Year: 1859

accept the said oce yet he insisted that he received
majority of the legal votes cast for the Office of States
orney in this city, because the election held in all the
other wards fraudulent and void &c.


The petitioner suggests by which these wide
charges Of fraud and corruption be proved leaves
1t entirely to the judgment Of the Court to point the
they proved But the Court does not perceive
how in what legal the necessary proofs can
procured and therefore amongst other declines
to undertake the underlined proposition of the petitioner
and his counsel learned in the law.


The subject put forth in these petitions te inquired
into by the Court would comprehend the right of every


man in the city to vote who did vote and in which ward
ana whether he voted in more than ward. and also
whether those who did not vote deferred by idle
fears or ill usage, and who they intended to cOe for
Tor II they had voted in order to enable the Court to de-
termne whether Whitney fairly elected or whether
Thomas would have received majority of the legal
OF the city II the election had been fairly conducted, and
also whether the judges of election guilty frauds
in refusing to receive votes from persons entitled
vote. &c.


If all this chimerical but expansive and impossible
labor was undertaken in what good could it result
whose beneftf Mr.. Thomas does not claim the Office
but says he would not accept it under such
ces, and says cautiously for if he
election, and claimed the office the Court according to
the rules of equity would compel him give security to
pay all the costs incurred, if he failed to prove his


If the Court took up the as presented and the pc


toner fails prove his charge the city would be bur
dened with incaculable expense and delay, and the
of justice suspended during the in the
Criminal Court for want of prosecutor if the election
aside an toto.


The respectfully suggest to those who are
anxious for reform, that there number of penal
statutes in this State against illegal voting and the
OF which
declare that elections shall be vacated because of such il
legal conduct, although candidate may contest the re-
turn OF the Clerks and Judges giving his opponent
majority Of votes by proving that of the
for him were illegal and claim the Office by showing that
if but legal votes had been counted the contestant
would nave gained majority OF Them This proceeding
does not set aside the election, but the contestant
the office in virtue Of his having received majority of
legal votes at said constitutional election If the whole
election void, then contestant could have been
elected to Office nor any other candidate This the
position claimed by the petitioner Mr. Thomas who CON
to m
elected but to have the whole election in the city nu


fed in the expectation that the Legislature will order
election perhaps if they do their duty to the public
&c, as his counsel, Mr.. Gill said.


The Grand Jury have found number of indictments
against persons charged with having voted twice or
oener and of the judges of election for acting
gay and against number Of rioters at the polls
indicted at common law or act of 1909.


The conviction of these parties would not operate de-
feat of the election.


AS of these questions this Court is not bound
to decide the case before it, they will be passed
forever


Mr. Whitney has filed to the petition of Mr.
Thomas, in,whch he states, in substance amongst many
other things, "That the Clerk of the Superior Court of
Baltimore has duly certified the Judge of this Court
Criminal COurt of the election States Attorney for
this city, held the first Wednesday of November
D., 1859, and by which certificate and appears
that he 1.-THE said Milton Whitney, was duly elected to the
said Office and that since that time wit on the 17th
day Of the month he received from the
Maryland a commission States Attorney under said
election, and specifying the same; which commission
was attached formal notice in he failed qualify
within thirty days after the receipt of the commission



act of 1854 ch. 1S.n


In his petition Mr. Whitney refers to the vari-
articles in the Constitution under which he elect
ed in the year 1885, and still retains office until the st OF
January 1860 and claims also hold office until his sue
cessor is duly elected and qualified; and election
can be held oene than in four years he holds
office in virtue OF the election of 1856 until his
is elected in November 1863 &c II this Court should
decide this last election void and set it aside he would
hold over till election, &c He filed motion
to dismiss the protest and petition of Jno H. Thomas


Before proceeding further it may be proper cite the
the election a3 al
which that in all the twenty wards of the cty
Milton Whitney had received II 4Si votes and John
Thomas 583S votes, and Epaphroditus Swinney had 81
votes for States Attorney; wherefore they return that
Milton Whitney elected


In the next place the Court will proceed examine the
different sections of the Constitution cited argument
counsel on both sides and relied by them prove
that the Court ought to set aside the election the
ohce to the incumbent The most important and
necessary consideration court the power to
effect the object sought by one party and the security of
the constitutional rights OF the other As the question
raised in this has not been settled by any decision
IN this state TIE Court has given its best examination
to it.


The first authority cited in the argument was the 1st
section of the 9Th article of the Constitution which pro-
ves for the elections States Attorneys and reads in
these words: There shall be attorney the State
in each county and the city of Baltimore styled
States Attorney who shall be elected by the voters
thereof respectively, the first Wednesday of Novem
Der next and the day every year there
after and hold his Office for four years from the first Mon
day of January ensuing his election and until his
successor shall be elected and qualified and shall be
eligible thereto aud be subject therefrom for





once, on CONVECTION IN court OF law" The Court Will
give its construction to each Of these separate clauses
they occur, in order to prevent confusion will
deavor to give each clause such construction will
annul or be inconsistent with the succeeding ones shall
appear in the conclusion.


