CONGKESS, UNITED STATES (ELECTOKAL COMMISSION). 



193 



nished, it cannot be discharged. There the Gov- 

 ernor had, by the State constitution, the power 

 to determine a contest for the elective office 

 of Attorney-General of the State of Mary- 

 land. The Governor, finding by his own in- 

 spection of the constitution that he lacked 

 the means of carrying out the scrutiny that 

 must decide, held that he could not exercise 

 it, and he would not exercise it unless com- 

 pelled by judicial authority. The Court of 

 Appeals, on an application for a mandamus to 

 compel the Governor to give the certificate to 

 the candidate appearing to be elected by the 

 canvass, held that he was vested by the con- 

 stitution with an authority to decide the con- 

 test, but that the laws of Maryland had not ex- 

 ecuted the constitution by furnishing him with 

 powers to perform the duty assigned to him, 

 and that the mandamus must go against him 

 to compel him to deliver the certificate to the 

 candidate that, on the fraudulent election, was 

 returned as having the plurality of votes. Thus 

 the preliminary contest before the Governor, 

 that might have been effectual to redress the 

 frauds of the election, was defeated for want of 

 necessary legislation. The contest could only 

 be had under the judicial powers of the State 

 lodged in the courts, and in the shape of quo 

 warranto on a suit against the inducted candi- 

 date that the Governor might or would have 

 decided not to be entitled to take the office. 



"I. find in this act of 1877 no such purpose 

 in the arrangement of this commission or its 

 endowment with powers as to make it a court 

 under the Constitution. I find no appointment 

 of these judges to this court under the powers 

 of the Constitution. I find no means provided 

 for writs and their enforcement, nor for the 

 methods of trial that must belong to a discus- 

 sion on a quo warranto. Now, I understand 

 that the proponents of this proof lay out as 

 the nature and the limits of your inquiries of 

 your duties and your powers, that of judicial 

 investigation upon quo warranto. Mr. Eepre- 

 sentative Field assigned to you what he de- 

 scribed as ' powers at least as great as those of 

 a court on quo warranto,' and of course in that 

 nature. Mr. Merrick claimed the same. Judge 

 Black did not in terms, yet, in assigning the 

 nature and the searching character of the trans- 

 action that you are to enter upon, gave it that 

 character and implied that demand. The brief 

 handed in by Mr. Green, in the praise of which 

 I am happy to join with his learned associates, 

 makes the claim distinctly that you are not ad- 

 equate as a revising canvassing board, but you 

 must have the powers of a court on quo war- 

 ranto. And why this claim, if anything less 

 magnificent and anything less intolerable could 

 have been found of sufficient area for your ac- 

 tion as desired ? It is because, in the methods 

 and machinery of elections, as they insist, the 

 iteps are onward, from one canvass to the next ; 

 and if you are made only a superior canvassing 

 board, to determine whether Governor Stearns's 

 certificate that these electors were appointed 

 VOL. XVH. 13 A 



is valid, and you are nothing but a returning 

 board surmounting the final returning board 

 to see whether their returns justified that cer- 

 tificate, then, at once, you must find that it 

 does ; that the de facto title and possession is 

 complete, and that nothing but a jurisdiction 

 that concedes the de facto title and possession 

 can begin can find the case for beginning the 

 consideration of the question of right. This 

 quo warranto suit in the Florida court, if it be- 

 comes a subject of evidence, declares absolute- 

 ly, on the petition of the Tilden electors, that 

 the Hayes electors are in possession of the fac- 

 ulty, the office, or whatever it may be, and are 

 exercising it, and they ask that an inquiry 

 may then proceed in due course of law, to in- 

 quire whether that possession and that exercise, 

 as matter of right, between them and the Hayes 

 electors, are or are not according to law and 

 truth. 



" And the commission will be good enough 

 to look at an act, not reprinted in the little 

 collection of the acts so usefully laid before us, 

 of February 2, 1872, in the laws of Florida, in 

 relation to the proceeding upon writs of quo 

 warranto. The general statute of procedure 

 excludes any possible writ of quo warranto ex- 

 cept by the State through the action of the At- 

 torney-General ; and this quo warranto suit be- 

 gins by evidence that the Attorney-General re- 

 fused to bring the writ for the State, and that 

 led to an inquiry how it happened that it was 

 brought at all, and to the discovery of this law 

 of 1872, providing that, when the Attorney- 

 General refuses, then claimants may make 

 themselves relators, and use the name of the 

 State ; but in such cases the suit is a mere pri- 

 vate suit, that is good between the parties but 

 does not affect the State. It is in terms so 

 provided, and it is provided that the judgment 

 shall not be a bar to a subsequent suit by the 

 Attorney-General in the public right. So much 

 to explain that situation. 



" There is but one other point that I wish to 

 call to the attention of the commission in the 

 legislation of Florida, for I can spend no time 

 to rehearse the statutes. On page 53 of the 

 pamphlet that has been printed for the use of 

 the commission there are found sections 31 

 and 32. One is a provision that 



The Secretary of State shall make and transmit to 

 each person chosen to any State office immediately 

 after the canvas 



" Showing that the canvass as completed is 

 the basis of the State's authentication of the 

 right of every State officer 

 a certificate showing the number of votes cast for 

 each person, which certificate shall be prima facie 

 evidence of his election to such office. 



" That gives him the office. Subsequent in- 

 quiry is as to the final right. Then section 32: 



When any person shall be elected to the office of 

 elector of President and Vice-President. or Repre- 

 sentative in Congress, the Governor shall make out, 

 sign, and cause to be sealed with the seal of the State, 

 and transmit to such person, a certificate of bis elec- 

 tion. 



