Covington v. Buffett , 90 Md. 569 ( 1900 )

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 percuriam 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 ofmandamus 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 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; because 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, 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 duly elected Senator in the year 1897 for a term of four years, as provided by the Constitution, there can be no election for Senator for Talbot county until the expiration of his term, unless a vacancy exists in that office. By sec. 13 of Art. 3 of the Constitution, the mode and method of ordering an election is provided in case of death, disqualification, removal from the county of any person who has been chosen Senator. The question then as stated comes to this, does a vacancy exist in the office of Senator for Talbot county in the Senate of Maryland, and has the Court power to determine the question?

It is too clear, we think, for serious controversy that sec. 19, Art. 3, of the Constitution, names the only tribunal which has the power to decide the question and that is the Senate of Maryland itself. It provides that "each house shall be judge of the qualifications and elections of its members." And we are all of the opinion that until that tribunal, which is entrusted with the exclusive authority, decides whether a vacancy exists, the Courts are without jurisdiction to interfere.

In the case of Wells v. Munroe, 86 Md. 449, cited by the appellant, the decision related to the office of Clerk of the Circuit Court, and in that case, owing to its own peculiar circumstances, the Court had full jurisdiction to decide the question of vacancy vel non. It was there said: "If there is no vacancy in the office of Clerk of the Circuit Court for Anne Arundel county and no such officer was legally to be elected the Court will not direct the name of the nominee for that position to be placed on the ballot." Worman v. Hagan, 78 Md. 163;Sterling v. Jones, 87 Md. 141.

In the case at bar the Courts are without jurisdiction to entertain the proceedings for the reason that each house of the General Assembly has the sole power to judge of the qualifications of its members to the exclusion of every other tribunal.

In Peabody v. The School Committee, 115 Mass. 383, the Supreme Court of Massachusetts, in passing upon a similar provision of its Constitution, says: "It cannot be doubted that either branch of the Legislature is thus made the final and exclusive judge of all questions whether of law or of fact, respecting such elections, returns or qualifications, so far as they are involved in the determination of the right of any person to be a member thereof, and that while the Constitution, so far as it contains any provisions which are applicable, is to be the guide, the decision of either house upon the question whether any person is or is not entitled to a seat therein cannot be disputed or revised by any Court or authority whatever." The following cases are in harmony with the conclusion reached by us in this case and we cite them as bearing on the question: People v.Hall, 80 N.Y. 117; People v. Board of Canvassers, 129 N.Y. 360;In re Contested Election of McNail, 111 Pa. St. 235;Mauran v. Smith, 8 R.I. 192; Weedon v. Town Council,9 R.I. 128; Demorest v. Fairchild, 67 N.Y. 334; Ensworth v.Albin, 44 Mo. 346.

We find no warrant in the Constitution for the position taken by the appellant, and if sustained would lead to an inevitable conflict between the legislative and judicial branches of the government. As was stated by this Court in Worman v.Hagan, 78 Md. 165, having no jurisdiction to determine the vacancy vel non, we disclaim all intention to investigate the question.

The remaining questions raised on this appeal need not be considered by us.

We hold that this Court has no jurisdiction to determine whether a vacancy exists in the office of Senator for Talbot county, and unless a vacancy does exist no election can be had for the purpose of electing a Senator. The Courts are without jurisdiction to compel the appellees to place the name of the appellant on the official ballot, until the tribunal having the exclusive authority under the Constitution to decide whether a vacancy exists passes upon that question.

Order affirmed, with costs.

(Decided January 11th, 1900).