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8 compensation of all. officers whose pay is not elsewhere lim- ited. Suppose the the fees, of the sheriffs had been increased at January session, 1865, would Mr. Hal-wood bo eligible as sheriff of Anne Arundel county during his term of office ? Undoubtedly not, if the words of the Constitution are to be un- derstood, in their obvious sense; and yet Article 12, section 1, limits the compensation of the sherrifs quite as effectually as section. 44 of Article 3, limits the compensation of the clerks. Any other qualified person, not a number of the General Assembly in 1865. would be eligible as such sheriff, notwith- standing the fees may have been trebled, and he could. retain the compensation up to three thousand dollars, but no one who was a member of that body at the time such a law might have passed, could be eligible until alter the end of the whole period, of time for which he was elected., In view of these considerations, the undersigned have no difficulty in deciding that Mr. Harwood was not eligible ay clerk of the Circuit Court of Anne Arundel county in.No- vember, 1865, and. therfore that he was not elected. The next question is, was Mr. Gambrill legally elected. as clerk at that election ? In our opinion, Mr. Gambrill wad legally elected, at the election, and is entitled to the office. In Gushing, on Legislative Assemblies, page 66, the law is thus stated; "If an election is made of a person who is in- eligible, that is, incapable of being elected, the election of such person, is absolutely void, even though he is voted for at the same time with others who are eligible and who are ac- cordingly elected; and this is equally true whether the dis- ability is known to the electors or not; whether a majority of all the votes or a plurality only is necessary to the election; and whether the votes are given orally or by ballot." The author proceeds to quote instances to support his assertion, in this country and in England, and states that if the elec- tors have notice of the disqualification every vote given for him afterwards will be thrown away, and considered as not having been given at all, and the candidate having the next highest number of votes will be elected. "This doctrine, however hard. it may seem, is founded on the familiar princi- ple that every man is bound, to know the law wits reference to any act which he undertakes to do." And in section 179, he says: "In reference to election by ballot, where secrecy is the distinguishing feature, and in which consequently nei- ther the returning officers nor the electors themselves are supposed to know for whom the votes are given until the result is declared, it seems not unreasonable to consider the votes for ineligible candidates to be thrown away in. all cases, and the opposing candidate elected, where the electors know or |
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Proceedings and Acts of the General Assembly, 1866
| Volume 107, Page 1794 View pdf image (33K) |
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