Bartol, 0. J.,
delivered the opinion of the Court.
It appears from the record that the appellant, in November, 1867, was duly elected and qualified as Clerk of the Circuit Court for Prince George’s County, and has ever since held the office under Art. 4, sec. 25, of the Constitution, which entitles him to hold the same lffor six years from the time of his election, and until his successor is elected and qualified.” At the late general election held on the fourth day of November last, he was a candidate for ^-election to the same office, and the appellee was also a candidate; the election returns were duly made and transmitted to the Governor, from which it appeared that the appellee received a plurality of the votes cast by the qualified voters of the county, and was returned as having been duly elected to the office. [399]*399Whereupon the Governor issued a commission to the appellee and on the 20th day of the same month, he gave bond as required by law, which was duly approved and recorded, and having paid the legal tax on his commission, and taken the oath of office before the appellant demanded of him the possession of the office, and being refused, applied for a writ of mandamus to compel the appellant to surrender to him the possession of the office. Iiis petition was filed, and a rule to show cause thereon, being served on the appellant, he filed an answer thereto, setting forth the defences on which he intended to rely in resisting the application ; to this answer the appellee demurred, and the case was submitted to the Court below, and comes before us upon the petition, answer and demurrer. It appears that at the time of transmitting the election returns to the Governor, the appellant accompanied them with a notice of his intention to contest the election of the appellee, assigning the grounds and reasons of contest, and requested the Governor to send the returns to the House of Delegates, by which alone such contest must be finally decided, under Art. 4, sec. 12, of the Constitution. The main question raised by the answer and presented by this appeal, is whether the Governor had the power to issue the Commission to the appellee before such contest has been decided by the House of Delegates? or in other words, the question is, who is entitled to the office pending the contest?
Before considering that question, however, it is proper to dispose of some preliminary questions, which have been argued at the bar arising upon the pleadings.
It has been contended that the petition is insufficient; that it fails to show on its face that the appellee is entitled to the office; because it is not accompanied with vouchers or proofs in support of its allegations.
The Code, Art. 59, which regulates proceedings of this kind, directs that “ the petition shall be verified by affidavit, [400]*400and set forth fully the grounds of the application.” The petition in this case fully complies with this requirement; it is true that no prima facie proof is filed therewith, the commission is not exhibited, nor a copy of the official bond or any certificate that the same had been duly approved, or that the oath of office had been taken by the appellee; but no objection was taken below on account of the absence of such exhibits. The effect of the answer was to waive such objections. The petition distinctly alleges, that the appellee was duly commissioned by the Governor, that his official bond was approved by the Judges of the Circuit Court, that it was handed to the appellant, the then Clerk, and by him received and recorded ; and that the oath of office was thereupon administered to the petitioner according to law by the appellant. These averments are not denied by the answer; but are distinctly therein admitted. It was unnecessary therefore to adduce proof in their support.
The answer avers that the petitioner was not legally elected to the office;, but that the respondent actually received a plurality of the votes cast by the qualified voters of the County, and alleges that a number, to wit: not less than thirty fraudulent and illegal votes were cast for the petitioner ; and that <cthe said Widdicombe was not legally elected, owing to the aforesaid fraudulent votes cast for him.”
In the argument of the case, it was earnestly insisted on the part of the appellant, that the effect of the demurrer was to admit the facts thus stated in the answer; and consequently that the appellee is in the attitude of claiming an office, to which he admits by his pleading he was not legally elected. Such is not the legal effect of the demurrer. It is well settled that a demurrer regularly admits no other facts than those which are well pleaded ; if facts are pleaded which are insufficient in substance or immaterial, they are not admitted by the [401]*401demurrer to be true ; its office is to assert a legal proposition, that the pleading demurred to is insufficient in law, to maintain the case shown by the adverse party.” Gould on Plead., ch. 9, secs. 2, 3, 4 and 5.
The averment in the answer is substantially that there were fraudulent votes cast for the appellee, and for that reason he was not legally elected ; but that is a question which the Court has no jurisdiction or authority to decide; the averment therefore raises what in this case is an immaterial issue, and “when a plea makes an immaterial issue it is demurrable,” as decided in Law vs. Scott, 5 H. & J., 438; Neale vs Clautice, 7 H. & J., 372.
Upon the return of the judges of election certified to the Governor by the Clerk of the Circuit Court, showing that the appellee had been elected, it is very clear that the Governor had the authority to issue to him the commission under the 11th and 12th sections, Art. 4 of the Constitution.
In Magruder vs. Swann, 25 Md., 173, which arose under the Constitution of 1864, containing the same provisions, it was held that the duty imposed upon the Governor in such cases is merely ministerial, and its performance might be enforced by mandamus.
It has been argued that it was the duty of the Governor to withhold the commission, upon receiving notice from the appellant, of his intention to contest the election before the House of Delegates.' But there is nothing in the sections of the Constitution to which we have referred that supports this view. On the contrary, the 11th section expressly declares that the election returns shall be certified to the Governor, “who shall issue commissions to the different persons for the offices, to which they shall have been, respectively, elected; and in all such elections, the person having the greatest number of votes, shall be dec'ared, to be elected.”
