Anderson v. Baker

• Decision Date: 02 November 1865
• Parties: THOMAS ANDERSON v. JOHN W. BAKER, GEORGE ERNEST and JULIAN MAGRUDER.
• Court: Maryland Court of Appeals

23 Md. 531

THOMAS ANDERSON v. JOHN W. BAKER, GEORGE ERNEST and JULIAN MAGRUDER.

Court of Appeals of Maryland.

November 2, 1865

[Copyrighted Material Omitted]

APPEAL from the Circuit Court for Montgomery county.

This is an appeal from an order of the Circuit Court for Montgomery county, dismissing the petition of the appellant for the writ of mandamus to be directed to the appellees officers of registration, commanding them to register his name on the list of registered voters for said county and district wherein he resided. The facts of this case are fully stated in the several opinions filed by the Justices of this Court.

The cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH, COCHRAN and WEISEL, J. Robert J. Brent and Thos. G. Pratt, for the appellant:

I. The petitioner is entitled to the summary relief of the writ of mandamus.

II. That all those provisions of the registry law, which provide the mode of appointment of the officers of registration, and which authorize them to determine the qualification of voters, under section 4th of Article 1st of the Constitution including the test oath, are null and void, and contrary to the Bill of Rights and the Constitution of Maryland.

III. That the disqualifying clauses and the test oath of the 4th section of Article 1st of the present Constitution, and the registry law of March 12th, 1865, so far as the latter undertakes to carry out the disqualifications declared by said section 4, are null and void, by reason of the prohibitions of the Constitution of the United States.

IV. The disqualifying clauses and test oath of section 4th of Article 1st of the Constitution of Maryland, and so much of the registry law of March 24th, 1865, as undertakes to carry the same into effect, are null and void, as being contrary to the fundamental principles of justice and reason, and of American Republican Government.

I. The writ of mandamus is the proper remedy in this case. 3 Black. Com., 110. Tapp. on Mand., 64, and cases cited. Runkel vs. Winemiller, 4 H. & McH., 429. State, relator McClellan vs. Graves, 19 Md. Rep., 374. See, also, cases cited in the appellants' argument in Hardesty, et al., vs. Taft, et al., 23 Md. Rep., 512. The petitioner has no means of obtaining his elective franchise except in a proceeding of this character. If he recover damages, that would not give him the franchise; and if the Courts do not sustain proceedings of this character, the elective franchise of the citizens of Maryland will be subject to the uncontrolled caprice of the Executive appointees.

II. The registry law is in contravention of the Constitution of Maryland.

Sec. 1 of the registry law, authorizes the Governor of the State to appoint " from among the citizens of the State most known for loyalty, firmness and uprightness, three persons for each ward in the city of Baltimore, and for each election district in the several counties of the State, who shall be styled officers of registration."

The power to appoint is given to the Governor. It is submitted that this is subject to section 13 of Article 2 of the Constitution, which provides that the Governor " shall nominate, and, by and with the advice and consent of the Senate, appoint all civil and military officers of the State, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office."

The Legislature has not selected " a different mode of appointment," for it has selected the Governor to appoint, but it has not changed the condition under which the Constitution says the Governor only shall exercise the power of appointment. It follows that the Governor should have nominated these officers to the Senate, which was in session at the passage of the law.

The intent of the Legislature to aggrandize the power of the Governor and his agent, and to make him and them the sole despotic dispensers of the elective franchise, in exclusion of the Constitutional jurisdiction of the Judiciary, and in violation of the Constitutional rights of the citizen, is manifested:

1. By withdrawing from the local constituencies the usual privileges of selecting officers whose functions relate entirely and exclusively to the electoral matters in the respective districts and wards of those constituencies.

2. By conferring on the Governor, for the first time in the history of the State, the unusual power of appointing officers for the wards of the city of Baltimore and the election districts of the various counties.

