State v. Jarrett

In an information on behalf of the State, ashing an injunction to restrain a party from exercising tbs duties of the office of comptroller, the gravamen alleged was imminent hazard to the fiscal affairs of the State. This averment was distinctly and positively denied by the answer, and the whole equity being thus sworn away, it was IIei.d, that the injunction was properly refused. This court is bound to take notice of the public statute laws of the State, and if it appears by such statute laws that some of the allegations of a hill are not simply as therein slated, it is the duty of this court to interpret them so as to make them read as if set out in connection with what appears in the public statutes. Where the subject of a bill is the title to a public office, which depends upon the Constitution and laws of the State, any silence on the part of the pleader in regard to such laws, cannot be allowed to the prejudice of a party whose rights are ascertained by them. The Constitution provides that the Legislature shall make provision for all cases of contested elections of any of the officers not therein provided for, and under this provision a law was passed that “all contested elections for comptroller shall be decided by the House of Delegates.” Held ; 1st. That the decision of the House of Delegates on such a contest, must be taken as final and conclusive, no matter what may have been the reasons which induced such decision. 2nd. That the power thus given the House of Delegates is not a special or limited jurisdiction, nor are its decisions liable to the reasoning applicable to judgments of such tribunals; its jurisdiction is the only entire and absolute one in such cases, and there is no other tribunal which can review it. In case of a contested election for the office of comptroller, if the party decided by the House of Delegates to be elected, fails to qualify, by giving bond and taking the necessary oath of office, the party holding under the previous election continues in office until the due qualification of his successor. In case of the resignation of the party so holding over, the governor has the constitutional power to appoint his successor, not, however, necessarily for the full period between the appointment and the next general election, but until the party declared to he entitled to the office shall duly qualify. In construing a Constitution, it must be taken as a whole, and every part of it, as far as possible, interpreted in reference to the general and prevailing principle. In reference to the office of comptroller, it was manifestly the purpose of the framers of the Constitution to give to the people the right to select that officer, and if a vacancy occurred, to give the governor power to fill it. In case of a contested election to that office, the party decided by the House of Delegates to be elected, is placed in the same position as if he had been returned elected by the judges of election, and if, by any defect in the then law, or on the part of his administrators, he is prevented from qualifying, it is competent for the Legislature to pass an enabling Act for that purpose. ' Where the party declared elected qualifies after the resignation of the party holding over, and after an appointment by the governor, the appointment of the governor, in such ease, is ad interim only, and the appointee is subject to be divested whenever the party declared elected duly qualifies. The official bond of a party declared to be elected comptroller, was presented to the governor for approval, and was not accepted or approved by him. Afterwards the same bond was presented to, and accepted and approved by, another officer, authorized by law to accept and approve it. Held: That this made the bond valid and binding upon the sureties; it was not delivered till approved by the proper officer; a statutory bond is not delivered or binding on the obligors till it is approved. An injunction is not a matter ex debito justitias, but rests for the most part in the conscience of the court, and there is no case authorizing an injunction against one having the legal right, and but few where the right is doubtful, except in cases to stay waste, or prevent the destruction of the thing. Note by the Reporter; — It will be observed that in this case no motion w.as made to dismiss the appeal, and no question raised or argued ort either side as to the right of appeal in such a case, under Art. 5, sec. 25 o£" tibe Code, as was. done in the case of Steigcrwald vs. Winans, et al., ante.

