Year: 1859




very large number of persons assembled in the
courtroom Yesterday, anxious to hear the opinion
OF Judge krebs in the matter of the petition of
VIM: H. H. Turner, Esq, asking TO be restored to
the duties of the Clerkship of the Court.
few minutes before eleven o'clock Judge Krebs


took his seat upon the bench, and directed that the
dockets and seal of the Court be brought into the
courtroom. The order having been complied WITH
the Court proceeded to deliver the following
opinion:


In the matter of the Petition of In CIRCUIT CouRr
WM. II. H. TURNER to he re- BALTIMORE CITY


Clerk of this Court


Vim. H. II. Turner was elected Clerk of the Circuit
Court for Baltimore City on the third day of November
1853 to "hold his office for six years from that day and
until new election is heidi He qualified as required
by law, entered upon the discharge OF the duties Clerk
continued to perform them until nterered with by Thorn
as b. Gather who, the 1s day of December 1859 en-
tered the apartment occupied by the said Turner such
CLERK and where he then engaged in the performance
OF the duties of his Office claimed be the pos
session thereof to the exclusion of said Turner acu
ally take possession thereof and of the records books and


papers tereln The circumstances attending the taking
and holding the possession of said Office the said re
cords ahd papers, are particularly forth said pc


o OF turner and Tor the purposes of the that
has been made at this hearing, admitted to be true


Mr. Gather claims to have been duly elected Clerk of
the sad Court on the Ind day of November, 1859 at
an election held in the city of Baltimore on that day


The returns of the said election made required by
law to his EXcelency the Governor of this State on
the 10th day of November 1852 issued commission for
said office to said Gather He. 25h of the same
month"; executed bond for the discharge of the duties of
Clerk of the said Court, which, in obedience the drec


tons OF the law, was approved on that day by the Judge
thereof.


1t is contended the part of Mr. Turner that at the
time Mr. Gather it is alleged, elected him from the
said Office he Turner was entitled to the occnnotion f
the sad ohce, and to have charge Of the and
papers belonging to the same, to perform all the
duties OF CLERK OF this Court Notwithstanding the cousti
tutlona term of six for which was elected
pred on the Sd day of November 1859 new election
place on the I'd day of Noven,ber at yEcl, coJ;
uates for the Office of Clerk of this Court were voted for
The ground upon which Mr.. Turner maintains the right
that he asserts is that though election had been held
fOr lnr of ti,isF Fn,,rF ~,
Tor at said election in opposition to said Gather and
large number of voters charge that said election was void
Tor many and sufficient reasons and that this charge was
IN due manner and form, notified to His Exceency the
Governor before he issued the commission aforesaid To
sad Gather and that the said election the Con
stuton OF this State "a OF contested election and


that the Governor should have merely sent the returns to
the House of Delegates, who Judge the election
anu quaihcatons of the candidates 1t is insisted for


Mr. Turner that the Governors action upon the returns
and his issuing a commission to Mr. Gather were unau
thori2ed by the Constitution and the that
the election being contested he should have withheld the
commission and retained the return until the MEETING
OF the Legislature, and then transmitted to the
House OF Delegates, and that the commission is of
no force and effect and Mr. Gather in possession Of no
evidence whatever of his election Clerk of this Court
ana that thereto he tTurnerl being entitled ito hold
ms Office for six years from the time his election and


ntta nelo election is held necessarily retains it. until
due proof is produced of election at which another
OIerk was elected The provisions the Constitution
under which these parties maintain their respective
clams are found in the 29th and 30h sections of the 4h
aruce the former of which directs that AL elections
OF Judges and other officers provided by this Cons
tuition shall be certified and the returns made by the
clerks or the respective Counties to the Governor who
shall issue commissonso the different persons for the Off
ces to which they shall have been elected and in all such
elections the having the greatest number of votes
shal be declared elected" In the other section il is
provided THAT in case of any contested election for
Judges Clerks" &c. ''the Governor shall send be re
returns 10 the House of Delegates who shall Judge of the
election and qualification of the candidates at such
election


is to be observed that this Courts not and ,nnot
be, called upon to inquire and decide whether the ecc
tion held on the I'd day of November last was valid
Office of Clerk of this Court for six years lv virtue or
that election? 1t is clear that the House Of Delegates
alone can under the Constitutions determine that 9ues
ton lnasmuch as it declares that "the House of Dele
gates shall Judge of the election and qualification of the
candidates at a contested election


The question, then, submitted to this Coprt is NOT
whether Mr. Gather is entitled to hold and exercise the
duties of this office during the constitutional term hut
whether he is entitled to exercise enjoy the Office
during the interval that will eapse whilst the contest
sha be pending before the Legislature? 1t question
IN regard to the temporary en ymen the office either
by Mr. Gather orby Mr. Turner.


