Friend v. Hamill

• Decision Date: 03 March 1871
• Citation: 34 Md. 298
• Parties: SAMUEL W. FRIEND, EBENEZER KITZMILLER and WILLIAM W. BRAY v. ARCHIBALD C. HAMILL.
• Court: Maryland Court of Appeals

34 Md. 298

SAMUEL W. FRIEND, EBENEZER KITZMILLER and WILLIAM W. BRAY v. ARCHIBALD C. HAMILL.

Court of Appeals of Maryland

March 3, 1871

APPEAL from the Circuit Court for Allegany County.

The facts of the case, together with the exceptions taken by the defendants, are sufficiently stated in the opinion of the Court.

The cause was argued before MAULSBY, MILLER, ALVEY and ROBINSON J.

George A. Pearre, for the appellants.

William Walsh and Thomas J. McKaig, for the appellee.

MILLER J., delivered the opinion of the Court.

This action was brought against the appellants, judges of election, to recover damages for refusing to allow the appellee to vote at the State election in November, 1866. The record contains a large number of exceptions, and the trial appears to have been strongly contested at every step of its progress. In this Court the cause has been argued with great earnestness and ability. We shall consider and dispose of the several questions in the order in which the record presents them.

When the case was called for trial, the defendants challenged the array of jurors for that term of the Court on two grounds:

1st. That the list of two hundred names from which these jurors were drawn, was selected and made by one and not by all of the Judges of the Circuit Court.

2d. That no such certificate as is required by law was appended to the said list of two hundred names.

First. No difficulty is encountered in disposing of the first objection. The Act of 1867, ch. 329, the first general law abolishing the old and establishing the present admirable system of selecting jurors in the counties, was passed when there was but one Judge for each of the several circuits. The amendatory Act of 1868, ch. 316, was passed after the adoption of the present Constitution, which changed the judicial system of the State by diminishing the number of circuits, and providing for each circuit a Chief Judge and two Associate Judges, the Chief Judge being made also one of the Judges of the Court of Appeals. By each law the duty of selecting and drawing jurors is devolved upon "the Judges of the Circuit Courts for each of the counties." When the Legislature of 1868 reënacted this requirement in the same language used in the preceding Act, it is clear to our minds, they did so in view of the provision in the 21st section of the 4th Article of the Constitution, that " one Judge in each of the above circuits shall constitute a quorum for the transaction of any business; and the said Judges, or any of them, may hold special terms of their Courts whenever in their discretion the business of the several counties renders such terms necessary," a power made indispensable by reason of the number of counties in many of the circuits, and the necessary absence of the Chief Judges in discharge of their more important duties in the Appellate Court. Read, as it must be, in this connection, the true construction of the law is that any one of the circuit Judges may discharge this duty, and without doubt such was the intention of the law-makers. The argument ab inconvenienti is also a conclusive answer to the opposite construction, for it would, in many cases, be impossible for the three Judges to unite in the performance of this duty in each of the counties, and for each of the numerous terms of the Courts. The entire judicial system of the State would be embarrassed in its operation, and the regular and prompt administration of justice defeated by the opposite construction.

Secondly. The law requires that when this list has been made the Judge shall append thereto a certificate "that said list of names has been duly selected in conformity with, and according to the spirit and intent of this Act." Substantial compliance with this requirement was undoubtedly essential to the lawful organization of a jury to try this cause. The certificate in the record signed by the Judge is as follows: "I hereby certify that the aforegoing list of names to serve as jurors were selected in conformity with Acts of Assembly in such case made and provided, this 14th day of November, 1868." There have been many decisions in this State as to the construction of like provisions in reference to official certificates, and the observance of forms prescribed by Statute.

