Ijams v. Duvall

Citations

• 85 Md. 252
• 36 L.R.A. 127
• 36 A. 819
• 1897 Md. LEXIS 36

Syllabus

<p>Officers — Judge of the Orphans’ Court — Contested Election — Vacancy — Authority of the Governor to Appoint— Title of Person Returned as Elected and Commissioned — Order for New Election by House of Delegates — Constitutional Law.</p> <p>When an election of a Judge of an Orphans’ Court is contested under Constitution, Art. 4, sec. 12, and the House of Delegates declares that the person returned as elected and commissioned was not duly elected, and orders a new election, the person so returned and commissioned is entitled to hold the office until the election of a successor ; and if such election be not held there is no vacancy in the office which the Governor is authorized to fill under Constitution, Art. 4, sec. 40.</p> <p>A and B were candidates at an election for the office of Judge of the Orphans’ Court of a county. A was returned as elected, commissioned as such by the Governor, and assumed the office. B contested the election before the House of Delegates, which passed a resolution declaring that A was not duly elected and ordering a new election to be held. On account of certain legislation at that session of the Legislature the election so ordered could not be held. Subsequently the Governor appointed B Judge of the Orphans’ Court. Upon a petition for a mandamus by B to recover possession of the office from A, Held,</p> <p>ist. That under Constitution, Art. 4, sec. 40, the Governor is authorized to appoint a Judge of the Orphans’ Court only when there is a vacancy in the office ; that the resolution of the House of Delegates declaring that the person returned as elected and commissioned was not elected, did not create a vacancy, and that the vacancy which the Governor is empowered to fill is one which occurs after there has been an election.</p> <p>2nd. That A is entitled to hold the office under his commission until a successor is legally chosen, and this can only be by an election, (a).</p>