Jump v. Spence

• Decision Date: 17 December 1867
• Citation: 28 Md. 1
• Parties: ROBERT J. JUMP, Comptroller of the Treasury, v. THOMAS A. SPENCE.
• Court: Maryland Court of Appeals

28 Md. 1

ROBERT J. JUMP, Comptroller of the Treasury, v. THOMAS A. SPENCE.

Court of Appeals of Maryland

December 17, 1867

APPEAL from the Circuit Court for Anne Arundel County.

This is an appeal from an order of the Circuit Court for Anne Arundel county granting a mandamus, requiring the appellant as Comptroller of the State to issue his warrant to the Treasurer, in favor of the appellee, for a certain sum of money claimed by him to be due for salary as Judge of the twelfth Judicial Circuit. The appellee was elected Judge of the eighth Judicial Circuit of Maryland, composed of Worcester, Somerset and Dorchester counties, in November 1855, for ten years, and was duly commissioned and qualified as such, and entered upon the discharge of his duties, and so continued to discharge them, when, on the 7th of November 1865, the election took place under the Constitution of 1864 for the twelfth Judicial Circuit, composed of the same counties. At that election, the appellee and Mr. John R Franklin, were the opposing candidates, and the latter was returned by the judges of election as duly elected to that office. He was thereupon commissioned by the Governor, and on the 29th of November, 1865, took the oath of office, and entered upon the discharge of its duties, until the 14th of February, 1866. The appellee contested the right of Mr. Franklin to said office, and the House of Delegates, the final judge on the subject, determined on the 8th of February, 1866, that the former, and not the latter, had been duly elected; thereupon the appellee was duly commissioned by the Governor, qualified on the 14th of February, 1866, and entered upon the discharge of his duties, and superseded Mr. Franklin. The General Assembly, by the Act of 1865, ch. 183, made the usual appropriation for the Judiciary of the State, including the salary for the Judge of the twelfth Circuit, and by the Act of 1866, ch. 29, it made another appropriation of $513.75 for the salary of Mr. Franklin, as Judge of this Circuit, from the date of his qualification to that of the qualification of the appellee--from the 29th of November, 1865, to the 14th of February, 1866.

On the 21st of April, 1866, the appellee filed his petition for a mandamus, requiring the appellant, to grant him a warrant on the Treasurer for the salary of Judge of this Judicial Circuit, for the period of time that Mr. Franklin had acted as such Judge. The appellant answered this petition denying the right of the appellee to a mandamus, for the following reasons:

1st. Because, as Comptroller of the State of Maryland, and by the Constitution and laws thereof, he is not subject to the control or direction of the Circuit Court in matter or manner as is set forth in the said petition.

2d. Because Mr. Franklin having been returned by the proper authorities as receiving the greatest number of votes, and declared to be elected Judge of the twelfth Judicial Circuit as above stated, and having entered upon the duties of that office on the 29th of November, 1865, and continued to discharge the same until the 14th day of February, following, when for the first time the appellee was qualified to supersede Mr. Franklin in said office, and discharge the duties thereof, the said Franklin, and he alone, was entitled to the salary of the said office during the period he held the same as above stated.

3d. Because the petitioner does not state, nor does it appear, that he was ever, before the 8th day of February, 1866, declared elected Judge of the twelfth Judicial Circuit of Maryland, or that he ever was commissioned as such Judge by the Governor of Maryland, before the 8th of February, 1866, or that he had ever, before the 14th of February, 1866, taken and subscribed the oaths or affirmations required of him by the Constitution of this State, in order to enter upon the discharge of the duties of that office; and " such qualification being an indispensable prerequisite to his investiture with the authority and responsibilities of that office," he can claim no right to the salary thereof, until after he had been declared duly elected, and been commissioned and qualified as aforesaid, which did not take place until the 14th day of February, 1866.

4th. Because Mr. Franklin was returned as having received the greatest number of votes, and declared elected to the office of Judge of the twelfth Judicial Circuit, and was commissioned and qualified to discharge the duties thereof, and having discharged the same from the 29th of November, 1865, to the 14th of February, following, and the General Assembly having appropriated money specially to pay the said Franklin for those services, which money has been duly paid to him, it would be a violation of the Constitution and laws of this State, to direct the petitioner's claim, as demanded by him, to be paid.

The Court (JUDGE MASON, acting as Special Judge,) ordered the mandamus, as prayed for.