3. By removing from the Governor the ordinary restraint of the approval of his appointments by the Senate.

4. By dispensing with the usual and ordinary qualifications, which provides that the residence of every officer shall be in the district, ward or county in which he exercises his functions.

5. By creating, for the first time in the history of Maryland, a new set of officers, called officers of registration, and vesting them with the most despotic powers, including not only the ordinary judicial powers, which belong to officers of election, of determining the usual qualifications of age, color, residence, alienage, & c., but the unusual functions of trying citizens judicially for disloyalty, and if in their judgment the guilt of the citizen be established, then to forfeit his franchise of voting.

The intent thus manifested, is carried out by the registration law, which is claimed to be contrary to the Constitution of Maryland.

It will be seen that the Legislature has conferred on these Executive agents, called " officers of registration," the power " to enquire into and ascertain if any person has not done any of the acts which are declared in the 3rd, 4th and 5th sections of Article 1, as causes of disqualification; and if the evidence brought to their knowledge shall satisfy them that he is disqualified," they shall " carefully exclude him, even if he have taken the test oath prescribed by section 4 of Article 1."

From this it appears that the test oath is not intended as a proof of qualification, but is only to be regarded as some evidence " brought to the knowledge" of the registrars, and is to be passed on by them as other testimony.

The " careful exclusion" from the list of qualified voters, is based upon the conclusion or judgment arrived at by the registrars, on the evidence " brought to their knowledge after diligent inquiry." To prosecute this inquiry or trial, they are invested with the power to attach, arrest and commit citizens of the State, in the same manner as a Judge of a Circuit Court, with this difference, nevertheless, that the registrars, or Executive agents, are not to be troubled with the necessity of informing the citizen of the nature of the charge against, or of confronting him with the witnesses against him, or giving notice of the time of trial, or of making any written record of the trial, or even of the " acts" for which he has been tried; but they must enter in the " seventh column of the books of registration" their judgment, by simply writing, according to section five of the registration Act, the word " disqualified for disloyalty, under the 4th section of Article 1st of the Constitution."

The registry Act in no manner undertakes to designate what species of evidence shall be had by the registrars in the examination of cases; it only says, " if the evidence brought to their knowledge shall satisfy them," they shall disfranchise the citizen.

When the vast importance of this delegation of disfranchising powers to the registrars is considered, it is vital to determine upon what evidence they are to proceed.

If " letters, goods, money or information be unlawfully sent within the lines of the enemies of the United States," it is declared, in the 5th exception, to be " an adherence to said enemies," punishable with disfranchisement. Now as the registrars are required by the registry law to determine the guilt of the citizen in a case like this, many questions necessarily arise, which must be disposed of before their judgment can be properly rendered. It must be determined " where the lines of the enemy" were at the time of the alleged act. Section 4th of Article 1 does not provide that the " unlawful sending of the money, goods, letters or information" should be from within the State of Maryland to within the enemy's lines; on the contrary, such general terms are used relative to this class of acts, as well as to all others, except that contained in the 3rd exception, as to preclude the idea that it is or was necessary that any of these acts should have been committed within the jurisdiction of Maryland.

Under the registry law, the registrars are authorized to try the applicant for registration for any acts or words of disloyalty, even if committed in the State of Louisiana; now we know, historically, that the military lines of the opposing armies in the State of Louisiana, changed repeatedly. And as no provision is made in the law for, and no general practice has obtained before the registrars of, informing citizens of the nature of any charge against them, nor of the evidence brought against them, the vast range of facts to prove these extra-territorial acts must be gone over ex parte, and if the registrars are " satisfied," the brief judgment of " disqualified for disloyalty" entered in the seventh column of the " books of registration," disfranchises forever the citizen, without any information of the nature of the crime of which he has been convicted.

The respondents claim that the State, in its Constitution, has declared the qualifications of voters, excluding disloyal persons, and that the power to exclude the parties falling under the disqualifying clause in the Constitution, is...