Groome v. Gwinn , 43 Md. 572 ( 1875 )

Bartol, C. J.,

delivered the opinion of the. Court.

This is an appeal from a pro forma order of the Circuit Court, directing the writ of mandamus to be issued, requiring the Governor to commission the appellee as Attorney General and to administer to him the oath of office.

By agreement of counsel all errors of pleading have been waived, the only object and purpose of the appeal being to obtain a judicial determination of the powers and duty of the Governor, under the Constitution and laws of the State.

The nature of the questions involved, and the circumstances under which the appeal was heard, requiring an immediate decision, the judgment of the Court was promptly rendered, in which only our conclusions were expressed, reserving for the future a more full statement of the grounds and reasons upon which our decision rests.

The petition alleges, and the answer of the appellant admits, that the Governor had decided, that according to the returns of the election duly made and certified to him by the Clerks of the Circuit Courts of the several counties and the Clerk of the Superior Court of Baltimore city, the petitioner, Mr. Gwinn, had received a majority of all the votes of the qualified voters of the State, cast at the election for Attorney General, and that according to said returns the petitioner was elected Attorney General of the State; and that at the time of the election, as well as at the time of filing his petition, he was duly qualified and eligible to the office under the Constitution. The answer further states that the Governor had received notice that Mr. Wallis, who was also a candidate for the same office, contested the election of the petitioner upon the ground that, “the said election in the City of Baltimore, was rendered wholly void by fraud, intimidation and violence, and that the returns for said City, could not lawfully be counted, and that he, the said Wallis, received and was duly elected by a majority of the legal votes of the people of the State, exclusive of the City of Baltimore, for the office of Attorney General.”

The answer further states that there appeared in the opinion of the Governor, a sufficient reason to induce a hearing and examination of the questions involved in the contest, by evidence outside of the returns, if he, as Governor, possessed such power under the Constitution, and that he had declined to issue a commission to Mr. Gwinn, as Attorney General.

The first question for our consideration, is whether it was the duty of the Governor, to issue the commission to Mr. Gwynn, notwithstanding the notice of contest from Mr. Wallis.

The provisions of the Constitution bearing upon this question are as follows:

Article 5, sec. 1, provides for the election of Attorney General, by the qualified voters of the State, fixes his term of office, as four years, &c. Sec. 4 prescribes the qualifications required to render a person eligible, viz: that he shall be a citizen of the State, a qualified voter therein and shall have resided and practiced law in this State for at least ten years. Sec. 2 is in the following words:

<c All elections for Attorney General shall be certified ' to, and returns made thereof, by the Clerks of the Circuit Courts of the several counties, and the Clerk of the Superior Court of Baltimore City, to the Governor of the State, whose duty it shall be to decide on the election and qualification of the person returned; and in case of a tie between two or more persons, to designate which of said persons shall qualify as Attorney General, and to administer the oath of office to the person elected.”

Art. 4, sec. 11, provides as follows : “ The election for Judges hereinbefore provided, and all elections for Clerks, Registers of Wills, and other officers, provided in this Constitution, except State’s Attorneys, shall be certified, and the returns made by the Clerks of the Circuit Courts of the counties, and the Clerk of the Superior Court of Baltimore City, respectively, 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.”

Art. 3, sec. 4*7, provides that,- the “ General Assembly shall make provision for all cases of contested elections of any of the officers, not herein provided forand the 56th sec. of Art. 3, provides tliat “ the General Assembly shall have power to pass all such laws as may be necessary and proper for carrying into execution the powers vested by this Constitution, in any department, or office of the Government, and the duties imposed upon them thereby.”

The 11 th sec. of the áth Article above cited, is the only provision to be found in the Constitution directing commissions to be issued by the Governor, to the several officers therein mentioned and referred to ; in all cases falling ■within its provisions, the Governor is required to issue commissions to the persons regularly and duly returned as elected. This is the plain moaning of its language, and such has been decided to be its true construction.

In Brooke vs. Widdicombe, 39 Md., 402, it was held that the Governor would not bo justified in refusing to issue the commission to the person regularly and duly returned as elected; by reason of a notice that the election was contested; that was a case of a clerk, one of the officers expressly named in the 11th section ; but the Attorney General though not expressly named, is clearly embraced within its terms, for after enumerating Judges, Clerks, and Registers of Wills, the words are, “and oilier officers provided in this Constitution, except State’s Attorneys.”' If this section stood alone there would be no room for dispute or question. It is contended however, that this case is governed exclusively by the second section of the fifth Article, which relates particularly to the Attorney General, and which it is argued, has the effect to withdraw the case from the operation of the eleventh section of the fourth Article.

It is no doubt a familiar rule of construction, that where, “a general intention is expressed, and the instrument also expresses ,a particular intention which is incompatible with the general intention, the particular intention is to be considered as in the nature of an exception. Smith’s Commentaries, sec. 652.

