet is not a party to die writ. The authority of The People vs. Mayor, &c., of ¹⁰¹ N. Y., 3 Johns. Cases, was not recognized, but disregarded, in 20 Pick., 496 , where it is said, “ notwithstanding the respectability and weight of this and the other authorities cited, there are certainly very many the other way.” In Pew's case, also, (3 H. & Munf., 1,) the question is discussed by Judge Roane, and, as we think, properly disposed of. In the present case the process is asked against the only person who is interested in contesting the claimant’s right.

The incumbent’s original title is not questioned in this proceeding, hut it is contended that he has been superceded, under the constitution, by the election and qualification of Marshall, so that if Marshall is entitled the appellant remains in wrongfully. His right ceases the moment Marshall’s becomes perfect, the completion of title in one per se terminating that of the other. We have decided, ( 5 Md. Rep., 423 ,) that Harwood’s term would expire on the 23rd April 1855, though his right would continue until the qualification of Marshall. If this has occurred, does it need a quo warranto, or an information of that nature, to ascertain by what authority the present incumbent is in office and claims to exercise its functions ?

If the fact be as averred by Marshall, the constitution declares that Harwood has no right to hold the office, and therefore “ no utility can result from a trial on quo warranto information.” 3 Hen. & Munf., 37. 2nd. As to the appellee’s title to the office. We will consider the several objections to the writ, made on the part of the appellant, under this question. We are of opinion that the Governor, having been authorized to administer the oaths of office, may certify the fact.

It may be observed that the certificates heretofore issued from the executive department, of the appointment and qualification of officers, merely assert the fact, without showing the quo modo. County clerks have always certified the appointment and qualification of justices of the peace and other officers, by merely declaring the fact, without reference to the evidence of qualification in their offices. Are we to presume that the law denies to the Governor, who is charged with the execution of the laws, and presumed to know what they enjoin, less capacity to declare ¹⁰² what he has himself done in the matter of qualifying officers under the constitution? But, if the Governor cannot certify, how is the fact to be ascertained?

It is answered, on the part of the appellant, that the qualification is required, by the act of 1852, ch. 172, to be made matter of record, and that a certified copy must be produced, under the hand of the Secretary of State and the great seal. The only authority given to the Secretary, by this act of Assembly, to certify, relates to a class of officers named in the fourth section, which does not embrace the Librarian. It is not included in his duty to preserve a record of the oaths and signatures of the officers. Besides, the law has no where made such certified copies evidence any more than the mere certificate of the Governor.

If one be rejected there would be no reason for receiving the other, and parties might be driven to the necessity of producing the original book in all cases where the legality of the qualification might be called in question. In any view of the point the Governor must sign his name. The Secretary has no control over the great seal. The act of 1853, ch. 131, places it in his custody, but under the control of the Governor, who alone can authorize its use, and is required to verify, by his signature, every document to which it may be affixed.

See also the act of 1853, ch. 448. The act of 1852, ch. 172, in so far as it requires a book to be kept, is merely directory, to preserve proof of the qualification of public officers. If an officer qualifies according to the constitution and laws, and the book should not be preserved, we have no idea that such omission on the part of the Secretary would defeat his right to the office, or render his acts invalid, merely because a copy of his qualification could not be taken from the record. There is no need for the form of the oath being set out in words in the certificate, to enable the court to see that the proper oath has been taken.

The forms are prescribed by the constitution, and when the Governor’s certificate declares that the officer has qualified, or has taken and subscribed the oaths prescribed by the constitution and laws, it must be intended that the proper oaths were administered and subscribed. The instances of attachment and others, referred to in the argument, do not apply, ¹⁰³ because in these cases the proceeding is special, and the acts of Assembly must be strictly pursued. Next, as to the sufficiency of the certificate.