Groome v. Gwinn

• Decision Date: 21 December 1875
• Citation: 43 Md. 572
• Parties: JAMES BLACK GROOME, GOVERNOR of MARYLAND v. CHARLES J. M. GWINN.
• Court: Maryland Court of Appeals

43 Md. 572

JAMES BLACK GROOME, GOVERNOR of MARYLAND v. CHARLES J. M. GWINN.

Court of Appeals of Maryland

December 21, 1875

March 1, 1876.

APPEAL from the Circuit Court for Anne Arundel County.

At a general election held on the 2nd of November, 1875, Messrs S. Teackle Wallis and Charles J. M. Gwinn, were candidates for the office of Attorney General of the State. The returns of the election, as certified to the Governor by the proper officers, showed that Mr. Gwinn had received a majority of all the votes cast for Attorney General. On the 16th of November, Mr. Wallis addressed a communication to the Governor, notifying him of his intention to contest the election of Mr. Gwinn as Attorney General of the State at the election held on the 2nd instant, on the ground that the election in the city of Baltimore, was rendered wholly void by fraud, intimidation and violence, and that the returns of the city could not lawfully be counted. To this communication, the Governor replied, signifying that he would be pleased to receive from Messrs. Wallis and Gwinn, or their respective attorneys, written arguments as to his authority to entertain the contest proposed, and as to the extent of his powers in regard thereto. In response to this request written arguments were furnished by Messrs. Wallis and Gwinn to the Governor; and further oral arguments were heard by him in their behalf. On the 6th of December, 1875, the Governor announced his decision as follows, upon the the questions argued before him:

"The election for Attorney General of this State being certified, and returns thereof made to me as Governor by the Clerks of the Circuit Courts of the several counties and the Clerk of the Superior Court of Baltimore city, as provided by the Constitution and laws of this State; and said returns, as certified, having been canvassed by me, I do hereby, in pursuance of the Constitution and upon the basis of said returns, decide, that according thereto, the Hon. Charles J. M. Gwinn received a majority of all the votes of the qualified voters of this State cast at said election, and that he was therefore--that is, according to said returns--elected Attorney General of this State at said election. I also further decide, that the Hon. Chas J. M. Gwinn is duly qualified for and eligible to said office, under the Constitution of this State, and was so on the day of said election. I also further state, as a part of this decision, and to be taken in connection therewith, that the same as to the fact of election is made exclusively upon the basis of said returns certified, and without any inquiry upon any alleged facts outside of the same.

I also state, that whether or not the Governor has power to take evidence dehors the returns, and decide the election of the Attorney General thereon, or upon anything except the returns, is a question of construction of section 2 of Article 5 of the Constitution, which is so close and serious, that, in my opinion, it should be settled by the Courts; and, therefore, and inasmuch as there appears sufficient reason to induce a hearing outside of the returns, if the Governor have power under the Constitution, I shall, for the present, withhold any commission to Mr. Gwinn, and do hereby declare my intention to proceed with the hearing and examination of the question involved in the contest by evidence extraneous to the returns, unless restrained by the Courts, or unless ordered by a mandamus to issue a commission to Mr. Gwinn--the object of this action being to enable Mr. Gwinn to apply to the Courts for a mandamus for a commission, or for such relief as he is entitled to.

If the Courts should decide that the Governor is bound to issue the commission in favor of the person whom the returns alone show to be elected, and whom the Governor decides possesses, and did possess on the day of said election, all the constitutional qualifications, that will end the matter, and make the issuing of the commission a mere ministerial duty or form. If the Courts conclude otherwise, or Mr. Gwinn fails to act as soon as possible, the investigation will be further proceeded with. This course protects Mr. Wallis in any rights he may have, and enables Mr. Gwinn speedily to bring the question before the Courts, and obtain his commission, if entitled to it in the opinion of the Courts, on the basis of the returns alone.