But this rule has no application here, because so far as concerns the duty of the Governor, to issue a commission to the person appearing by the returns to have been elected,' there is nothing in the second section of the fifth Article repugnant to, or incompatible with the provisions contained in the eleventh section of the fourth Article.

As said by Judge Chase in Campbell vs. Morris, 3 H. & McH., 554, i£ the way to expound a clause in the Constitution is by comparing it with other parts, and considering them together.”

In the language of Judge Cooley, the rule applicable is “ that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the Courts must harmonize them if practicable, and lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory.” Cooley’s Const. Lim., 58.

Construing these sections together, it seems to us perfectly clear to be the meaning and intent of the Constitution, that commissions should issue, so soon as the result of the election could be ascertained from the official returns, and that the newly elected officers should at once take the oath of office, and enter upon the performance of their duties ; nothing is contained in the Constitution indicating any intention that commissions should be withheld where elections are contested.

If any doubt would be entertained on this point, it would be removed by tbe provisions of the Act of 1865, ch. 143, (Supplement to the Code, Art. 35, sec. 30,) which after prescribing the manner in which the returns of the election shall be made, expressly directs that “from the returns so made, the Governor shall issue commissions to the different persons elected, including Lieutenant Governor.” *******

That Act was passed under the Constitution of 1864, which contained the same provisions as are found in the present Constitution, and it is still in force, except so far as it refers to the office of Lieutenant Governor, which has been abolished. The provisions of the Constitution and the Act of 1865 are mandatory, requiring the Governor to issue the commission on the basis of the returns. So soon, therefore, as the Governor decided that according to the returns, Mr. Gwinn was elected, and that he had the constitutional qualifications for the office, it became his duty to issue the commission, and to administer to him the oath of office. His prima facie title to the office was established, and his right to be installed; this right was not defeated by a mere allegation that he had not been legally elected, or by a notice of contest; as was decided in the case of Brooke vs. Widdicombe — he was entitled to hold the office pending the contest, and until his title as shown by the returns, should be defeated by legal proof.

Issuing the commission, and administering the oath of office, are merely ministerial duties imposed upon the Governor, and the writ of mandamus lies to direct their performance. This was decided in Magruder vs. Swann, 25 Md., 17, and in Brooke vs. Widdicombe, 39 Md., 401.

2nd. Has the Governor jurisdiction and power under the Constitution, and existing laws to hear and decide the contest ? This involves two questions, first, has he the jurisdiction ? and secondly, has he been clothed by law with the means of exercising it ?

On the first of these questions, the Court is not unanimous, a minority oí the Judges entertain the opinion, that the Constitution does not empower the Governor to decide in a case of a contested election for the office of Attorney General, and that the case is one falling under the 47th section of the 3rd Article, which declares that “ the General Assembly shall make provision for all cases of contested elections of officers not herein provided for.”

But, in the opinion of a majority' of the Court, the jurisdiction in such case is conferred upon the Governor, by the second section of the fifth Article, which provides that “the Governor shall decide upon the election and qualification of the person returned.” This language we think confers the jurisdiction upon the Governor to decide both as to the election and qualification of the person returned as elected, as well in the. case of a contest, as where there is no contest, although the case of a contested election is not mentioned in express.terms, we see no good reason why it is not within the meaning of the Constitution, the words are sufficient to embrace it. It is identical with the language of the 8th sec. of Art. 5, which gives authority to the Courts having criminal jurisdiction, to whom the returns are made, in the case of State’s Attorneys, to decide upon the election and qualification of the persons returned.

We construe both these sections, as conferring the jurisdiction in cases of contested election ; and are of opinion that the Legislature would have no power under the 47th sec. of Art. 3, to confer the jurisdiction upon any other tribunal, than those designated by the Constitution. This view is confirmed by the contemporaneous and uniform construction which has been given to these provisions. They are the same as those contained in the Constitution of 1864, and while the Legislature acting under the 47th sec. of the 3rd Art.., has provided by law for the cases of contested election of Comptroller and Commissioner of the Land Office, conferring upon the House of Delegates the power to decide them; there has been no legislation whatever appointing any tribunal to decide a contested election of Attorney General or State’s Attorneys, showing that the Constitution has been understood as having vested the jurisdiction in these cases.

Although the Governor is vested by the Constitution, with jurisdiction of a contested election for Attorney General, the power thus conferred is not self-executing, that is to say, it cannot be executed by the Governor, until he is clothed by law with the authority, means and instrumentalities, which will enable him to execute the power. The Governor, in his answer, asks directions from the Court, as to the mode of proceeding, and “ whether he may hear evidence orally before himself, or by examination before special commissioners, by him to be thereto appointed, or before Justices of the Peace, after notice to the parties ; what character of extraneous evidence he can properly act upon, and the extent of his powers as Governor, in compelling the production of such testimony.”

