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that that was the case, but I am particu-
larly anxious that the record of this Con-
vention show that these writs will not lie
in discretionary areas, whether it is with
regard to the legislature or with regard to
the executive.
THE CHAIRMAN: Delegate Grant, do
you wish to speak in opposition?
DELEGATE GRANT: I will speak in
opposition.
THE CHAIRMAN: Just a moment.
Does any delegate desire to speak in
favor of the amendment?
Delegate Mitchell.
DELEGATE MITCHELL: Mr. Presi-
dent and fellow delegates: I think that I
would like to repeat the language because
some of the delegates have recently just
come in. Beginning with line 45 —
THE CHAIRMAN: I think they all have
the amendment before them, Delegate
Mitchell. It is Amendment No. 26.
DELEGATE MITCHELL: The amend-
ment would provide that the governor shall
appoint one of the nominees within sixty
days after receiving the list, and it ends
there.
It would then set a time limit. I would
say again that the check on the executive
is the people, and I think we are safe with
that check on the executive obligation.
THE CHAIRMAN: The Chair recog-
nizes Delegate Grant to speak in opposition
to the amendment.
DELEGATE GRANT: I hope that the
two cases I referred to a few days ago
have not misled Delegate Mitchell. Here
essentially what I referred to was the
Marbnry v. Madison rule, which I am sure
she is familiar with, that does not allow
one branch of the federal government; the
executive to be mandamused.
Of the two cases in Maryland that came
up, one involved obtaining a written man-
damus against the constitution. In that
case the constitution had established a sal-
ary of $2,500 a year for the comptroller.
The legislature did not make the appro-
priation, so the article was adopted be-
cause nothing could be taken from the pub-
lic treasury to pay the comptroller's salary.
The court held that since that was a minis-
terial act directed by the constitution, any
inferior officer could do it.
The other case I referred to is known as
Herrick v. Swann and it started in Gov-
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ernor Swann's term, finished under Gov-
ernor Bowie's term, whose picture is on the
back of the wall.
In that case there was an election in
which Mr. Herrick was elected as judge.
This was in the transition from the 1864
to 1867 Constitution.
What happened there was that Governor
Swann, because of political considerations,
refused to issue his commissions to the
judge. They attempted to rely on the Mar-
bury v. Madison rule, and they held that
it did not apply; this was a ministerial act.
It would be very simple for the governor
to issue the commission to the judge, and
they mandamused him to do so. In fact, if
I recall correctly, I believe they man-
damused the secretary of state to issue it
in the governor's name.
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Would Dele-
gate Grant yield to a question?
THE CHAIRMAN: Delegate Grant, do
you yield to a question?
DELEGATE GRANT: Yes.
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Delegate
Grant, are you familiar with the provision
in Article VIII of the present Constitution
that no person exercising the functions of
one of the said departments shall assume
or discharge the duties of any other?
THE CHAIRMAN: Delegate Grant.
DELEGATE GRANT: Yes, in a separa-
tion of powers. I am familiar with that,
but I want to bring out that it was in the
case of two ministerial duties, one on the
legislature, one on the executive, that writs
of mandamus were issued, not in the dis-
cretionary area. This case was again
brought up in the reapportionment article
in Maryland, and as Judge Henderson ex-
plained, they felt there was sufficient minis-
terial duty in reapportionment, and could
not get into the judgment area to a suffi-
cient extent.
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Would you
consider that language a mandate?
THE CHAIRMAN: Which language?
DELEGATE MITCHELL: No person
exercising the functions of one of said de-
partments shall assume or discharge the
duties of any other?
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