The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-12-07
Ia W INTELLME.VGF


CRIMINAL CoURT.-lIon. Henry stump judge
Milton Whitney, Esq, States Attorney, prosecut
ing.
On motion of Mr.. McAlIister, the Court fixed III,
bail in the case of Jacob Tombach, charged will
burglary, at 1000 Mr.. Alex Carr entering il
surety as his bondsman.
THE DISPUTED ArrORNEYSuIP
The Court asked what arrangement had beer
made by the counsel on both sides in regard to the
procedure of this case
Mr.. Steele stated the order which the counsel
for Mr.. Thomas intended to pursue but as he under
stood Mr.. lellott to be preparing a motion for the
dismissal of the petition altogether that woud
probably overturn their plan of action
Mr.. leott thought it would be quite regular to
make motion to dismiss the petition, accompanied
with his reasons for so doing.
Mr.. Steele was of the opinion that this was very
irregular way OF proceeding; but as they had no
cholce, the counsel were willing to submit so as
they could obtain hearing before his Honor.
Mr.. elliott then submitted his motion to the
Court, which, in substance. was that the Judge of
the Criminal Court of Baltimore city had no iuris
dlction over the petition of John NJ. Thomas as
presented; that there was averment in said pc
tltlon that Milton Whitney had not received the
greatest number illegal votes actually cast for the
Office OF Attorney, and that Mr.. Thomas himself
DID not claim to have received the greatest number
OF votes, and that, therefore, there was n case of
contrOyerted or contested election.
Alter filing the motion, Mr. YelIott proceeded to
OF demurrer. In the first place. he said that the
jurisdiction of the Court, in reference to the case of
contested election ofthe States Attorney was not
general ana unrestricted, but was especially limit
ed The Courts jurisdiction was given, in this re-
spect, In section l3, article of the Constitution,
which says that this Court shall have the same iu-
rIsdiction as the old Baltimore City Court had.
The oldCltv Court, of course had no jurisdiction in
regard to the contested election for States Attor-
ney because no such Office was then in existence.
No act OF Assembly had since been passed investing
TINS Court with action in the premises. The dues-
ton was, what jurisdiction or authority this Court
mad IN reference to the election of States Attorney?
And whence was this authority derived? The learn
ed counsel on the other side would probably saw,
from section ,, article Of the Constitution which
says:
Al elections for States Attorney shall he certified IN
and returns made thereof by the clerks of the
ties an city, to the judges thereof having criminal urs
dcuon respectively, whose duty it shall be decide
upon the elections and qualifications Of the persons re
turned and in case of tie between more persons
to designate which of said persons shall qualify Staes
Attorney, and to administer the oahs office per
sons elected
lie contended that this section did not give the
Court general jurisdiction in this matter. The
preceding section says, "that a States Attorney
shall be elected by the voters" and not that the
Judge of the Criminal Court should have an I'M
limited discretion to decide. If it were so, that
would be SAYING that though the voters of the city
might vote in favor of certain candidate, the
Judge might, in his discretion, see fit and proper to
give Tue OIlCe 10 the Otner candidate, although he
was far from saying that such motive as that
would govern his Honor; but in these times of
strong partisan feelings and prcudices, they were
unable to say what might happen at some future
period. lie contended that, by the express Ian
guage ot the Constitution, the power given to the
Court was restricted, limited. and we'll defined -
In the second section, the Judge might deci e on
the qualifications of the parties Observation-Disclosures
quahhed by age and residence. But as to elections,
what was the rule of the Constitution? This was
e audi ! q
rule which runs through the whole Constitution,
"that the person who has the greatest number
OF votes shall be elected" ,of course that
means legal voters) 1t is stated in several
sections of the Constitution, in case of a
tie, new election should be held; but in ref
erence to the election of States Attorney, there
was special provision, and in case of a tie, the
Judge of the Criminal Court shall decide. He
thought the Constitution seemed To have carefully
guarded against the Inconvenience of a new cleo
tl"n III reference to States Attornev-as such
new elections always involved more or less of eN-
penSe and embar aSsment. Under the 10Th section
OF the 4th article, if proper case was made f,.
his llonor's decision, he would have to decide one
or two queStiOnS-tirst who had received the great
est number of legal votes? II a certain number of
legal votes had been given to both parties and one
nt them should have received number of illegal
votes, which, deducted from his regular legal vote
would bring both candidates to tie. or even one
below the other, then the power of bis Homer step
ped in to order new election, give the office
to the party who had the greatest number of legal
votes. The lSt section of the 5th article of the Con
situtioG provides that there shall be an election
every fourth year and that the office of Attorney
shall be held for four years, and until such time as
his successor is elected and qualiGed and in case OF
death, removal, or conviction for crime, the 9Th
section steps in, and gave full power to his Honor
to act.