Appeal from the Equity Side of the Circuit Court for Harford county. Informing, Thomas S. Alexander, solicitor for the State of Maryland, on this behalf appointed by the governor of Maryland, shows that Dennis Claude, of the city of Annapolis, is comptroller of the State of Maryland, having been duly appointed and commissioned by the governor, to supply a vacancy in said office, occasioned by the resignation of William H. Purnell, late comptroller, and that said Claude has bonded and taken the oaths of office prescribed by law, as by the certificate of appointment filed with this information will more certainly appear, and that from the appointment and qualification of said Claude as comptroller as aforesaid, that is to say, from the 8th day of May 1861, to the present time, the said Claude has been and now is in possession of the said office, actually occupying the chambers in the record office building, which were appropriated to the use of the comptroller, and which have ever since the completion of said building been so used, and possessing and using all the books of accounts and other documents and muniments appertaining to said office, including the seal or stamp belonging thereto, and during all the said term has been exercising the powers and duties belonging to said office until his disturbance therein, as hereinafter stated. And further informing, the said solicitor shows that the said Claude, as comptroller as aforesaid, is entrusted with the general superintendence of the fiscal affairs of the State; with the superintendence and enforcement of the collection of all taxes and revenues; with the adjustment of all public accounts; with the granting of all warrants for payment of moneys out of the treasury; and with the countersigning of all evidences of State debt, without which, it is declared by the Constitution of this State, that such evidences shall not be valid. And that it is requisite to the proper transaction of the fiscal affairs of the State, and essential to the maintenance of the public credit, that the said Claude should be protected in the exercise of the functions appropriate to his said office, untiL his term of office shall have determined by law, and until his successor, duly appointed and qualified in that behalf, shall have been inducted into said office, and entered upon the discharge of the duties thereof. But now the said solicitor further informs and shows, that on the 23rd of duty, in the year aforesaid, Sprigg Harwood, treasurer of the State, addressed to the said Claude a letter, of which a copy is herewith exhibited, and the said Claude also received from the president of the Farmers Bank of Maryland, in which bank the moneys of the State are deposited, a letter, of which a copy is also filed herewith, and that on the 29th of July, in the year aforesaid, the said Harwood, treasurer as aforesaid, refused to pay a warrant drawn by the said Claude as comptroller, on the said treasurer, in favor of one Thomas J. Wilson, for the sum of $143, money justly due and owing from the State to the said Wilson, the said Harwood alleging as excuse for the non-payment of said money, that he did not recognize the authority of said Claude as comptroller, to issue warrants on the treasury, and that one A. Lingan Jarrett, of Harford county, is the true and lawful comptroller of the State, as by the deposition of said Wilson, herewith filed, will appear, and it is prayed by said informant that said exhibits, and all others which majr be filed herewith, may'be taken as parts of this information; so that it is apparent that the said Jarrett pretends to be the comptroller of the State, and claims to exercise all the powers and authorities incident to said office, and that the said Harwood, as treasurer as aforesaid, aids and abets him in the said pretences; and that the said Harwood will disburse the moneys of the State, and will receive moneys into the treasury, on the warrants of the said Jarrett, as comptroller, and that he will not recognize the validity of any warrant which may be issued by the said Claude, as comptroller, either for payment of moneys into or out of the treasury; and thereby the fiscal interests of the State are placed in imminent hazard, since it will be impossible for any one advisedly to adjust the account of any debtor to the State, or ascertain who is creditor of the State, or to exercise the duties of comptroller, in reference to the countersigning of evidences of debt of the State, without the aid of the books of accounts and other written muniments appertaining to the office of comptroller, which are in the actual possession of the said Claude as comptroller, and which came into his possession by virtue of his appointment and qualification as comptroller as aforesaid. And the said informant further suggests and insists, that even if the said Jarrett was, of right, the comptroller of the State, (which is denied,) he ought not to be permitted to exercise the functions of said office, nor to disturb the said Claude in the exercise thereof, until the said Jarrett shall have obtained actual possession of said office, and of the books of account, and other muniments thereof, and shall be in a condition to exercise the duties thereof advisedly, and with due tegard to the safety of the interests of the Slate; and that so long as the said Claude is permitted to remain in the actual possession and enjoyment of the. said office, with its books of accounts and other muniments thereof, the said Harwood, as treasurer, ought not