Year: 1859

.. But this respondent here states that having
ally of the counsel for the petitioner remark
was made by said counsel which this respondent is
satisfied, not designed to be offensive or irrita
ting but which, nevertheless had the effect at the time
under the circumstances and in view of all that had
rrate and excite this respondent to such
tent under the influence of his excited feelings and
yielding to sudden impulse, this respondent, without
previous concert with and without any previous
y formed intention to dc, walked into the Clerks office
and demanded possession from the pettonerthat the
petitioner then stated that he had just received the opn
ion of his counsel and he offered the paper to this
dent but this respondent declined to read the same and
reiterated the demand of possession stating that this res
ponden had come for the purpose of entering into posses
sion that the petitioner therefore, naming one OF his
counsel, said he wold go and consult h ana iTit tie
Office and did not afterwards return that after the peu
toner had left the Office this respondent called into the
office James D. Johnson whom in case his services should
be necessary this respondent had selected an addition
al Clerk and this respondent after the petitioner lett
the Office placed the dockes in charge of David Crouch
whom this respondent had appointed messenger and col
lecto The allegation that this respondent entered the
said apartment attended by several persons for the
apparent actual purpose of sustaining this reSpon
dent by personal OF other violence, Is wholly un-
true So. The respondent expressly states that
there understanding between him and said John
and said Crouch with either of the that they or
either of them should accompany this respondent -.
This respondent further states that his entrance into the
office not in any respect violent or threatening
Subsequently good many persons came into the otlce
out ne AYERS that they ala not come III ny any %
concert or understanding between them, or any oil tem
and this respondent. And this respondent admits
that he desired all persons in said office who had no
business transact to leave the ohce, ana ne uhdouO
edly intended in that notice to include the said counsel
counsel for petitioner This respondent further states
that all contained in said petition variant
from the statements and admissions in this answer, are
utterly untrue And this respondent now states
that he sincerely regrets that he did await the advice
of his counsel and pursue such directions as they might
have given them. But whilst expressing regret
thus sincerely this respondent does not mean to concs
does he feel that he acted violently, unjustifaby,
improperly or illegally He is well aware that his course
of action, unexplained, liable to misconstructon,
and that it exposed him to misrepresentation.


After the reading of the answer


The Hon. RCverdv johnson said


May it please your Honor, have dep rted from al
most uniform custom by reducing writing what have
to in regard to this case; and have done because
of the extraordinary character of the itself and for the
purpose of saying nothing that do not actually think,
and to myself from being Inexperienced as to what
] shall say.


The matter before the Court presents three questions
which will argue in their order.


L Has Turner the petitioner, such an interest, prlm@
facie entities him to ask the relief which his petition
seeks?


2 Is he entitled to the Office and its archives Of which
he alleges that he has been by force dispossesSed


8 If he is is it within the power of the Court to
nstae him in such possession and to punish the wrong
doer itself?


l. 1t is not denied and is indeed judicialy known to
the Court that Turner legally elected to the Office OF
its Clerk duly qualified entered its duties and
tinued to prosecute them to the very minute Of his al
ledged fnrcibe dspossession


1t is now an open question whether his right to
the Office docs not continue beyond the period for which
he elected and to the period when there is le
gay qualified successor The eNigences of the public
service require that this should be the As it may
happen that election is held at all for successor
Illegal one ard that if there is election the party
elected NAV not accept or may not able to Qualf
public offices would be closed unless there provision
for their temporary occupation That provision, the Com
mon Law, in the absence of any constitutional or
statutary one, makes. in its we-settled doctrine
that the incumbent continues in Office until su
perSeded by legally qualified successor. The policy
of the rule is apparent, and addresses itself to
the good sense of all should, therefore, confidently rely
upon in this instance, of itself authoritative and
conclusive if it had received judicial sanction in
our State But this is not necessary The very point
has been decided by our Appellate Court, and in
arising under the present State Constitution In Thomas
rs O'0hgS, Maryland Reports lS9 and I'll where the
duration in office of the Comptroller of the state after
the election of Thomas Comptroller under the
Constitution, involved. The Chief Justice
observes, 1--WE have already said, nothing in the
Constitution which fixes his Of service years


rom the ay of his election and although it is not any
'where expressly said in the Constitution that he
shall continue in his office until his successor has
heen duly elected commissioned and qualified yet it is
obvous that, looking to the spirit and policy Of
the Constitution manifested in its provisions affect


ng the other officers of the government in regard to
whom it is provided, they shall continue in Office until
superseded by their qualified successors, that was not
the design of the trainers Of the Constitution there
shouId be an nerregnum in the Office of Comptroller,
land thereby suspend for time the whole operations of
"the Treasury Department Of the State"


The question is consequently, longer adisputed one
with us; and the result of course, is that Turner the
petitioner now the Clerk Of this Court there
successor language of the opinion just quoted,
duly elected, commissioned and qualified"


Election is not sufficient commission is not sufficient.
The two must coext and with them must also be com
bned the hrd-qualifcation. This brings us to the Sec
ond inquiry.


