The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-12-02

TIE CLERKSHIP OF THE CITY CIRC UIl
COURT-PROCEEDIN YESTERDAY
1t has been before stated that Thomas B. Gather
who was commissioned by the Governor as Clerk
OF this Court had bonded before Judge Krcbs on
one day last week, and had also qualified before the
Clerk of the Superior Court-it was also stated that
Mr. Turner, who held the clerkship at the time
those proceedings took place, had declined to deli
yer the books and papers of the office to Mr. Gather
acting by advice Of counsel, and also from Motif
cation sent him by Mr.. Kerr, who contests the ecc-
tiou of Gather.
Matters stood in this way until Yesterday, when
about IL = o'clock, Mr.. Gather ACCOMPANIED bv
man named Crouch, formerly a Sergeant of Police.
and others, entered the office of the Clerk of the
Court, where were seated Mr.. Turner, Mr. George
Sherwood, Office clerk Mr.. Hooper of the SIM
Mr.. Luther Reynolds, and one two others. Mr.
Gather first saluted Mr.. Turner, and then ex-
pressed himself to the effect that he had been elect
ed to the Office of Clerk OF the Court; had been
commissioned had bonded and qualified in due
form, and thought that he should be permitted to
occupy the office and exercise the duties of the
cerkship, and also said that Mr.. Turner had no
right to keep him from his place.
Mr. Turner replied that he had just received an
opinion from Mr.. Reverdy Johnson on the matter
at issue, which he was reading, and that he was
about to 90 to the Office of Mr. Charles +. MAYER
where a consultation to be held. Mr. Turner
then left the room for the purpose of visiting the
named in the Clerks office. As soon as he had got
out 1t is said Gather, taking the dockets of IS and
90, the only ones in use at the time, from the desk
threw them upon the table and said: "Here Crouch.
you take charge of these and let no one have pos
session of them Gather then turned to those in
the office and told them il they were not there on
official business, that there was the door and he
wished them to leave.
The door was then thrown open, and number
OF men were noticed standing in the hall, among
whom were few of the "Regulato~s,"
and several Of the same character from
other parts of the city. Some Of the gentlemen
then left the office, only one two remaining. In
a few minutes Mr.. John F0rmey, who was Clerk
at times in the Clerks office, came in when he was
told by Gather that if he was not there on bust
ness he wanted him to go out. Mr.. Formey re-
Piled he would 60 out of the office, and 90 into
the Courtroom, from whence no one would dare
to eject him. Mr. Charles F. Mayer also entered
the Clerks Office, and was requested to retire by
Mr.. Gather, but declined to do so.
Shortly after these proceedings, William Schlcy
and Robert G.. Barry, Esqs., who were the counsel
OF Mr.. Gather, came into Court, and in referring
to the matter disclaimed any knowledge of the in
tentions of Mr. Gather; they utterly deprecated
such proceedings Mr.. Barry said that Gather
had broken faith with his counsel, and they looked
upon his conduct in that respect as inexcuSabe.-|
Mr.. Gather had had a consultation with them at
Mr. Schleys office in the morning, and they had
then appointed to meet Mr.. Gather at o clock at
the same place, whence they intended proceeding
to the Courthouse, and there make a formal mo-
ton to the Judge to pass an order requiring Mr.
Turner to deliver to Mr.. Gather possession of the
Office if they had failed in this, them as counsel
they We're prepared to furnish Mr.. Gather with
additional advice but Mr. Gather had not kept
the appointment, and had chosen to act in the man
ner in which he had done, which proceedings he
censured as much as any one in the community.
Alter Mr.. Barry had concluded, there was moth
ing said by the Judge; and the counsel engaged on
both sides held consultation together, the result
of which did not transpire.
The office still in the possession of Mr. Gather
who has placed therein his appontees, among
whom is Mr.. VIM. II. Schey, formerly Clerk in the
Criminal Court
paper having the name of Thomas B. Gather
written over 1t was pasted over the name of Wm.
IL. H. Turner on the entrance of the Clerks Office.
Opinion Of Counsel in regard to the Contested O3fce
Of the Cierhship of the Circuit Court
William H II. Turner duly elected and qualified as
ClerE OF the Circuit Court for Baltimore city He was not
candidate for election Two other persons were one
of them returned by the Judges of Election as elected
and the other has in proper form election
Mr. Turner has also transmitted to the Governor his own
protest and charges against the returned elected
The judges certified the election of the first and
the same was returned to the Governor formally ad
him. The former Clerk has surrendered the office to
the alieg successor who has qualified by taking the
oath %c, and the questions submitted for opinion
are:
1st Whether the former Clerk if there is no legal sue
cessnr has the right hold over and to discharge all
the duties of the Office as before?
~ Whether there is legal successor
wit mn
and answer both afimativey.
ist The common law doctrine is well settled that a
temporary officer in the absence of express negative
words prohibiting it, remains in Office beyond the neriod
Tor which he is appointed elected If there is no legal
successor This is upon grounds of public policy
lere not only nothing in the State Constitution to this
'rI IN relation to tins ci"rkshp, but on the contrary,
clear recognition Of the rule
ID This depends upon the meaning Of the 29th and
joh sections of the 4th article of the Constitutions OIL
ms We think reasonable doubt can be entertained
Ihc Goth evidently relates election not contested 1t
i"eS not say or intimate that in the of contest
ne Governor Is to decide upon the election quaica
ION OF the clerk of any of the officers embraced in it,
lis duty under it is merely ministerial He shan issue
ne commissions to the persons returned to him as elected
he legality of the election and the qualification of the
1rrSon elected are not submitted to him. and his action in
ssung the commissions decides nothing and is not de.
signed to decide anything.
What makes this yet apparent is the provision of
The SOh section That provides for two classes of cases
LIST There being an equal number of between two
'F more opposing candidates. And End there being a
contest as to the election of the person returned by the
Judges : elected
In the first the Governor is to order new election,,
III the second he is in the words of the section he
shall send the returns the House of Delegates who shall
ud&e of the election and qualification the party claim
ing to be elected In this the Governors functions
are purely ministerial and not judicial discretionary
he section embraces not included with
IN the 18TH and not within its object That looks to an
iiccol not disputed nor doubtful either because of the
absence o greater number Of than are given to
any other candidate or because of there being contest as
TO the election
These cases. both of them are taken out Of the Doth
section, and provided for exclusively by the succeeding
one The Governors authority them is respectively
TO order new election and to send the returns to the
House OF Delegates that they may exercise their conSt
utona and exclusive right in Judging of the election
ana qualification Of the partiesn The two sections are
/" ne taken together and construed If the covered
by the secont were in terms excepted of the first hy
roVlSo or otherwise We are therefore, Of opinion that
there is entitled to the Office in question or
coml etent to its duties but the old incumbent.
REvERDY JOHNSON
CHARLES +. MAYER.