The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1860-03-31


or because they tend to destroy that harmonious
action for the common good which ought to be /
maintained, and which sincerely desire to cherish
between coordinate branches of the government; /
and, finally, because, if interested, they would
tablish precedent dangerous and embarrassing to /
all my successors, to whatever political party they
might be attached
(Sigued) JAMES BUCHANAN.
WASHINGTON, 2Sth March, 1860.
----
THE ROLLERSHIP-OPINION OF MR.
JARRETT'S COUNSEL.
Our opinion is asked by A. Lngan Jarrett, Esq,
upon the following state of law and facts:
Messrs. Jarrett and Purnell were candidates for
the Comptroership of Maryland at the last No /
vember election. Mr.. Purnell was returned as |
stoned by the Governor. Mr.. Jarrett contested his
election before the House Of Delegates, to which |
body the decision Of such contest is given by the
act of 1853 Oh. 244 (Code, art 35, sec. SPY.
On the 10th of March, the House decided that |
Mr.. Jarrett had received majority of the legal |
votes cast at the election and declared him, in
sequence, elected to the office. Mr. Jarrett has !
rendered his Nond to the Governor, and offered |
to qualify and enter upon his duties. His right to |
do is questioned, under the act of 1853 ch 403,
Code art. o. whereby it is provided that,
''The Comptroller of the Treasury shall hereafter |
be required to file his bond and qualify, by making |
the declaration, and taking the oath prescribed !
by the Constitution and laws of this State, on or
before the second Wednesday of January nert en-
suing has election, 'ohich second Wednesday of
January, the term Of has office shall commence"
Mr.. Jarrett desires our opinion to whether
by the terms of this act, he is precluded from bond
ing and qualifying at the present time. In our
judgment it is quite clear that he is not.
The Comptroller is a Constitutional and not
Legislative officer. He derives no rights to bis
office from the General Assembly, and under the
Constitution Cart. 6. p he is only subject to
their control to his qualification, in this, that he
"shal take such oath and enter into such bonds for
tbp faithful 1icpha of Mt az no Ipn
ture shall prescribe" No express power is given
to the Legislature in regard to, his bond, except
that of prescribing its terms and it is very obvious
that such a power does not involve the right of af
fixing arbitrary limits to the time within which the
bond prescribed shall be given and received. Ju-
risdctiSn the form does not imply jurisdiction
over anything beyond it. If, therefore, the act of
1853 CHI. 403, did, in terms prohibit the Comptrol-
Ter from qualifying after the second Wednesday of
January next ensuing his election, it would, in
opinion, transcend the constitutional power of the
Legislature in the premises. But it contains no
such prohibition, express or implied No rule OF
statutory Interpretation is more generally recog
nized than that which distinguishes between Ian
guage prohibitory and language merely directory.
AS laid down by Courts of the highest authority,
both in England and in this country, in its applca
ton to cases like the present. the rule may be, that
"Where statute requires official act to be done
by given day for public purpose, without any
negative words restraining the doing of the act
afterwards. it shall be regarded merely directory
as to time and the act shall be valid, although
done after the time shall have expired. (See Ex-
parte, Heath 8, Hill AZ, Sedgwck on Stat. and
| Const Law, 1858, ct seq. and Smith on Const. and
Stat Constructions. 1872 ct seq.) .
| In New York &C Wendall, 1867 it was applied to
case where the militia law made it the duty of the
commissioning officer to appoint cOurt-martial
son or before the LIST day of JUICE in each year.,
and fine imposed by courtmartal appointed
after The lst of-June, was still held legal. In Con-
nectcut ~ Conn, 243) a city charter required
! jurors to be chosen the first Monday of July,
and it was held that a jury chosen in August was
still legal. The reports of decisions in the other
States contain many similar (26 Alab Gl9, Is
! Texas 50; Indiana l46-4l6).
The principle detnitively recognized
| in matter of private right, by our own Court of
Appeals upon the construction of the insnlvent
act of 1884, in the of Teackle, Trustee of Hig
gins, Crosby, to be reported in the l4th Mary
land, The of the general rule, stated
above, is: That the public service, or duty is the
substantial thing to be done, and the time OF doing
it is of subordinate importance. IT, therefore, thu
or the other is to be sacrificed the nonessental
must yield In the case before us, the constitu
tional end and chief purpose is that the ComptrOl
Ter, elected by the people, shall take the OATH give
bond and qualify. That he shall do so by the Sc
cond Wednesday in January is matter of legisa-
tive direction, and of comparative unimportance,
and must be disregarded rather than that be shall
be prevented, by its being regarded, from qualify
ing at all. But not left to the naked appli-
cation of the rule referred to- By the act of 1853
oh. 244 has been said, the decisions of contested
left to the House of Delegates. That body does
not meet until the first Wednesday of January,
and it is consequently simoly impraticable tor
any decision to be had, in such cases, by the Sc
cOnd Wednesday of the same month.
If, therefore, the act of 1853 oh. 403, is to be
q construed as prohbory, it follows that the act
of 1858, CHI. 244, is practically annulled; and no
Comptroller cOntesting the election of candidate
| who has received the commission, be it ever so
wrongfully, can ordinarily be declared elected in
time to qualify. The decision in his favor must
always, and of necessity, be fruitess and the
stitutional right to contest be, of consequence,
mockery. The statement of such proposition
seems to furnish its sufficient reiutation.
1t is settled rule, that statutes in pdri materia
are to be taken and construed together, and the
legislative intention is to be gathered from them
as whole (State as. Baltimore and Ohio Railroad
Co., II Gill 81 john, $780, The Court of Appeals
has eXpress determined, that if laws and statutes
SeT 20 stand yet av h saRd
IL Canal Co. rs. Baltimore and Ohio Railroad Co.,
4 Gill and john, ~.
A fortori, does such rule apply where statutes
to be interpreted were passed at the same session
and flowed from the same legislative mind? /
it were otherwise, and one of the two cOntrarian
statutes here must necessarily give way to the
other, it would seem but reasonable to require tina
the law determining the secondary and non-essentia
matter of the time, should give way before the
substantial purpose and essential object Of the
other.
There can, however, be no necessity for setting
: | up any sucn CONNECT IN tue present case UOOC
sense and sound legal principle combine, as it SEEM
to US, in suggesting, the true view of the entire
question, that the act of 1853, oh. 403, mean
to apply only to the case of an ordinary uncon
tested election, where its provisions can be ope
rative, and not to one like the present, where it
operation is practically an impos sbty.
If Mr.. Jarrett cannot bond and qualify now, h
cannot do it at any time, for the day designated
the second Wednesday of January nert ensuing hi
election, and no other January will answer If tn
statute invoked produces such a result, it amount
to ths-that constitutional officer, cOnsttutional
declared elected is,by law, prohibited, without hi
default, from qualifying for his office, and the in
cumbent holds over-the Constitution and the cleo
r ton to the contrary notwithstanding. The sam
t result by parity of reasoning, would follow SHOULD
the returning officers fail to make returns, tn
f Governor fail to commission until after the secon
e Wednesday of January, in the of an ordinar.
e election uncontested.
3. Such unavoidable conclusions, flowing from tn
adverse view, would appear to demonstrate its IN
t soundness without further argument.
, REvERDY JOHNSON,
OHIO SCoTT,
: S. TEACKLE WALLIS