Groome v. Gwinn

Stewart, J.,

filed the following concurring opinión :

The question determined, in this case, involves the construction of the Constitution, and whilst entirely concurring in the conclusion of the Court, I have deeded it proper to state briefly, the grounds of my judgment!

Under the circumstances of the case, the dffiy of the Governor must be found clearly prescribed in somA provisión of the organic or statutory law of the Stately It is unreasonable to suppose that it was ever intended'; to be left for judicial research alone to determine what the\Governor should do in such case. . \

If there is any obscurity in the 2nd sect, of the 5th Ard., there is none in the Hth sec. of the kth Art., and any doutff or difficulty about the former affords no reason why the plain provisions of the latter should be disregarded ; on the\ contrary, furnishes stronger ground for following their ' directions.

*631 Considering tbe two provisions together, there is no discrepancy between them ; and referring to the entire Constitution and its general purposes, as to the election and installation of the various officers provided for; and its contemplated legislative action in regard thereto, by sections 56, 47, 42 and 49 of the 3rd Art., in aid of any existing legislation, recognized by the 5th Art. of the Bill of Rights ; it would seem there ought to be no difficulty about the meaning of the 2nd section of the 5th Article.

Constitutions were certainly never meant to be dependant upon judicial construction for their meaning. They were designed for practical purposes, and to be of easy comprehension to persons of plain, common sense, aod ordinary understanding.

The people make and adopt them, and are presumed capable of understanding them. Established upon mature deliberation, as fundamental provisions of government, there ought to be no obscurity about their meaning, and no conflict or inconsistency in any of their provisions.

It has been universally considered that the leading rule to govern, in the interpretation of Constitutions, as of all other instruments, is to ascertain therefrom, the intention of the parties thereto, to be derived from an examination of the entire instrument.

It must have been intended, that all the parts should be consistent with each other; and therefore the repugnancy of one provision with another is to be avoided.

If the words of one clause are uncertain, their meaning can be learned, by comparing them with other words and sentences in the instrument; the effect and consequence of a particular construction, is to be regarded; because, if a literal meaning would involve armanifest absurdity, it ought not to be adopted. If necessary to refer to authorities for such self-evident propositions, see Campbell vs. Morris, 3 H. & McH., 535 ; Jarrett vs. Hammond, 17 Md., 304 ; State vs. Wayman, 2 G. & J., 285 ; Mayor and C. C. vs. *632 State, 15 Md., 458 ; Bradford vs. Jones, 1 Md., 369 ; Bandel vs. Isaac, 13 Md., 225 ; Story’s Com. on Const., 400, 451, 453

Having in view the force and effect of the 11th sec. of 4th Art., and 56th, 47th, 42nd and 49th secs, of the Constitution, there should be no difficulty about the meaning of the 2nd sec. of the 5th Art. now in question. The 11th sec. of 4th Art. in terms applies to all officers except State’s Attorneys; and of course, includes the Attorney General. It is also mandatory, using in its last' clause, the most imperative language, to wit: “and in all such elections, the person having the greatest number of votes shall be declared to be elected; ’ ’ which makes it obligatory upon the Governor, to issue the commission to that person, for the office of Attorney General, ivho has from the returns before him, the highest number of votes.

Under it the Governor is required to issue commissions to all the persons elected, without further reference to their qualifications; whilst it is made his duty under the 2nd sec. of 5th Art. in regard to the Attorney General, to decide on his election and qualification.

The exercise of these different powers require correspondent action on the part of the Governor — the first ministerial, the second judicial.

The one commands immediate action, the other, allows time for investigation and judgment.

The two provisions must be construed so as to avoid conflict between them, according to the established rule we have referred to.

If the commission had, promptly issued to Mr. Gwinn, in pursuance of the 11 th sec. of 4iA Art., that would not have prevented the Governor from afterwards deliberately deciding upon the legality of his election, under the 2nd sec. of 5th Art., provided there had been such legislation as_ contemplated by the Constitution, 55th and 4Jth sections of 3rd Article.

*633 But if such meaning be given to tire 2nd sec. of 5th Art. as virtually to destroy or mislead, the exercise of the power, under the 11th sec. of 4th Art.; it is obvious, that would antagonize, or annihilate the force of this last provision — of course such construction cannot be right.

