ernor, that he might commission the requi-
site number of persons for the trial and de-
termination of the case.
The court then proposed, with the consent
of counsel who were present as amid curiae—
the governor having declined to appear by
counsel—to take up and dispose of the appli-
cation for a mandamus. To this, that the
question might be adjudicated, the counsel
agreed. The argument proceeded upon the
appeal from the superior court of Balti-
more city, and the principles involved were
discussed at length by I. N, Steele, Wm.
Schley and T. S. Alexander, Esqs., on be-
half of the appellants, and by Hon, Hen-
ry Stockbridge—who was chairman of the
judiciary committee in the convention—and
Hon. H. Winter Davis, of Baltimore, on
the other side. On the 29th of October the
court, through Hon. Richard J. Bowie,
chief justice, gave its decision, and unani-
mously affirmed the order of Judge Martin.
The chief justice said :
The peculiar circumstances surrounding
this case requiring it should be promptly de-
cided, we have only time to announce the con-
clusions arrived at, and refer to a few of the
leading authorities on which these, are based.
The case has been argued with an admira-
ble spirit of courtesy and moderation, and
much eloquence and learning.
The brief of the relator's counsel states:
" The object of the proceedings is to obtain an
exposition of the rule of law which ought to
guide the discretion of the governor in his
ascertainment of the result of the late election
had for the adoption or rejection of the new
constitution,"
The relator's prayer substantially is, that
the governor of Maryland show cause " why
a writ of mandamus ought not to be issued,
commanding him in ascertaining the number
of votes cast at the said late election held as
aforesaid," to count certain votes which were
tendered and rejected, and to exclude certain
votes which shall appear to have been cast at
any other place than the election precinct at
which the person voting was qualified to vote.
From this brief analysis it appears the pro-
ceeding is one of the most momentous conse-
quence, and should be treated with the
greatest deliberation. Our first duty is to
inquire whether it is a proper subject for ju-
dicial interpretation and interposition.
By our organic law, the powers of govern-
ment are distributed into legislative, execu-
tive and judicial. We are admonished by
the declaration of rights that these powers
" ought to be forever separate and distinct
from each other; and no person exercising
the functions of one of said departments
shall assume or discharge the duties of any
other."
The second article of the constitution is,
''The executive power of the State shall be
vested in a governor." |
" He shall take care that <he laws be faith-
fully executed."
The sixth section of the convention law re-
quired the constitution and form of govern-
ment adopted by the convention to besub-
mitted to the legal and qualified voters of the
State for their adoption or rejection, at such
time, in such manner, and subject to such
rules and regulations as said convention may
prescribe; and the provisions thereinbefore
contained, for the qualification of voters and
the holding of elections, provided in the pre-
vious sections of the act, were made applicable
to the election to be held under that section.
The eighth section further enacts that when
the governor shall receive the returns of the
number of ballots cast in this State for the
adoption or rejection of the constitution sub-
mitted by the convention to the people, if,
upon counting and casting up the returns as
made to him, as hereinbefore prescribed, it
shall appear that amajority of the legal votes
cast at said election are in favor of the adop-
tion of the said constitution, lie shall issue
his proclamation to the people of the State,
declaring the fact, and he shall lake such
steps as shall be required by the said consti-
tution to carry the same into full operation
and to supersede the old constitution of this
State.
Is the power and authority conferred on
the governor by this act, a political or judi-
cial power?
A late eminent jurist, whose recent death
has been lamented as a national calamity, in
the case of Luther vs. BORDER=0s, et. al., 7 How-
ard, 39, expressed himself thus strongly:
"Certainly the question which the plaintiff
proposed to raise by the testimony he offered,
has not heretofore been recognized as a ju-
dicial one in any of the State courts. In
forming the constitution of the different States,
after the declaration of independence and in
the various changes and alterations which
have since been made, the political department
has always determined whether the proposed
constitution or amendment was ratified or
not by the people of the State, and the judi-
cial power has followed its decision."
Courts of law will not interfere with the
exercise of high discretionary powers vested
in the chief magistrate of the State, for obvi-
ous political reasons:
Among others) "Because) as Governor of
the State, deriving his powers from the con-
stitution thereof, he has been made a co-ordi-
nate, separate, distinct and independent de-
partment of the government."
In the case of Low vs. Towns, governor of
Georgia, the supreme court of that State said:
"The ultimate effect of this remedy, (man-
damus, ) in case of refusal by the governor to
obey the laws of the land, would be to de-
prive the people of the State of the head of
one of the departments of the government."
(8 Geo., 372.) |
