Brown v. Bragunier
| Decision Date | 05 April 1894 |
| Citation | 29 A. 7,79 Md. 234 |
| Parties | BROWN, GOVERNOR, v. BRAGUNIER. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Charles county.
Action by Daniel J. Bragunier against Frank Brown, governor of the state of Maryland. From an order of the circuit court directing a writ of mandamus to compel the governor of Maryland to issue a commission of office to him, as prayed in his petition, the governor appeals. Reversed.
Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER PAGE, and BOYD, JJ.
Daniel R. Magruder, for appellant.
John H Mitchell and L. A. Wilmer, for appellee.
At the general election held on the Tuesday after the first Monday of November, 1893, among the officers voted for in Charles county was a county commissioner. Under the local law (Acts 1892, c. 569), the board of county commissioners of that county consists of three members; but the term of only one of them had then expired, and consequently but one vacancy existed to be filled at that election. Penn was the candidate of one of the political parties for the office of county commissioner, and Bragunier, the relator, was the candidate of the opposite party for the same office. The judges of the election made a return to the governor of the number of votes cast in the county, and, acting upon that return, the governor issued a commission to Penn, who thereupon qualified according to law, and duly entered upon the discharge of his duties. Thereafter Bragunier, who had also instituted proceedings in the circuit court for Charles county under article 33, § 94, of the Code, to contest the election of Penn, filed in the circuit court for Anne Arundel county a petition against the governor of the state, praying that a writ of mandamus might be granted, compelling the executive to issue a commission to the relator for the office then held by Penn under the outstanding commission previously issued to the latter. A majority of the judges of the circuit court of Anne Arundel county (Roberts, C.J., dissenting) directed the writ of mandamus to go as prayed, and from that order the governor has appealed.
The remedy by mandamus is not one which is accorded ex debito justitiae. The writ is a prerogative one; and unless the right which the relator seeks to enforce is clear and unequivocal, and the corelative duty which the respondent refuses to perform is purely ministerial, and there be no other adequate remedy at law, it will not be granted. Weber v. Zimmerman, 23 Md. 45; Hardcastle v Railroad Co., 32 Md. 32; Legg v. Mayor, etc., 42 Md. 203; Marbury v. Madison, 1 Cranch, 137. In addition to this, it is well settled--as it must be from the very nature of the proceeding itself--that the writ will never be granted when, if issued, it would be nugatory and unavailing. Tapp. Mand. 17; State v. Register, 59 Md. 283; Wells v. Commissioners, 77 Md. 125, 26 A. 357. That the governor of the state may, if he refuses to perform a ministerial function, be reached by the writ, is no longer an open question in Maryland. Magruder v. Swann, 25 Md. 173; Groome v. Gwinn, 43 Md. 572. While respect for a co-ordinate department of the state government suggests that it must be assumed the executive would promptly comply with the mandate of the courts, there would be no difficulty in finding appropriate and effective means to enforce obedience if occasion should require it. Under section 11, art. 4, of the constitution, and under the statutes made in pursuance thereof, all election returns, except those for state's attorneys and governor, are required to be certified to the governor. The method of that certification is minutely and clearly defined in the Code, and in subsequent acts of assembly amendatory thereof. To these some particular reference must now be made, as upon their provisions the pending controversy mainly turns.
By section 66 of article 33 of the Code it is provided that immediately upon the close of the polls, and as soon as the ballots have been counted, and the number for each candidate reckoned up and ascertained, the judges of election of each district shall make out under their hands, attested by the clerks of the election on the books of the polls, two plain, fair, and distinct certificates of the number of votes which shall have been then and there given for each candidate, distinguishing the office for which he has been voted. The numbers of the votes received by each candidate are required, by section 67, to be expressed in words at length, and not in figures. By section 68, as amended by the act of 1890, c. 624, the presiding judges of election in the several election districts are required to meet at the courthouse within seven days after each election, "with the books of the polls and the certificates aforesaid." The sixty-ninth section, as amended by the same act, directs these judges, when so assembled, to "cast up the whole vote of all the districts," and to "make out two plain, fair, and distinct statements and certificates of the number of votes which shall have been given for each candidate," one of which shall be delivered to the clerk of the circuit court, and the other, except in elections for governor and state's attorneys, shall be transmitted to the governor; and "from the returns so made the governor shall issue commissions to the different persons elected." Section 70 gives the form of the certificates provided for by the preceding section. Before quoting this certificate it is proper to say that as originally framed by the act of 1805, c. 97, § 15, and amended by the act of 1860, c. 10, and incorporated in the Codes of 1860 and 1888, it did not require, except in elections for sheriff, that the number of votes received by each candidate should be stated, but only directed the return judges to certify that "it appeared that _____ has the greatest number of legal votes for _____." The act of 1890, c. 624, required this certificate to be modified so as to conform to the provisions of that statute; and, as those provisions direct the certificate to state the number of votes which shall have been given for each candidate, the certificate, instead of only declaring that a particular person received the greatest number of legal votes for a designated office, must now set forth the vote of each candidate for that office. This is the only modification made by the act of 1890 in the form of the certificate. The certificate, as now modified by the act of 1890, and as required by the law to be made up and signed, and to be transmitted to the governor, after making recitals we need not allude to, set forth that the subscribers, attending judges, at the close of the election, "having this day assembled * * * with the books of the polls, on which are indorsed the several certificates agreeably to law, and having cast up the whole number of votes given in said districts according to the certificates made out on the day of election by the judges, it appears that _____ has _____ number of legal votes for _____, and that _____ has _____ number of legal votes for _____; whereupon we do determine, declare, and return that the said _____ is duly elected."
Now from these several provisions of the Code it seems to us quite obvious that the plain duty of the judges of election who assemble to make up and certify the returns from all the election districts of a county to the governor is to cast up the whole number of votes given in said districts according to the certificates made out on the day of election by the judges, and attested by the clerks, under section 66, and that the statute confers upon these return judges no power to alter, to change, or revise in any way the results disclosed by the certificates appended to the poll books. ...
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