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.

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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.

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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