In Hollingsworth vs. McDonald, 2 H. & J., 237, it was decided that a literal adherence to the form of the certificate for the acknowledgment of deeds of femes covert, was not essentially requisite, and that the omission of words deemed essential could be supplied by the substitution of others of similar import and signification. In Hall vs. Gitlings, 2 H. & J., 380, the words "legally authorized and assigned" were held equivalent to the words "duly commissioned and sworn," in a certificate required by the Act of November, 1766, chap. 14, to be given by a county clerk, as to the qualification of the justices before whom an acknowledgement of a deed conveying land in another county was made; and in the case of Beall vs. Lynn, 6 H. & J., 355, a still further departure from the language of that statute was sanctioned, the Court saying that in the former case of Hall vs. Gittings, reliance had been placed on the words "legally authorized and assigned," not because there was any magic in them, but because they import that the justices must have been commissioned and sworn, and are therefore a substantial compliance with the Act, and that any other words which necessarily import that they were commissioned and sworn, would be as substantial a compliance with the Act as ""legally authorized and assigned." In Young vs. The State, 7 G. & J., 253, several omissions in the strictly prescribed statutory formula of a sheriff's bond were held not to invalidate the instrument, and that the duties imposed by the omitted words were covered by the general language in the commencement of the condition of the bond; and in that case the Court with emphasis repeat, ""that substance and not form is to control the construction of legislative enactments prescribing a mode in which acts are to be done." These decisions were followed in the similar case of Warner vs. Hardy, 6 Md., 525. The rule of substantive compliance is too well settled by these authorities to be for a moment doubted, and it must control the decision of the question now before us. This jury law provides that the Judges shall select the names of a certain number of persons of a prescribed age, from the tax list and poll-books, within a certain time, and after notice of time and place given to the bar, and in the presence of such practicing members thereof as may choose to attend, and that they shall make the selection fairly and impartially, with special reference to the intelligence, sobriety and integrity of such persons, and without the least reference to their political opinions. A certificate, signed by the Judge, that he has discharged this duty, and made the selection """ in conformity with" the law, is a substantial compliance with that part of the statute relating to the certificate. It must be remembered this duty is imposed on Judges who act in its performance, in view of the responsibility attaching to their high official position, and under sanction of their official oaths, and the objection here does not reach to any charge of official misconduct therein, but simply to non-adherence to the letter of the statute in mere matter of form. Where a statute like this directs how the selection shall be made, a certificate stating it was made " in conformity" therewith, upon every reasonable construction of language, means that it was made "according to the spirit and intent" of the law. The two expressions are of equivalent import; the use of the latter phrase in the present certificate would impart to it no additional substance or force, and, as we have seen from the authorities cited, either may be used, or words of similar signification substituted for both. This second objection cannot therefore be sustained.

It will aid us in disposing of the exceptions, most of which are upon the admission or rcjection of testimony, if we first notice briefly the nature of the action, what must be proved to sustain it, and what is admissible in defence. The case of Bevard vs. Hoffman, et al., 18 Md., 475 has settled the law of this State, that judges of election hold an office in its nature judicial, and cannot be held legally responsible for anything more than an honest and faithful exercise of their judgments, and are not liable for the consequences of mistakes honestly made, but are liable, both civilly and criminally, for a wrong which they wilfully, fraudulently or corruptly perpetrate. This declaration, therefore, properly avers that the defendants wilfully and fraudulently and corruptly refused to allow the plaintiff to vote. These charges must be sustained by proof to the satisfaction of the jury, and as in analagous cases, where fraud is the subject of inquiry or ground of action, any fact, however slight, if at all relevant to the issue, must be admitted in evidence. Waters vs. Dashiel, 1 Md., 474. The inquiry before this jury was, whether the defendants rejected the plaintiff's vote wilfully, maliciously and corruptly, or from an honest mistake of judgment. In a case where that is the inquiry, and where the right of which the plaintiff was deprived is of acknowledged importance, indeed of almost inestimable value, the right to say who he desired should represent him in the Legislature of the State, clothed with power to pass laws affecting his life, liberty and property, every fact and circumstance not in violation of cardinal rules of evidence, should be allowed to go to the jury in proof of the fraudulent, malicious and corrupt motives by which he avers the...