MARYLAND. 



505 



of gentlemen, representing, as I understood, those 

 opposed to the adoption of the new Constitution, that 

 before issuim: any proclamation, as required by its 

 terms, I would allow counsel to inspect the returns 

 of the soldiers' vote provided for by that instru- 

 ment, and submit to me such objections thereto as 

 they thought could be made. Although the proposi- 

 tion was a novel one, and I believe no other instance 

 - in which election returns, filed as they are, 

 annually or biennially in this department, have ever 

 been subjected to a legal scrutiny as a preliminary to 

 executive action, I did not feel" at liberty to refuse 

 the request, and at once agreed that counsel should 

 have full access to these returns, stipulating only 

 that, as according to the view I took of the case, 

 there were no facts about which I could inquire ex- 

 cept such as were suggested on the face of the re- 

 turns, that all objections or discussion should be 

 limited accordingly, and that the friends of the Con- 

 stitution should be advised of the proceeding and al- 

 lowed the opportunity of answering these objections, 

 as well as making any other to the home vote that 

 might occur to them. 



The past two or three days have been devoted to 

 this examination, and a great number of exceptions 

 have been taken to these returns, and argued with 

 the ability that distinguishes the learned counsel who 

 conducted the examination. He had been already 

 apprised that my previous examination of that sub- 

 ject had brought my mind to the conclusion, several 

 times expressed, that so far as my action was con- 

 cerned, I was bound by the provisions of the Consti- 

 tution which the Convention had adopted; and whilst 

 we differed widely as to its authority, he very cour- 

 teously waived all discussion upon that subject, and 

 confined his argument to exceptions taken to the 

 sufficiency of correctness of the military returns, and 

 those I now propose to consider. 



He then proceeds to state the objections to 

 the soldiers' vote, and to reply at much length, 

 and concludes, that " the entire vote authorized 

 by the Constitution having been thus accu- 

 rately ascertained, it becomes my duty, in obe- 

 dience to its mandate, to proclaim the result and 

 its adoption." 



A case -was also brought before the Court of 

 Appeals to obtain an exposition of the rule of 

 law which ought to guide the discretion of the 

 Governor in his ascertainment of the result of 

 the election had for the adoption or rejection 

 of the new Constitution. Justice Bowie an- 

 nounced the conclusions arrived at by the Court, 

 as follows : 



The relator's prayer substantially is, that the Gov- 

 ernor of Maryland show cause " why a writ of man- 

 damus ought not to be issued, commanding him, in 

 ascertaining the number of votes cast at the said late 

 election held as aforesaid," to count certain votes 

 which were tendered and rejected, and to exclude 

 certain votes which shall appear to have been cast 

 at any other place than the election precinct at which 

 ' the person voting was qualified to vote. 



From this brief analysis it appears the proceeding 

 is one of the most momentous consequence, and 

 should be treated with the greatest deliberation. 

 Our first duty is to inquire whether it is a proper 

 subject for judicial interpretation and interposition. 



By our organic law, the powers of government are 

 distributed into legislative, executive, and judicial. 

 We are admonished by the Declaration of Rights that 

 these powers " ought to be forever separate and dis- 

 tinct from each other, and no person exercising the 

 functions of one of said departments shall assume or 

 discharge the duties of any other." 



The second article of the Constitution is, "the 

 executive power of the State shall be vested in a 



Governor." " He shall take care that the laws be 

 faithfully executed." 



The sixth section of the Convention law required 

 the Constitution and form of government adopted bv 

 the Convention to be submitted to the legal and 

 qualified voters of the State for their adoption or 

 rejection, at such time, in such manner, and subject 

 to such rules and regulations as said Convention may 

 prescribe; and the provisions therein before con- 

 tained, for the qualification of voters and the holdi;:-.' 

 of elections, provided in the previous sections of this 

 act, were made applicable to the election to be held 

 under that section. 



The eighth section further enacts that when the 

 Governor shall receive the returns of the number of 

 ballots cast in this State for the adoption or rejection 

 of the Constitution submitted by the Convention to 

 the people, if, upon counting and casting up the re- 

 turns as made to him, as hereinbefore prescribed, it 

 shall appear that a majority of the legal votes cast at 

 said election are in favor of the adoption of the said 

 Constitution, he shall issue his proclamation to the 

 people of the State, declaring the fact, and he shall 

 take such steps as shall be required by the said Con- 

 stitution to carry the same into full operation and to 

 supersede the old Constitution of this State. 



Is the power and authority conferred on the Gov- 

 ernor by this act a political or judicial power'? 



A late eminent jurist, whose recent death has been 

 lamented as a national calamity, in the case of Luther 

 vs. Borders, et al. (7 Howard, 39), expressed himself 

 thus strongly: "Certainly the question which the 

 plaintiff proposed to raise by the testimony he offered 

 has not heretofore been recognized as a judicial one 

 in any of the State courts. In forming the constitu- 

 tions of the different States, after the Declaration of 

 Independence, and in the various changes and altera- 

 tions which have since been made, the political 

 department has always determined whether the pro- 

 posed Constitution or amendment was ratified or not 

 by the people of the State, and the judicial power 

 has followed its decision." 



Courts of law will not interfere with the exercise 

 of high discretionary powers vested in the Chief 

 Magistrate of the State, for obvious political reasons. 

 Among others, "because, as Governor of the State, 

 deriving his powers from the Constitution thereof, 

 he has been made a coordinate, separate, distinct, 

 and independent department of the Government." 



In the case of Low vs. Towns, Governor of Georgia, 

 the Supreme Court of that State said : " The ulti- 

 mate effect of this remedy (mandamus), in case of 

 refusal by the Governor to obey the laws of the land, 

 would be to deprive the people of the State of the 

 head of one of the departments of the Government." 

 (8 Geo., 372.) 



Chief Justice Marshall, in the case of Marbury & 

 Madison (1 Cranch), says that " the President is in- 

 vested with certain important political powers in the 

 exercise of which he is to use his own discretion, 

 and is accountable only to his country in his political 

 character, and to his own conscience." 



The Chief Magistrate or Governor of the State 

 bears the same relation to the State that the Presi- 

 dent does to the United States, and in the discharge 

 of his political duties is entitled to the same immu- 

 nities, privileges, and exemptions vide Hawkins vg. 

 the Governor, (1 Ark. Rep., 586.) 



Independently of all political considerations, if the 

 question was a purely judicial one, this Court could 

 not, consistently with decisions in other States and 

 in our own, grant the prayer of the relator. 



The general principle laid down in all these, almost 

 without exception, is, that where the act to be done 

 requires the exercise of judgment and discretion in 

 the officer against whom the mandamus is prayed, it 

 will be refused. (Vide cases collected 12 Md., Pur- 

 nell vs. Green, 336 ; 17 Howard, 230.) The result of 

 these decisions is, that the duty and pow er to decide 

 the questions which we are asked to determine are 