Besides, it is not to be presumed, in regard to a provision requiring the Governor, to furnish the persons elected, with the official certificate of their title to office, the Constitution ever designed to give to the Governor the power to suspend and render void its operation.

In the absence of the clearest terms to that effect, the Governor in undertaking to avoid its mandates, would in fact be exercising the high and unauthorized prerogative of dispensing with a positive constitutional mandate.

If all officers, whose election was contested, are to have their commissions refused or suspended, until the determination of the contest, it would necessarily result in the utter disregard of sundry other provisions, interrupt the regular installation of the officers, and lead to disorder and revolution.

By the 9th sec. of Art. 15, the term of all officers, except where special provision is otherwise made, is to commence from the time of their election, and they are required to qualify, as soon thereafter as practicable.

By the 7th sec. of Art. 2, the refusal or neglect of any officer, elected or appointed, to take the oath of office provided by the 6th sec. (modified by the 3rd sec. of 15th Art.,) shall be considered a refusal to accept the office.

Further provision by the 10th sec. of Art. 68 of the Code, is made to insure the prompt acceptance of office. The officers are not entitled to any salary, until they qualify and enter upon the discharge of duty. Spence vs. Jump, 28 Md., 1 .

If a contest suspends the right to be commissioned and installed, that would deprive the party elected of his office, and abridge the term thereof.

*634 On the other hand, if the Governor under the 11th sec. of the 4th Art., declares the result so soon as the returns of the election are made to him, and issues commissions accordingly, no contestant is deprived of the opportunity afterwards, of showing the illegality of the election if the necessary laws are passed, contemplated by the Constitution.

Provision being made by law in such case, upon a hearing the incumbent tuho holds under the returns must be ousted, and the contestant installed, or a nexo election had.

The right of all parties are preserved, and the entire proceedings growing out of the election are thus conducted in order.

■ As the law and Constitution now stand, there was in truth no legal contest before the, Governor. Mr. Wallis’ letter to him was a mere notice or caveat, which he had -no official authority to consider as instituting a contest between him and Mr. Gwinn.

Under the express terms-of the 2nd sec. of 5th Art., as they stand in the Constitution, the Governor is only authorized to decide upon the election and the qualification of the person returned ; and in case of a tie, to designate ivhich shall qualify ; that is, if the returns do not show that any person has the greatest number of votes; but there is a tie between tioo or more, he shall designate which person shall qualify, and administer the oath of office to the person elected, that is, to the pex’son returned or to the one he may designate in case of a tie; this has reference to action upon the retwrns, and not to the result of a contest and determination thereon.

If the means had been given to the Governor by appropriate legislation in pursuance of the 51st sec. of 3rd Art., to enable him to decide upon the election and qualification of the person retux-ned, and no further provision had been made, and the Governor should find accordingly to the ^allegation of Mr. Wallis, that such “fraud, violence and ixitimidaiion ” prevailed at the election in Baltimore, as to *635 exclude the entire vote of that city, (assuming in the absence of legislation to that effect, that such would be sufficient cause,) and that Mr. Wallis had the majority of the remaining votes; that could only properly result in a decision by the Governor, that Mr. Gwinn the person returned was not elected.

Under that provision, aided by the legislation referred to and no other, the Governor would have no authority to declare Mr. Wallis elected. The only legitimate result under such a state of things, would be a failure of the election of any person.

But if further provision had also been made under the 47th sec. 3rd Art. to authorize the Governor to dispose of the matter as “ a case of contested election,” he would be provided with authority to determine between the contestants ; without some law to that effect, the Governor clearly would have no right to throw out the legal vote of the City, because fraudulent votes had been received ; and no authority to decide in favor of Mr. Wallis, so as to vest in him the right to the office.

It is the exercise of one specific power to decide against the person returned, and quite another and different power, because that person is not elected, to proceed to install somebody else in the office.

The one, upon no principle of law or logic, is the necessary sequence of the other.

The authority must be provided for such result, or it cannot be rightfully exercised.

Under the 12th sec. of 4th Art. provision is made, in reference to a failure to elect any of the officers therein named, and if the person returned as elected, fails to make good his title, a new election must be ordered.

Legislation may be provided for the cases of other officials, whose election is contested, under the 56th and 47th secs. 3rd Art. — upon both of which, legislation is necessary to meet the exigencies of the case now in question. — with *636 out which, the Governor has not the means of deciding dehors the returns, whether the person has been elected legally ; and no power to instal Mr. Wallis, if Mr. Gwinn had failed.