Mr.. SteclC.-It is not intmated in our petition
that the Court had power to order a new election.
Mr.. GellOtt.-What action is desired to be taken
CL-c up1r TO doc a.,
abstract question, and to pass your individual
opinlon The question Is, what practical action is
1t desired that your Honor should take? In the
first place, you have right to order new election
and that is all the practical action that the Judg
OF the Criminal Court take; and | say there Il
no case Of contested election before the Court
There il a wide distinction between c0ntroverting
an election and contesting an election; and the
Constitution of Maryland did not provide for a con
| trovertcd election, although in England they had
several statutes for election of this sort which
were guarded with wholesome provisions The
man who comes before the British Parliament ir
| this attitude, was required to give security il
81 900. Mr.. Gelott went into dissertation or
the expense attendant upon cases of contrOverteC
election and the number of parties that might object
Alter one petition was disposed of, another and an
other might be presented, consuming the time o
the Court probably for the period for which the
States Attorney was elected. He came next tC
the claim OF the petitioner. He did not claim tt
be elected as States Attorne yhe did not say that
receive majority Of the legal votes east. Unles
he makes that avcrment it is not even a cOntro
Verted election, and to constitute a contested
election, the claimant must come forward
and aver that he has received majority of the le
gal votes actually cast. Counsel opposite might
say that the gene raj charges in the petition of
timidation and rowdyism sufficient to nullif,
the election; but where is your 1OnOr's authorit,
to nuty this election because there happened to
be row in this ward or a fracas at that
That such things had taken place all regret; bu
under our present system there never would be Al
election in Baltimore entirely free from fraud an,
! violence. | regret that we live under such
system, but have lived under it long
/ TWO or three thousand men, under the excitement
! OF an eection-time, recording their votes at tn
rate of four or five minute, showed the necessit
| ot an increased number OF voting precincts. Thes
! scenes have occurred to extent create
| or less for the past ten or fifteen wears; ant
! II this was to be taken a ground for annul
| ling the election, they might annul every eleC
| tion that had occurred in the city of BatimOr
| for twenty years. Mr.. YellOtt viewed the vote
that had been cast at eection-times during severa
| years past, and contended that those who did no
| vote on the I'd November last, might have bee
| prevented BY various motives of their own; an
| argued that that reason why his client
election should be set aside. He concluded by say
/ ing there was no case presented by this pettio
! over which his Honor had any authority or juris
! dlctiOn and he therefore moved that the petition
/ be dismissed.
!
dismiss, and the reasons assigned, seemed to hin
that they were but embodiment, in sOmewha
different form of the suggestions made bv his Homo
yesterday, as to whether he would decide in refer
ence to the invalidity OF the matters contained il
the petition or not. No question had been sug
| gested to the Court, although some new views ha(
| been presented. The first objection raised wa
that the Court had no jurisdctihu to decide in thi
| case. Where were they to resort for that power
lie replied, to the highest law of the State-to the oI
ganic law-to the law to which this Court owed il
being-tO the Constitution Of the State; and in
was found language that could not be mistaken O
| misunderstood, the power Of this Court clearly dt
fined, and specially set forth, to adudicate and dc
eide upon the very question here presented. tn
election of Milton Whtneyto this office. Ifthe Eng
lsh language had any meaning, there could be n
| perversiOn mistake. The 2nd section of the 5t
article states that all elections for the States Al
torney shall be certified to- and returns made there
| Of by the clerks of the said counties and city, t
the judges thereof having criminal Jurisdiction +,
spectively, whose duty it shall be (not whose di
cretion) to decide upon the elections and qualities
tlOns OF the persons returned (not upon questO
between two men to who is elected, but to dt
eide upon the elections and qualifications Of the pei
sons returned Who is returned? Milton Viii
ney2 Are you to decide upon his election and qua
ihcatOn? And if it be your duty under this Con
sttution, and the oath which you have taken
decide upon the qualifications OF Mr.. Whitney yo
: are bound to decide upon his election. | care nj
whether you call it controverted election or
contested election. The election comes before va
iudicially by means of this clause in the COnstit,
ton. 1t is suggested that this 29th article of II
4th clause Of the Constitution intereres with the il
risdiction which claim is given to your Homo
which says that call elections of Judges and otht
officers provided for by this Constitution shall
ts.l 4 - i.