After a careful review of the question of construction involved, I am deeply impressed with its difficulty and importance, and it is my clear duty to put the controversy in such shape, that the rights of each will be protected, and the Courts be entitled to decide it authoritatively. An important constitutional question like this, involving the power of the Executive, should be determined by the Judicial branch of the government."

Mr. Gwinn, thereupon, on the 9th of December, filed his petition to the Judges of the Circuit Court for Anne Arundel County, for a mandamus.

The petition averred that the Governor, having canvassed the returns officially made to him, had decided that the petitioner received a majority of the votes of the qualified voters of the State, and, according to said returns, was elected Attorney General. It averred that the Governor had further decided, that the petitioner was eligible to said office, and qualified for the same under the Constitution. By virtue of these two decisions, the petition charged that the petitioner became ipso facto, entitled to receive his commission, and have the official oath administered to him, and that it became the duty of the Governor, forthwith, to issue the one and administer the other. The petition then averred the refusal of the Governor to discharge his alleged duty, and prayed that the writ of mandamus might be granted, compelling him to issue the commission and administer the oath accordingly.

The answer of the Governor admitted that he had decided the petitioner to be eligible, and duly qualified under the Constitution. It further admitted that, upon the face of the returns, the petitioner appeared to have received a majority of the qualified votes of the State, and that the Governor had decided, that according to the returns, he was elected Attorney General, and was entitled to be commissioned and sworn in, if the Governor had no constitutional power to go behind the returns, upon which, only and exclusively, his decision, thus far, had been based. But the answer went on to aver the contest on the part of Mr. Wallis, before the making of the decisions aforesaid; his denial of Mr. Gwinn's election; his impeachment of the truth of the returns, and his claim that he himself was duly elected. The answer set forth the grounds on which Mr. Wallis relied, and then averred the Governor's belief that in his judgment, as Governor, there was sufficient reason for going behind the returns, and examining into the charges and claims of Mr. Wallis, if the Governor had the constitutional right so to do, which he accordingly claimed, subject to the Court's opinion. Should the Court hold that he had a right to go behind and outside of the returns, and examine into the questions presented to him by the contest of Mr. Wallis, the Governor respectfully asked that the Court would advise him as to the means and mode of doing so.

By agreement of counsel, all informalities in the pleadings were waived. Upon the assent and agreement of parties, a pro forma order was passed by the Court, directing the writ of mandamus to issue as prayed. From this order, the Governor appealed.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ROBINSON, J.

A. B. Hagner, for the appellant, and Robert D. Morrison, intervening for Mr. Wallis, who filed a brief.

The contestant, Mr. Wallis, has received an undisputed majority of the votes cast in the State, outside the City of Baltimore, for the office of Attorney General. He avers and claims, that the election held in that City was rendered wholly void by fraud, intimidation and violence, so gross as to be notorious and universally conceded, and he therefore insists that the City vote, as officially returned, cannot lawfully be counted. He has accordingly appealed to the Governor, to hear evidence in support of his contention which he avers his readiness and ability to maintain by proof. The returned candidate, Mr. Gwinn, does not pretend to deny the fraud, the intimidation or the violence charged, nor does he dispute the ability of the contestant to prove them. He contents himself with saying in general language in his brief, that "he believes that he was, in fact, elected to the office of Attorney General, by a large majority of the people of the State." The Governor officially declares, that "according to the returns" Mr. Gwinn has been elected, but that in his (the Governor's) opinion, there is ground for going behind the returns, and that he will proceed to do so and hear evidence, if he is authorized thereto by the Constitution. Mr. Gwinn does not deny that there is reason for going behind the returns, but insists that the Governor is bound by the face of the returns to give him his commission and has no power now, or at any other time, to enquire or determine whether the returns are true or false, or whether the election in the City was void or valid. He claims this to be the law, even if the election was in fact a nullity, and if the vote set forth in the returns from the City was demonstrably fraudulent and illegal as alleged. It is admitted, that if the Governor cannot entertain the proposed contest no one else can, and the proposition of the returned candidate therefore nakedly is, that the highest law officer of the State may be returned as elected, by gross and conceded fraud and violence, and that, under the...