From this, it appears that the Governor himself, being the judge to decide the contest, was completely at a loss to know the extent of his power in the premises, and the means he might rightfully employ to execute it. This is not strange, for it is obvious that the jurisdiction conferred upon him, is one which requires the exercise of powers not appertaining to the executive office, and which can only be conferred upon him by law, this Court cannot confer them, nor prescribe the rules for him to observe in hearing and deciding the contest. For this purpose, the action of the Legislative department must be called into exercise, for the Legislature alone has the power of passing laws. The Governor cannot hear and decide the contest in this case, without having authority to have witnesses summoned, to compel their attendance, to administer an oath to them, and to punish them for refusing to attend; to cause the ballots cast at the election to be produced, as well as to have the poll-books brought before him for examination. Without authority conferred upon him by some provision of the Constitution, or Act of Assembly he can do none of these things; neither has he any authority to have depositions taken before a Justice of the Peace or commissioner appointed by him for that purpose; for he has no legal power to administer an oath himself in such case, or to empower another person to do it. It has been argued that these powers are conferred upon the Governor by implication, upon the ground that “where a general power is conferred, every particular power necessary for its exercise will be implied.” We are not willing to adopt this rule, in the broad and unlimited terms in which it has been stated; nor is it in any sense applicable to the present case. The effect of such a construction would be to leave the rights of the appellee, and of the contestant, to be determined by the arbitrary discretion of the Governor. No Court of Justice is warranted in assuming that the Constitution intended that the rights of parties can be taken away or decided by a form of trial, for which the law of the land has made no provision.

But it is clear from the terms of the Constitution that no such powers were intended tó be vested in the Governor by implication. By section 56, Article 3, it is provided that “ the General Assembly shall have power to pass all such laws as may be necessary and proper for carrying into execution the powers vested by this Constitution in any Department or office of the Government, and the duties imposed on them thereby.”

It is clear from this provisión, that the framers of the Constitution intended, that the means to enable the-Governor to execute the general power conferred on him by Art. 5', sec. 2, should be furnished and prescribed by law ; without such legislation the general power can have no operative effect. Many examples might be given to show the necessity for such legislation, a single one will suffice. By Art. 2, sec. 15, the power as conferred upon the Governor to “remove for incompetency, or misconduct, all civil officers who received appointment from the Executive for a term of years.”

In order to render this power effective, laws have been enacted by the Legislature, (Code, Art. 42, secs. 13, 14, 15,) prescribing the mode of proceeding in such case, and conferring upon the Governor the power, “to summon witnesses to testify for or against the complaint, and to, enforce the, attendance of such witnesses in the same manner as the Courts may,” &c.

Without this legislation these powers did not belong to the Governor and could not be exercised by him. It has been argued that the general power of removal for cause, conferred on the Governor by the Constitution, might be exercised by him without the aid of these statutes ; but the power thus exercised would be arbitrary, and contrary to the spirit and intent of the Constitution, no officer ought to be convicted of incompetency or misconduct, and deprived of his office without a lair and impartial trial. The power of the Governor now under consideration is in its nature judicial, “ he is to decide on the election and qualification of the person returned/’ We have said that in the opinion of a majority of the Court, these words confer upon him tBe jurisdiction fo decide a contested election ; it is obvious ibr the reasons before stated, that the power cannot bn exorcised by him in an arbitrary manner, but the parties in1 crested are entitled to a hearing, and examination of the evidence upon which tbe contest depends. And in order .that the Governor may exercise tbe power, it is necessary that the law shall clothe him with the authority, and give him tbe means and instrumentalities essential for “carrying into execution tbe power vested in him by tbe Constitution.”

This general power lodged in tbe Governor, though quasi judicial in its natui’e, does not constitute him a Court, nor does it vest him with the powers and capacities of a /burt, which being clothed with judicial powers, possesses by its organization and constitution, and without the aid of legislation for that purpose, the powers, meim.s, and appliances required to enable it to hear and decide all causes coming within its jurisdiction. These do not belong to the Governor unless they are conferred on Jinn by law. The appropriate legislation for this purpose., under Art. 3," sec. 56, has not yet been passed, and therefore we have decided that the Governor does not possess the power to examine and decide the questions raised by the contest made by Mr. Wallis.

(Decided 21st December, 1875. Opinion filed 1st March, 1876.)

It was contended by the counsel of the appellant that even if the Constitution do not empower the Governor to summon or swear witnesses, or enforce their attendance, he may do the best he can, and receive the unsworn statements of such persons as may voluntarily attend before him. The answer to this is, that such a proceeding would be without warrant of law.

The person who has been duly and regularly returned as elected, and is ^qualified under the Constitution, has a prima facie title, to the office, which, cannot be defeated except upon legal evidence.

The filing of this opinion has been delayed until an opportunity could be had of conferring with Judges Brent, Bowie and Alvey who’were not present at the argument. They have examined the record and briefs, and authorize us to say that they concur in this opinion.

Order, affirmed.