Mr. Gather has nothing to exhibit this Court in sup
port ofhis claim the Office duringtis interval bnt tie
commission which the Governor has issued The House
OF Delegates has not yet adudcaed any right that he
may have to the Office and therefore he not rely upon
lier Judgment Does, then the commission alone ent
tie him to the office? is said that not because
the true Interpretation of the Constitution orbids the
issuing of commissions by the Governor in the case of
any contested election; and because this is a case of
contested election. There two questions involved in
these positonsone of law, and the other of fact The
question OF law looking to tine true Interpretation
Constitution upon this subject and the other ookiug t
before he in
reierrH"e 70 the contest and presenting the inquiry
whether, i'll the eye the law the election must be re-
ea"eh as at ms moment contested by of the
notification that has been made to the Governor


The arguments that have been addressed to this Court
ny the counsel for the counter claimants this Office for
the interval referred to- in support of opposing posi-
u"ns that they have respectively assumed have been
marked BY uncommon ability and force: but when come
to consider them met by the serioIs and a.
inquiry, whether they should addressed m ore ro
erly to different tribunal Court having thr rnar
by mGRdanuS 10 decide the claims of title tn an oglce
in mss nf
asked. In the late arwood u.s. Marshall repored
in 9Th Md Rep So, this Is said to be the office of man
ddnus that case d. cides clearly that the writ goes the
extent OF relief so TAR then, as this petition looks to


ef by way of determination by this Court of the title
to this office between the petitioner the respondent
ana 10 the establishment Of either in it, may be well ques


toned whether this Court has jurisdiction grant the
lief prayed Its jurisdiction is derived from the Act of
Assembly, which established and is restricted to cG in
equity and leases Of hd5eaS corpUS does not en-
brace relief by way Of HndqmUS which is a Common Law
process and the only appropriate mode of settling the
controversy between these parties in to this Of
fee No decision that this Court might make of this
question between them in proceeding character of
this would be regarded dicdta" by the proncr
tribunal to which application might be made by either
for writ of mdndamaS


The exercise of jurisdiction by this Court to settle the


title to this office between these counter claimants might
lead to conflict of decisions upon the same subject be
tween this and coordinate tribunal: result alvays ia
be avoided if possible


From the foregoing reasoning and views, it will ap-
pear that in the opinion Of this Court it entertain
TINS application for the purpose Of ascertanng beces


these parties which OF them is entitled at this moment to
the enjoyment of this Office and the fees and emolu
ments accrung therefrom. But STILL it NAV roperly
entertain it with view the performance of high and
important duty, that Of determining ITSELF and not
6etioeeu parties who is to act as th Clerk Of i Cut
and to discharge the duties imposed by law upon that
officer This duty gives to the Court right to make
this inqniry as an inherent power, growing of
provisions of the Constitution and the law by which it
was established That law declares that there shall be
CteTk for the said Circuit CcRrt, who shall his cleo
ton &c stand on the footing with the Clerk of the


superior Court OF Baltimore city He must, then, de
rive his authority to act the Clerk Court from
the people By Election After he has elected he must
come INTO THIS Court and exhibit to the Judge thereof
legal and peent proof of his having been so elected
OF his having been duly qualified discharge the Office
ready enter upon duties and to take the charge and
custody Of e records Of the Court and papers belonging
TO the office


l am then brought to the inqury-IIas Mr. Gather
complied with these prerequisites Has he produced
such proof this Court should deem sufficient of his
election as its Clerk? The proof exhibited by him for
this purpose is commission issued by the Iovernar
under the great seal of the State in declares
that the people did eect' him (Gaither CLERK of the
Circuit Court for Baltimore City" Should this Court
then, deciding the question simply for itself and


reference to the rights Of opposing claimants nor in the
exercise ofits ordinary jurisdiction accept this commits
sion as sufficient proofof Mr. Gathers election
titled to act as its Clerk


1t is to be observed that the Court, looking the
commodaton of the public and Of its sutors by cOninu
ing its proceedings without interruption, may well feel it
self more interested in the question whether person
claiming to be its Clerk may be deemed be authorized
and qualified to discharge the duties of the Office for the


time being than in the question whether for
the ofhce the he able
he has the better title it?


1t is certainly due tie Executive Department Of the
Government that this Court part of the Judicial Depart
mcnt should regard the source from which this commits
SION Issues Ii emanates from coordinate branch
Government. II IS signed Jy the G9rernor with the Seal
Of the STATE anered IN obedience the command of the
Constitution, which says: All public commissions shall
be signed by the Governor with the seal of the State
nexed.'


1t is delivered the person who holds it, setting forth


in the body of that he has elected Clerk of the Cir
cult Court of Baltimore city pursuance Of the 2gth sec
ton of the fourth article of the Constitution which directs
that the Governor shall issue commissions the differ
persons which they shall have been
respectively elected" In issuing this as in
the performance of executive acting
der high sense Of the requirements of official duty
posed upon him by the Constitution and under the sol
emn obligation of his oath Of Office. 1t is but fair and
reasonable that this Court sould ascrhe the
convictions that this of the which he
authorized by the Constitution issue comnissio
thatt should presume that he acted under the
that there was nothing in the Constitution which prevent
ed his issuing commission to person whose election be
ing contested to be Indicated by the House Del
egaes, that the contest could be originated
him, and prior to the meeting of the legislature or if
could that the documents before him. either in substance
or form, did not amount contesting Of the election
cannot therefore resist the conviction that
Court and the person producing the commission, the
Court must recognize him the Clerk. The Consttu-
tion certainly designed that the issuing of commis-
sion by the Governor, should be something
idle ceremony. 1t meant that it should the pur
pose OF evidence under circumS and though
before the Legislature, in of contested election
before Court of competent authority in investigation
of the title to the office, might have little weight yet
my opinion the Constitution intended that with the Court
of which the person holding the commission elected
the Clerk it should be deemed altogether sufficient
he had given bond and taken the required law
entte him to be allowed to enter upon the duties OF
the office In my Judgment, this should he regarded
the proper practice in like 1t eXemDts the Court
OfeXamniDO Of