Elections in popular systems of government, are the immediate and original,acts of the people in their primary and sovereign capacity.

All government of right originates from the people. ■Isi Art. Bill of Rights.

The authentic and prima facie evidence of the result of an election, and provisions for any contest thereof, ought to be free from all ambiguity.

All legal intendments are to be made in favor of the legality and validity of such elections. They may, by ■the Constitution, or law in pursuance thereof, be made to import by the prescribed mode of authentication, absolute and conclusive verity, as to the result; or only as affording prima facie evidence thereof, and to be subject to contest.

When an election has been held and duly certified, as may be prescribed, unless there is some constitutional or statutory provision providing otherwise; it is the solemn and binding act of the people, affording conclusive evidence ¡of their decision. Unless provision is made for a contest over it, the result cannot be impeached, and must stand as their act. This is the necessary result.

The Constitution itself, under the 15th Art. thereof, was adopted and has gone into effect by virtue of an election by the people, and the proclamation thereof by the Governor at the time, upon the returns made to him, thus providing that it should afford not prima facie, but conclusive evidence of their action, in the establishment of the present organic law of the State, under which all the powers of the government in the various departments thereof are now exercised, and the rights and liberties of the people secured.

- After the people have voted, and the appropriate officers made due returns thereof, the prompt installation of the off *637 cers eleded, is contemplated by the Constitution as Hie necessary result, a»d it devolves upon any party disputing their validity, to show, authority for his right to do so.

The onus is upon him to establish his right.

Elections were intended to be legal and bona fide proceedings, expressive of the voice and purpose of the people through the ballot-box, and as there might be fraud or illegality, the Constitution contemplated that any person affected thereby, should have the right to contest their validity by suitable legislation for that purpose.

When the result of the election is duly certified to the Governor, the 11th sec. of 4th Art. provides for proclamation of the fact, and he is required to issue the commission to those having the greatest number of votes, who are in truth by the ioords of that section declared to be elected.

Notice of contest cannot relieve the Governor from the performance of this inevitable duty, or suspend the fiat of the Constitution.

This has been settled by the decisions of this Court. See amongst others, Magruder vs. Swann, 25 Md., 209 ; Brooke vs. Widdicombe, 39 Md., 386 .

Where the Constitution provides, that an election may be contested, and that the Legislature shall pass the necessary laws for that purpose ; and no legislative provision has been made upon the subject, there ought to be no trouble, it seems to me, in determining that there is no competent authority under which to conduct and decide a contest over it.

The constitutional requirement in such case cannot execute itself, but -remains as .a mandate without practical significance, until appropriate legislation gives to it due force and effect.

The 2nd sec. of the* 5th Art. per se, confers upon the Governor no authority to cause witnesses to appear before him, or to compel their attendance by attachment or other process, or to authorize depositions to be taken under commission or otherwise, and can afford none of the indispen *638 sable means of investigating, hearing and determining the controversy, as a case of contested election.

The Governor, in undertaking to decide a contest under such circumstances, would be holding quite a novel Court without the usual adjuncts, and with very limited opportunity of doing justice between .the parties, it would seem.

No doubt it was competent for the framers of the Constitution, to have provided all the details for the trial of a contested election by the Governor, as to the office of the Attorney General, if they had thought proper to have done so, but not having so provided, the Governor has not a particle of authority, by express terms or reasonable implication, to amend and supplement the Constitution, by adding in effect, the necessary provisions for that purpose.

The exercise of power in such case, would be mere assumption and usurpation.

Constitutions deal in generalities, and were never intended to supply a Code of laws, to meet all cases of litigated questions; and no doubt, whether wisely or not, is now immaterial, the Constitution intended, merely to provide, that the Governor, as to a contest over the election of Attorney General, should decide 'upon Ms election and qualification, by the 2nd sec. of 5th Art.

Whilst the Legislature must provide the necessary means according to its discretion, to enable him to execute that power, it would not be competent for that body, to constitute any other person or tribunal to be the judge in such case.

It is much better to abide by safe landmarJcs in the exercise of poiver, than to venture upon mere experimented enterprises.

Latitudinal and doubtful construction of the powers of the Executive, under the Constitution of a free people, ought never to be sanctioned by the Courts.