The cause was argued before BARTOL, C.J., NELSON, GRASON and ALVEY, J.

A. Randall, (Attorney General,) for the appellant contended that the order of the Court ought to be reversed and the mandamus refused for the reasons assigned in the answer to the petition, and in support thereof referred to the following authorities:

1 st Reason. Tapping on Mandamus, 67; Ellicott vs. The Levy Court, 1 H. & J., 360; Kerr vs. The State, 3 H. & J., 560; The State, use of the Levy Court, &c. vs. Merryman, 7 H. & J., 79; Green vs. Purnell, Comptroller of the Treasury, 12 Md. Rep., 337; State, relation of McClellan, vs. Graves, et al., 19 Md. Rep., 352; Commissioners of Pub. Schools vs. The Commissioners of Allegany county, 20 Md. Rep., 461.

2 d Reason. Constitution of 1867, Art. 4, sec. 27; Art. 12, sec. 6; Art. 1, sec. 7; Art. 4, sec. 14; Code of Pub. Gen'l Laws, Art. 35, ss. 33, 34; Thomas vs. Owens, 4 Md. Rep., 220.

3 d Reason. Thomas vs. Owens, 4 Md. Rep., 220; United States vs. Le Baron, 19 Howard, 78.

4 th Reason. Constitution of 1867, Art. 4, sec. 14; Act of 1865, ch. 183; Act of 1866, ch. 29.

A. B. Hagner, for the appellee.

1st. The appellant objects to the form of the remedy invoked against him. If any point be settled in this State, the power of the Courts, to interpose in such a case as this, by mandamus, may be regarded as beyond dispute.

2d. It is objected that Mr. Franklin received the certificate of election, and was commissioned by the Governor as Circuit Judge, and continued to claim the office until the 8th of February, 1866, and is entitled to the salary.

But the House of Delegates on that day conclusively determined, that the appellee had been Circuit Judge from the day of the November election, and their resolve is an impregnable settlement of the point. That Mr. Franklin had claimed the office up to that date, and had received a commission, are matters of entire indifference, for it only shows that he was a usurper of the appellee's office under color of title.

It is settled that the appellee was entitled to the office from November, 1865, and it is admitted that he was ready and anxious from that day to perform his judicial duties. Can it be that the usurpation of an office by an intruder, even with color of title, can deprive the rightful officer of its profits and emoluments? The emoluments pertain to the rightful title, and not to that of the usurper. When Mr. Franklin received his commission, with knowledge that his election was contested, he knew that his colorable title was liable to be divested by the House of Delegates. If he, nevertheless, resolved to stand on his colorable title, he could not expect to receive the salary dedicated by law to the rightful Judge, if it should be decided that another person, and not he, was the duly elected officer. Nothing could be more impolitic, than to allow the individual who has usurped an office to receive its emoluments, during the continuance of his usurpation. It would be a deliberate encouragement to every defeated candidate to retain the office from which the people had decided to eject him. As it must be conceded that the appellee had the rightful title to the office since November, 1865, and that he was always anxious to perform its duties, and was prevented by an intruder, there is no equity that could justify the withholding of his salary, even were the law of the case less clearly in his favor. State of Maryland vs. Jarrett & Howard, 17 Md. Rep., 329.

3d. The special appropriation by the Legislature in favor of Mr. Franklin, by the Act of 1866, ch. 29, so far as it has any effect upon the question, should rather be regarded as a Legislative construction in favor of the claim of the appellee. If the Legislature had supposed, that Mr. Franklin was entitled to draw the salary which had been dedicated to the duly elected Judge, the special appropriation to Mr. Franklin would not have been made, but he would have been remitted to the appropriation of 1865 for his pay.

But the conclusion naturally arises, that knowing the appellee was entitled to the quarter's salary under the Act of 1865 and desiring to pay Mr. Franklin for the services he had rendered while holding the place of Judge, the Legislature made the special appropriation to Mr. Franklin, as the only mode in which he could be compensated. The payment to Mr. Franklin is like that made to special Judges who exercise the functions of the judicial office, although there is at the time a regular Circuit Judge, who also receives his salary at the same time. There is no constitutional inhibition upon the Legislature to pay two persons, as in this case. It was competent for them to vote Mr. Franklin as many thousands as they did hundreds. The money in the treasury belongs to the people of the State, and the people's representatives can dispose of it...