Chief Justice Marshall, in the case of Mar-
bury & Madison, (1 Cranch,) says " that the
President is invested with certain important
political powers, in the exercise of which he
is to use his own discretion, and is accounta-
ble only to his country, in his political char-
acter, and to his own conscience."
The chief magistrate or governor of the
State bears the same relation to the State that
the President does to the United States, and
in the discharge of his political duties is enti-
tled to the same immunities, privileges and
exemptions— vide Hawkins vs. the Governor,
I Ark. Rep. 586.
Independently of all political considera-
tions, if the question was a purely judicial
one, this court could not consistently with
decisions in other States and in our own,
grant the prayer of the relator.
The general principle laid down in all these,
almost without exception, is, that where the
act to be done requires the exercise of judg-
ment and discretion in the officer against
whom the mandamus is prayed, it will be
refused. Vide cases collected 12 Md., Purnell
vs. Green, 336; 17 Howard, 230. The result
of these decisions is, that the duty and power
to decide the questions which we are asked
to determine are devolved upon the officer, or
governor, without appeal, over whom, in that
respect, the judiciary have no control or revi-
sory power.
We have thus succinctly announced the
general principles which lead us to the adop-
tion of the conclusion that the order of the
superior court in this case should be affirmed,
The court has been invoked to enter into
the constitutional powers of the convention
and express opinions upon the validity of
their acts even if they should hold that the
right to issue a mandamus did not exist, and
they have been referred to the eminent exam-
ples of the supreme court, through their chief
justices in some cases, where they declared
the law although they could not enforce it.
Without dwelling on the immense moral,
political and legal influence of that tribunal,
to which we cannot pretend, we respectfully
suggest there is no parallel between the cases.
Those cases in which the supreme court
adopted that course, with one notable excep-
tion, were not cases in which society was
shaken to its foundations by civil discord, and
parties arrayed against each other with in-
tense bitterness. If we cannot subdue the
strife, we will not add fuel to the flame. All
that we can do is to show such reverence for
constitutional government, by confining our-
selves to the strict limits of our authority, as
may induce others, who lore " liberty regu-
lated by law," to cherish all its muniments
and observe all their obligations.
Test; GEORGE EARLE,
Clerk Court of Appeals of Maryland. |
Justice Bartol delivered the following sepa-
rate opinion:
1 assent to that part of the opinion of a ma-
jority of the court which denies the manda-
mus asked for, on the ground that the duties
devolved upon the governor, by the act of
1864, chapters, in ascertaining and announc-
ing the legal votes upon the adoption or rejec-
tion of the proposed new constitution are not
purely ministerial in their character, but that
they require the exercise of judgment and
discretion on his part, necessarily devolving
upon him the duty of passing upon and decid-
ing the various questions argued before us,
and upon which we have been called upon to
pass. In such case the law is well estab-
lished that a writ of mandamus will not be
granted,
Green vs. Purnell, 12th Maryland, 329, and
the cases there referred to and many other
cases might be cited.
1 do not agree, however, with my brothers
in thinking the power devolved upon the gov-
ernor, now under consideration, is in any
sense a political-executive power belonging
to him virtute officii, and not a proper subject
for judicial investigation. That subject, how-
ever, having been submitted by law to the
decision of the governor, I forbear the expres-
sion of any opinion upon it.
Test: GEORGE EARLE,
Clerk Court of Appeals of Maryland.
While these proceedings were in progress
an application was made to the governor for
permission to canvass the returns made to
him of tine soldiers' votes, and to show cause
why certain of these votes should be rejected
in the count. This privilege was accorded by
the governor; the votes and returns were
canvassed in detail, and the questions raised
upon such canvass were argued at length by
William Schley, Esq., against the admissi-
bility of the votes, and by Hons. Alexander
Randall and Archibald Stirling, Jr., on be-
half of their admissibillty. The points thus
presented to the governor were disposed of
by him in the subjoined
OPINION OF THE GOVERNOR.
STATE OF MARYLAND, EXECUTIVE DEP'T., 1
ANNAPOLIS, October 28, 1864.
In the matter of objections made to the
sufficiency and correctness of returns of sol-
diers' vote:
A request was made of me recently by a
committee of gentlemen representing, as I un-
derstood, those opposed to the adoption of
the new constitution, that before issuing any
proclamation, as required by its terms, 1
would allow counsel to inspect the returns of
the soldiers' vote, provided for by that instru-
ment, and submit to me such objections
thereto as they thought could be made. Al-
though the proposition was a novel one, and
1 believe no other instance exists in which |