to be permitted to repudiate the authority of the said Claude as comptroller as aforesaid. And the said informant further informs, that the said Wilson has filed his petition on the law side of the circuit court for Anne Arundel county, praying for a writ of mandamus to the said Harwood, as treasurer, to compel him to pay to said Wilson the sum of money therein mentioned, and that thereupon a rule has been passed, requiring the said Harwood to show cause wherefore a writ of mandamus ought not to issue as prayed, as by a copy of said petition and rule, herewith filed, will appear; and the said informant further suggests, that on said proceeding issuo will be joined on the conflicting titles of said Claude and Jarrett, and that until the said question of title shall have been adjudged in said proceeding, or in some other proceeding to be instituted by the said Jarrett against the said Claude, the exercise by the said Claude of the rights and functions of said office of comptroller ought to be recognised by the said Harwood as valid acts, and done by rightful authority. To the end, therefore, that the said Harwood and Jarrett may answer the premises, and that the said Jarrett may be restrained and enjoined from exercising any of the powers attached or incident to the office of comptroller, until his title to said office shall have been adjudged valid, and he shall have been inducted into the possession of said office by due process of law, and that until the said Jarrett shall have been adjudged to be comptroller, and inducted into said office as aforesaid, the said Harwood, as treasurer, shall be restrained and enjoined from obeying the warrants or recognizing other acts done by the said Jarrett under color of his pretended title to said office, and from refusing obedience to the warrants of said Claude as comptroller, as aforesaid, and that the State may be further relieved as equity and right may require: It is prayed that a writ of injunction may bo issued to the said Jarrett and Harwood, strictly enjoining and restraining; the- said J'arrett from exercising any of the powers and duties attached or incident to the office of comptroller, until the further order of this court, and also enjoining and restraining the said Harwood from recognizing as valid or obeying any warrants or other acts done by the said Jarrett under color of title to the said office, and from refusing to obey the warrants issued and other acts done by the said Claude as comptroller,, as aforesaid, until the further order of this court, and also the writ of subpoena to the said Jarrett and Harwood, commanding them to be and appear in this court to answer the premises, and obey such decree as may be-passed thereon. This information was filed in the court below on the 14tb of August 1861, and an order was passed that the prayer for the injunction stand for hearing on a day fixed, provided a copy of the information and order be served on the defendants, and before the time limited the defendants appeared and; filed their answers. Jarrett, in his answer, says, that it is not true and he positively denies that the said Claude is comptroller, and he also denies that at the time when said informer pretends said Claude was appointed to said office by the governor, there-was any vacancy in said office; on the contrary, this respondent avers, that he is the comptroller of the State of Maryland, duly elected and qualified, and in possession of said'1 office, and in the legitimate and full exercise of the duties-thereof. That at the general election, held on the 2nd of November 1859, respondent was duly elected comptroller, and accepted said office, but the judges of election for the city of Baltimore, made false and fraudulent return, by which it falsely appeared that William H. Purnell was elected instead of respondent. That this respondent thereupon protested to the governor against his issuing a commission to said Purnell, and gave notice to said Purnell that as soon as the Legislature convened he would contest his election as-comptroller, on the ground that the election in the city of Baltimore, and the return thereof, was fraudulent and void;, and that at the session of the Legislature, next after said election, he contested the same and brought his claim to said office before the House of Delegates, which was the only tribunal authorised by the laws of Maryland to adjudicate and settle controversies of that kind, and the said House of Delegates, after a hearing of this respondent and said Purnell, and a full investigation of all the facts, determined and declared and adjudged, that tbb respondent, at the said election, was duly elected comptroller of the State, for a term of years which has not yet expired, as will appear by resolution No. 6 of said House of Delegates, passed on the 10th of March 1860, a copy of which is herewith filed as part of this answer; that respondent thereupon claimed said office, and is advised that by the judgment of said House of Delegates, he then and there became entitled to the same. That respondent thereupon went before the governor, as soon as he conveniently could, and tendered to him a bond, executed by respondent, witii ample security, in the form and penalty prescribed by law, for the faithful performance of the duties of said office, and offered to take the oath of office prescribed by the Constitution and laws of the State; that the governor then and there approved of the security in said bond as entirely sufficient, but for some reason unknown to