The true meaning of these articles has
construction by any Of the courts of this State.


In the first place, this Court understands the above
clause to mean as plainly expressed that there should be
elected States Attorney the first Wednesday in No
vember next, and on the day every fourth year
thereafter, to hold his office for years the first
Monday in January next ensuing his election, until his
successor shall be elected and qualified, subject
val therefrom on conviction, &C.


The Court construed this to mean that Whitney who
elected the first Wednesday in November, 1855
office under this election until the first OF January
1861 and four longer, until the first of January
1863 providing his be not elected qualified
there no provisions in the Constitution 10 forbid this
construction which shall examine in their regular
order.


The second petition, which was relied upon by the coun
sci in argument for the petitioner to negative the above
construction, reads in the words following:


All elections for the States Attorney Shall certified
to- and return made thereof by the clerks
ties and city to the Judges thereof having criminal uris
dction respectively whose duty it shall be decide
upon the elections and qualifications of the persons
turned and in of tie between persons
to designate which of said persons shall qualify
Attorney and to administer the oaths of office to the
sons elected.


The Court is of opinion this second clause refers
itself for its meaning in regard to qualifications the
fourth clause, which interprets it to constitutional
qualifications and other. twill not be pretended
the courts to examine into his legal fitness dis
charge the duties of his Office because that question
submitted entirely to the good wishes of the
As to judging of the elections of States Attornes
the Court construes this to in of
elections betwxt different candidates for the Office
(which is not the raised the petition of Mr. Thorn
as then it shall be the duty of the Court
proofs both sides, and if it should be tie the re.
turns the opinion of the Court after hearing both
parties then the Court may select either of the canddat
it sees fit, to fill the Office, but not upset the election
bnt the contrary to give effect to it. For if other
wise the whole criminal business must be delayed for
four year, until election, unless the officer elect
ed at the previous election could conduct the business
til his successor was elected and qualified


Sec reads thus ''No person shall be eligible to the
office of State Attorney who has been admitted
practice law in this State and who has resided for
least one year in the county city in which he may be
elected"


Those the qualifications and required by
the I'd section, into which the Courts bound
anime, &c.


The 5th section provides in case of removal or vacancy
the officer of States Attorney may be filled by the Court
before the regular time fixed by the Constitution From
which it is fair presumption that the powers Of the Con
stitutions, did not mean to have election called before
the end Of his term of four years


The6 of 10th art confirms the Court in this opin
on about calling elections and reads in these words:


The Legislature shall have power to regulate by law
all matters which relate to the Judges time place. and
manner Of holding elections in this State and of making
returns thereof prOuided, that the tenure and
office and the day of election shall not be affected there
by


This Constitution into effect on the fourth day of
July, 1851.


1t is therefore the opinion and judgment of the Court
that Mr. Whitney accepts the commission in the time
limited by the law of 1854, whether he elected by
majority of legal the last election, is
entitled to hold to his office for another term of
four years and that the Legislature have to call
another election before that time has this Court any
authority to aside the last election prayed for in
the petition and protests Of John H. Thomas which this
Court orders to be dismissed and said Milton Whitney is
permitted to he sworn into office.


In he declines accep question arise Wheth
the Governor commission Epaphroditus Swinney
who candidate under the of 1854 and its various
relative antecedents Mr. Thomas says would take
the Office under existing circumstances) whether the
Court must proceed to fill the under 9Th
of the 5th article


Mr.. Whitney will now before the Court here and
take the oath of Office States Attorney for the city Of
Baltimore.


As soon as the Judge had finished reading, Mr.
Gill arose and said:


| understand your Honor to dismiss both the
petitions?


Court-Yes.


Mr.. Gill-What order does the Court pass upon
them?-I only want the record to be right


The Court (referriug again to the written
opinion and reading The Court orders them to
be dismissed. Taking pen. We'll, Pu put it
order all of them to be dismissed


Mr.. Gill; only desire the record to be correct
sir.


The Court.-Yes, sir. Mr. Gill, would be very
glad if you would carry it up, writ of error
to the Court of Appeals; it is new question. The
Court has given its best construction Of the laws
upOn it. The Court must now go and swear
Mr. Whitney,


Mr.. Whitney then took the necessary oath before
the Court, as States Attorney for Baltimore city.


After this, jury de lundtico inquirendo was en-
paneled, and John F. Osbrake was declared
lunatC and pauper, and directed to be confined in
Mount Hope Hospital.


The Petit Jury were finally discharged, and the
Court adjourned until Saturday morning at 10
o'clock.