H. Is the petitioner now entitled to the office and
the custody of its archives? This being clear, unless
there is duly elected, commissioned and qualified sue
cessor the question is Is there one2 The respondent
claims to be such Is he2 Upon the facts before the
Court this depends upon the proper construction of the
29th and 30h sections of the 4th article of the Consu
tion The respondent relies for his title TO the office
his having been commissioned by the and since
qualified. Does such a commission in like this
give title, furnish prnaa ace evidence of ttlef
He rests exclusively on this imminent the commission
as evidence nua face in one sense conclusive as
the law stands of his having been duly elected.
That it has such effect effect when the election
for decision before the House of Delegates under
the Both section before referred to OF the Constitutions
suppose will be conceded In that besides the proc
which the House may direct be taken, there is bt
nothing before them but the election returns.' The
action OF the GoVernor, either IN issuing or reusrg
issue commission is of no avail there His judgment
is not in any degree to affect that of the House. the
questions before the House. The jurisdiction of the
House exists when the election is "contested and il
the exercise of such jurisdiction the Governor is in
wise TO participate His duty IS simply ministerial liz
is to ''Send the returns to the House, who Judge
of the election and qualification of the candidates


The commission therefore, clearly being evidence
whatever in case contest before House. the ues-


on is is it evidence in the matter before the Court eth
er conclusive or ,i,an frce2 This involves the inter
probation Of the 10Th section Does this considered by
self embrace the of contested election and if
does it embrace such case when taken in connec
ton with the 30th?


l. The object Of the section was LIST, to provide of


cer to whom the certificates and returns of all elections
should be made by the clerks of the counties and il
whose custody they to remain. This power is thu
Governor for the time being, and in his official capacity
I'd. for issuing commissions.


The meaning part of the clause clear The
clerks certify and make their respective
the Governor. Is intended to give the Governor
returns the authority decide either by
refusing to issue commission the legality Illegal
ty particular election Is he in that mode (ant
other mode is provided by the sectionJ to iud
Inent nn Cdcjc conclusive, as to who is elected? Hi
only means of information the certificates and re
These may he fase-they may be steeped deep il
official niquity-they may be the vouchers conceal
| heardof fraud violence, or both. He has powe
looking alone the of the section to Investigate
the facts No witnesses be examined, forced t
testify by him No process is furnished him to compe
the attendance of Witnesses and power given hin
to examine such may offer or be willing to testify II
is clothed with no single judicial function Nor did th
Convention design vest him with any such power q
! all the attributes of political authority in government


like ours, to winch special regard should be had, that
preserving the perfect purity Of the ballot box is the
essential. There rests the only security which b.
obtained the quiet and wholesome career Of our in
stuons Corruption there-outragc here-illegal vote
reCeytd-legal votes rejected, by intimidation, dc
TERED the oring-and our form of government worse
infinitely worse than that of a single despotism ard
permitted must or later end in the substitution
another in which least all violence will be prompt
rrbuked and punished. This security therefore far
it is to be found in power to frusac all such effort
with us after in the first instance they have been
cessu to cl)thc the House of Delegates with the
thority, and the exclusive authority, TO decide whether
in any particular nsancc the candidate claiming to hav
been elected, elected and qualified This authorit
member of the Convention thought of vestng
| the Governor, either fully partially.


His power, under the Goth section when he is in possc
sion o the returns from tn" clerks is, not to issue





for the offices t. which they ShnH hdre been reSpe
tirey elected " The very words imply caid clection
an ltadiSputo1 rdlid ciecOH The Governor is to pa
10 Judgment, in the judicial Of the term, upo
| such validity, and is therefore given power, wheI
that i legally contested to investigate it. dIerel
construction Of the section would "A premium
and incentive to fraud in candidates and Judges Of ee


ons The House of Delegates, under the Constitution
is bienniay. Is the candidate, illegally, frau
ulentlv eected-hmself perhaps party to the fraud
he in Office at once by power of commission, whic
the Governor who to issue it. has no right to reus


le DWer pUuQi re


to take proof concerning the legality of the election


the qualifications of the candidate returned tp him
elected? Is the candidate to enjoy the fruits of his in
quity unquestoned until the House of Delegates shall


in session and Oust him from the place he may on


be unfit for hut may dishonor?


What is true 5 n Clerk ship is equally true 5


Judges, and other officers. Judge of any Court in II
State might by this reading of the section be nvestt
with the high the holy function of administering juSc
whose hands might be stained with the fifth of CORFU


ton, whose morals would disgrace brothel, and who
asserted election have been the result of the vile
fraud and the most undisgused outrage participated


by himself aud the Judges of Election. Was it the pu


purpose Of the Constitution to subject the people
ndignity and disgrace, to make the Governor,
spite of himself party to degrading a result2 Ar
We if he must, though the election Of such


tested, issue commission to him, and the commission
with qualification by oath and bond, give title to I'll


udgeship TO be unquestioned except before the House


Delegates when they shall asssmble-that very resu
may to the incaculable injury of suitOrs
the deep diShonor of the State.


submit, however, that our condition, bad as it is


respects, is not bad this, and that the trr


meaning of the section construed by itself, is, that tn
commission is only to he issued by the Governor, in


the election of the particular officer is not contested Th


done, the power of the Governor to commission does


attach. The then is 90 before different, and f


this purposea preferred department of the Government


the department whose general function it is to enqu
into public grievances, and whose particular and excl


function enquire into that special grievanc


an alleged Illegal election Of Judges Clerks of th