respondent, refused to accept the same or administer to respondent the oath of office, and respondent thereupon, before and in the presence of the governor, took and subscribed the oath of office prescribed by the Constitution and laws, which was duly administered to him by a justice of the peace, duly commissioned and qualified, as will appear by certified -copies of said bond and oath herewith filed. But this respondent avers, that because the governor refused to accept said bond and administer the oath, he was unable, at that time, to obtain possession and exercise the duties of said office, although, as he avers, he then and ever since has claimed to be the comptroller, and has used due diligence to assert his right and perform the duties of the office. And respondent further says that afterwards, on the j12th of Juno 1861, the Legislature passed a law authorising any judge of the Court of Appeals to administer to him the oath of office and approve his bond as comptroller, and in pursuance of this Act, respondent, on the 9th of July 1861, took and subscribed before the Hon. James L. Bartol, one of the judges of (he Court of Appeals, the oath of office prescribed by the Constitution and laws of this State, and said judge at the same time took and approved respondent’s bond as comptroller, as will appear by a certified copy thereof, herewith filed as part of his answer, and he also herewith files, as part of his answer, a certified copy of the oath taken by him, as aforesaid, both of which were duly recorded. And respondent avers that immediately or very soon after he had given bond and taken the oath of office, as last aforesaid, he entered upon the performance of the duties of his said office, and has ever since continued in the same, and was duly recognized by the treasurer and by the Legislature of the State, and was, in fact, and still is, the only legal comptroller of the State, and that neither the said Claude nor any other person, has power or authority to issue any warrant or perform any other act or duty as comptroller. And he positively denies that his performance of the duties of said office has occasioned or will occasion, any loss, injury or hazard to the State of Maryland or to her, interests. Further answering, respondent denies that said Claude has possession of the said office of comptroller, or has bad, since this respondent took the oath of office as aforesaid, or has possession of the muniments of title. That it is true said Claude has possession of the room which was used for the accommodation of the comptroller, and of books and papers belonging to the office, but this respondent has opened a new set of books, and has procured a stamp, and has access to the accounts, (of which there are duplicates,) and has ample accommodation for the performance of his duties in the old comptroller’s office in the State House, and if any detriment should by possibility occur, by reason of said Claude’s wrongful detention of said books and papers, this respondent denies that he is in any manner responsible. Further answering-, this respondent says, that he has understood that said Claude, pretending to act as comptroller, lias drawn a warrant on said Harwood as treasurer, for the payment, of a sum of money as stated in said information, but he lias no personal knowledge of ¡ho fact; and ho has been informed that said Wilson filed hid petition for a writ of mandamus, as staled, which case is still pending. And this respondent is advised that said Claude’s pretended claim to said office, which is now held by this respondent, is a case proper to be tried in a court, of law, where there is a full, complete and speedy remedy for all tire pretended grievances set forth in said information. And he denies that this court has any jurisdiction to try said Claude’s right to said office, or to restrain either this respondent or said Harwood in the performance of the duties pertaining to their respective offices, or to compel them to recognize the pretended claim of said Claude whereby would ensue great, confusion and interruption in the public business, and loss and injury to the State. And having thus answered said information as fully as he is advised it is material, lie prays that the same may be dismissed, and that the injunction prayed for may be refused, and if it should be granted that the same may be dissolved. Harwood, in his answer, says, that but for the respect which is due by him to this court, he would not have deemed it necessary for him to take any notice of said information, for the reason, apparent to the court, that individually and officially he has no interest in the controversy whether Claude or Jarrett is legally comptroller, inaugurated by this proceeding. In the earliest stages of the controversy in relation to this matter between Jarrett and Purnell, this respondent declined to take any step by which the rights of one would be preferred over the other, and left the parties to have their respective rights legally decided, being advised that it was his duty, ad interim, to recognize the authority of Purnell. But this respondent further states that since the Act of the 25th of June 1861, entitled, “An Act to enable A. Lingan Jarrett, comptroller of Maryland, to enter into bond and qualify,” and the Act of August 1861, herewith filed as part of his answer, he has been advised that it is his duty to obey the plain action of the Legislature in reference to this subject, and he has, in accordance with said action of the Legislature, recognized the claims