[402]*402The 12th section directs “ that in case of any contested election, the Governor shall send the returns to the House of Delegates, which shall judge of the election and qualification of the candidates at such election.” But this cannot be construed as depriving the Governor of the power to issue the commission to the person returned as elected ; and to whom by the previous section it is made the duty of the Governor to issue the commission.
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Bartol, 0. J.,
delivered the opinion of the Court.
It appears from the record that the appellant, in November, 1867, was duly elected and qualified as Clerk of the Circuit Court for Prince George’s County, and has ever since held the office under Art. 4, sec. 25, of the Constitution, which entitles him to hold the same lffor six years from the time of his election, and until his successor is elected and qualified.” At the late general election held on the fourth day of November last, he was a candidate for ^-election to the same office, and the appellee was also a candidate; the election returns were duly made and transmitted to the Governor, from which it appeared that the appellee received a plurality of the votes cast by the qualified voters of the county, and was returned as having been duly elected to the office. [399]*399Whereupon the Governor issued a commission to the appellee and on the 20th day of the same month, he gave bond as required by law, which was duly approved and recorded, and having paid the legal tax on his commission, and taken the oath of office before the appellant demanded of him the possession of the office, and being refused, applied for a writ of mandamus to compel the appellant to surrender to him the possession of the office. Iiis petition was filed, and a rule to show cause thereon, being served on the appellant, he filed an answer thereto, setting forth the defences on which he intended to rely in resisting the application ; to this answer the appellee demurred, and the case was submitted to the Court below, and comes before us upon the petition, answer and demurrer. It appears that at the time of transmitting the election returns to the Governor, the appellant accompanied them with a notice of his intention to contest the election of the appellee, assigning the grounds and reasons of contest, and requested the Governor to send the returns to the House of Delegates, by which alone such contest must be finally decided, under Art. 4, sec. 12, of the Constitution. The main question raised by the answer and presented by this appeal, is whether the Governor had the power to issue the Commission to the appellee before such contest has been decided by the House of Delegates? or in other words, the question is, who is entitled to the office pending the contest?
Before considering that question, however, it is proper to dispose of some preliminary questions, which have been argued at the bar arising upon the pleadings.
It has been contended that the petition is insufficient; that it fails to show on its face that the appellee is entitled to the office; because it is not accompanied with vouchers or proofs in support of its allegations.
The Code, Art. 59, which regulates proceedings of this kind, directs that “ the petition shall be verified by affidavit, [400]*400and set forth fully the grounds of the application.” The petition in this case fully complies with this requirement; it is true that no prima facie proof is filed therewith, the commission is not exhibited, nor a copy of the official bond or any certificate that the same had been duly approved, or that the oath of office had been taken by the appellee; but no objection was taken below on account of the absence of such exhibits. The effect of the answer was to waive such objections. The petition distinctly alleges, that the appellee was duly commissioned by the Governor, that his official bond was approved by the Judges of the Circuit Court, that it was handed to the appellant, the then Clerk, and by him received and recorded ; and that the oath of office was thereupon administered to the petitioner according to law by the appellant. These averments are not denied by the answer; but are distinctly therein admitted. It was unnecessary therefore to adduce proof in their support.
The answer avers that the petitioner was not legally elected to the office;, but that the respondent actually received a plurality of the votes cast by the qualified voters of the County, and alleges that a number, to wit: not less than thirty fraudulent and illegal votes were cast for the petitioner ; and that <cthe said Widdicombe was not legally elected, owing to the aforesaid fraudulent votes cast for him.”
In the argument of the case, it was earnestly insisted on the part of the appellant, that the effect of the demurrer was to admit the facts thus stated in the answer; and consequently that the appellee is in the attitude of claiming an office, to which he admits by his pleading he was not legally elected. Such is not the legal effect of the demurrer. It is well settled that a demurrer regularly admits no other facts than those which are well pleaded ; if facts are pleaded which are insufficient in substance or immaterial, they are not admitted by the [401]*401demurrer to be true ; its office is to assert a legal proposition, that the pleading demurred to is insufficient in law, to maintain the case shown by the adverse party.” Gould on Plead., ch. 9, secs. 2, 3, 4 and 5.
The averment in the answer is substantially that there were fraudulent votes cast for the appellee, and for that reason he was not legally elected ; but that is a question which the Court has no jurisdiction or authority to decide; the averment therefore raises what in this case is an immaterial issue, and “when a plea makes an immaterial issue it is demurrable,” as decided in Law vs. Scott, 5 H. & J., 438; Neale vs Clautice, 7 H. & J., 372.
Upon the return of the judges of election certified to the Governor by the Clerk of the Circuit Court, showing that the appellee had been elected, it is very clear that the Governor had the authority to issue to him the commission under the 11th and 12th sections, Art. 4 of the Constitution.
In Magruder vs. Swann, 25 Md., 173, which arose under the Constitution of 1864, containing the same provisions, it was held that the duty imposed upon the Governor in such cases is merely ministerial, and its performance might be enforced by mandamus.