of Jarrett to said office. In fact this respondent has no interest in the matter in controversy, in so far as it is confined to the question, whether one or the other of these gentlemen is legally entitled to exercise the functions of said office; but he has a deep interest in the question raised by that part of the information which asks an injunction restraining this respondent from refusing to obey the warrants issued, and other acts done by the said Claude as comptroller, inasmuch as he would not feel himself at liberty to obey any order which might gratify the prayer of the informant in that particular. Further, this respondent is advised and avers that said Claude is not legally the comptroller, and has not been elected or appointed comptroller in accordance with the Constitution or laws of Maryland, and that Jarrett is the comptroller; that he was elected comptroller at the general election held on the 2nd of November 1859, and has given bond and has qualified in accordance with the Constitution and laws of the State, and is now in the actual discharge of the duties of said office. This respondent further shows that a petition for a mandamus has been filed in the circuit court for Anne Arundel county, in the name of Thomas J. Wilson, to compel respondent, as treasurer, to pay a warrant in favor of said Wilson, drawn by said Claude, as comptroller, and thereby to recognize the title of said Claude as comptroller, which petition, with the answer of respondent thereto, and the exhibits, are herewith filed, and he prays that they may be taken as parts of this, his answer. Wherefore this respondent submits to the court that the prayer of the informant ought not to be granted, and if the injunction should be granted, he prays that the same may be dissolved. The purport of most of the exhibits filed with this information and the answers, are sufficiently stated therein. The Resolution No. 6, of the House of Delegates, passed on the 10th of March 1860, is as follows: “Resolution declaring the election held in the city of Baltimore, on the 2nd of November last, void, and declaring A. Lingan Jarrett elected comptroller of the State. “Resolved by the House of Delegates of Maryland, That it appears to this Mouse that there was such tumult, riot, intimidation, fraud and injustice at the election held in the city of Baltimore on the 2nd of November last, in contempt of law, and in violation of the freedom of elections, that the said election, so far as said city is concerned, is void, and that A. Lingan Jarrett, having received a majority of two thousand four hundred and ninety-two of the legal votes cast in the State of Maryland, on the said 2nd of November, for the office of comptroller of the treasury of the State of Maryland, be and he is hereby declared elected to said office.” The Act passed at the extra session of the Legislature, outlie 21st of June 1861, in reference to the qualification of Jarrett, is as follows: “An Act to enable A. Lingan Jarrett, comptroller of Maryland, to enter into bond and qualify. “Whereas the said A. Lingan Jarrett was duly elected comptroller, as ascertained and decided by the House of Delegates, on the tenth day of March, in the year eighteen hundred and sixty, and the governor of the State has refused to recognize said election, and to receive the bond of said A.. Lingan Jarrett, as such comptroller, and to administer to him the oath of office: Therefore, “Section 1. Be it enacted by the General Assembly of Maryland, That any one of the judges of the Court of Appeals be and he is hereby authorized to take and approve the bond of the said Jarrett, and to receive the declaration and administer the oath required by the Constitution and laws, and that said Jarrett be authorized to make the declarations and take the oaths before any one of said judges, and the said bond, when so taken and approved, and the declarations and oaths so made, shall be recorded in the office of the clerk of the Court of Appeals, and have the same effect as if done in the manner and mode now prescribed by law. “Section 2. Be it enacted, That this Act shall take effect from the date of its passage.” The bond of Jarrett, which was taken and approved on the 9th of July 1861, by James L. Bartol, one of the judges of the Court of Appeals, and ordered by him to be recorded, is dated the 14th of March 1860, and is the same bond which had been previously presented by Jarrett to the governor for his approval, and on which the following endorsements appear, the last of them being written in pencil: “Comptroller. A. L. Jarrett vs. W. H. Purnell. Contest, Papers marked exhibits A. & B. — Resolution and bond, filed March 16th, 1860.” “March 2Sth, 1860. Having thoroughly investigated this-case, I decline to receive and approve bond, and this day return same to A. L. Jarrett, Esqr.” (Signed,) “Thos. PL Hicks." “This bond is, so far as the responsibility of parties thereto subscribing, entirely sufficient in my opinion” (Signed,) “T. H. H." The Act of the extra sessison, passed on the 5th of August 1861, and referred to inland filed, as an exhibit, with the answer of Harwood, enacts: “That A. L. Jarrett, the comptroller of this State,, draw his warrant upon the treasurer of this State, and that the treasurer draw his check upon the-said warrant in favor” of a certain named party, for a certain, sum therein specified. The court, (Price, J.,) upon information, answers, and exhibits, refused the injunction prayed for,, and from this order of refusal the informant appealed.