It has been argued that it was the duty of the Governor to withhold the commission, upon receiving notice from the appellant, of his intention to contest the election before the House of Delegates.' But there is nothing in the sections of the Constitution to which we have referred that supports this view. On the contrary, the 11th section expressly declares that the election returns shall be certified to the Governor, “who shall issue commissions to the different persons for the offices, to which they shall have been, respectively, elected; and in all such elections, the person having the greatest number of votes, shall be dec'ared, to be elected.”
[402]*402The 12th section directs “ that in case of any contested election, the Governor shall send the returns to the House of Delegates, which shall judge of the election and qualification of the candidates at such election.” But this cannot be construed as depriving the Governor of the power to issue the commission to the person returned as elected ; and to whom by the previous section it is made the duty of the Governor to issue the commission. The last part of the 12th section evidently contemplates that the commission in such case may be issued, for it provides that “if the judgment of the House of Delegates shall be against the one who has been returned elected, or the one commissioned by tbe Governor, the House of Delegates shall order a new election within thirty days.” It is very obvious from the language of the Constitution, as well as upon the plainest reason, that it never was contemplated, that a party should be entitled to continue in office, merely by giving notice to the Governor, of his intention to contest the election of his successful competitor ; or that the Governor, upon receiving such notice, would be justified in refusing to issue the commission to the person regularly and duly returned as elected.
The commission having been properly issued to the appellee, and he having given bond and taken the oath as required by law, there appears to us to be no valid ground for denying to him the right to the office. By his commission and qualification the official tenure of his predecessor was terminated. This was substantially decided in Jump vs. Spence, 28 Md., 1. In that case Judge Franklin was duly returned as elected to the office of Circuit Judge, was commissioned and qualified, and went into the office; his election was contested by Judge Spence, his predecessor in office, and the House of Delegates, upon grounds not necessary now to be noticed, decided in favor of Judge Spence, to whom the office was [403]*403then surrendered. The case arose upon a claim made by Judge Spence against the Comptroller, for the salary, during the time when the office was held by Judge Franklin. This Court decided against the claim, reversing, to that extent, the ruling of the late Judge Mason, who decided the case below as special Judge. But on the question of the right of Judge Franklin to the office, during the contest, this Court affirmed the ruling of the Special Judge, who said in his opinion : “ As soon therefore as Mr. Franklin received his commission and qualified’ thereunder, in legal contemplation he became for the time being, the legally constituted Judge, at least so far as the public were concerned, and his predecessor who held over under the Constitution up to that time was superseded. The commission and qualification were all the muniments of title to the office which the Constitution in that stage of the case required. The official tenure of Mr, Spence, under his first commission, was as effectually terminated by the Commission and qualification of Mr. Franklin, as if that gentleman had been subsequently confirmed by the House of Delegates.” On this question this Court said, 28 Md., 11, "We agree with the conclusion to which the special Judge arrived in deciding the case. We think the appellee (Spence) could not have continued to hold the office, after the commission and qualification of Mr. Franklin.”
That decision seems to us to conclude the question as io the right of the appellee to the office now in dispute. His title is not impaired or affected by the pending contest before the House of Delegates. The effect of the opposite construction, contended for by the appellant, would be to enable him, by making a contest, to extend his official term indefinitely; for if a new election should be ordered and he be again unsuccessful, he would only have to notify the Governor of his intention to make a contest, in order to remain in office until the next meeting of the House of Delegates two years hence. Such a con[404]*404struction of the Constitution cannot for a moment be accepted. But it is urged that a mandamus ought not to be awarded iu favor of the appellee, because of the pending contest before the House of Delegates, upon the ground that where the same question is pending before another tribunal having concurrent, jurisdiction, the writ ought not to be granted. In support of this view we have been referred to Hardcastle’s case, 32 Md., 32, and other decisions have been cited to the same effect,' but they have no application to this case, for the'reason that the jurisdiction of the House of Delegates and that exercised by this Court, are in no sense concurrent. To that tribunal the Constitution has given the exclusive power and jurisdiction to go behind the election returns, to examine into the qualification of voters, purge the ballot box and recount the votes ; subjects over which the Courts have no jurisdiction. Our power and jurisdiction are confined simply to the question of the legal rigfht of the appellee to claim the office, after having been duly returned as elected, and being commissioned and qualified; and on this question we do not think there is any room for doubt. The last argument addressed to us on behalf of the appellant, is that the writ of mandamus not being one ex débito jUstitice, but resting in the sound discretion of the Court, ought not to be granted in the present case, because of the contest pending in the House of Delegates. To this a brief answer will suffice, as said by the Court below, the discretion confided to us is not arbitrary, ££ but must be exercised under the established rules of law, and if under those rules the party is entitled to the writ, it must be issued.”
(Decided 5th February, 1874.)
For these reasons the order of the Circuit Court will be affirmed, and the case will be remanded, to the end that a writ of mandamus may be issued as prayed.
Order affirmed.