Little v. Schul
| Decision Date | 10 July 1912 |
| Citation | 84 A. 649,118 Md. 454 |
| Parties | LITTLE v. SCHUL. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; John J. Dobler, Chas. W. Henisler and Walter I. Dawkins, Judges.
Action by William E. Schul against Stephen O. Little. Judgment for plaintiff, and defendant appeals. Reversed, and petition dismissed.
Argued before BOYD, C.J., and PEARCE, BURKE, THOMAS, PATTISON URNER, and STOCKBRIDGE, JJ.
Benj. H. McKindless and Eugene O'Dunne, both of Baltimore, for appellant. J. Cookman Boyd and Myer Rosenbush, both of Baltimore, for appellee.
In March, 1912, the mayor and city council of Baltimore passed Ordinance No. 87 appointing two constables for each of the wards of the city, except the Eighth and Twelfth wards, for each of which only one constable was appointed; one constable for each of said wards having been previously appointed. By that ordinance, which was approved by the mayor on the 19th of March, 1912, the appellee, William E. Schul, and James Barnes were appointed constables for the First ward for two years from the date of its passage. The appellee had been a constable for 16 years, and had always qualified before Thomas A. Campbell, a deputy clerk of the superior court of Baltimore city. He was told by one of the constables appointed by said ordinance that the ordinance had been signed by the mayor, and on the 4th of April, 1912, he went to the office of the appellant, the clerk of the superior court, and told Mr. Campbell that he had heard that the ordinance had been signed by the mayor, and that he had come there to qualify. Mr. Campbell told him that he did not have a copy of the ordinance; that it was in the city solicitor's or the mayor's office, but that the had been passed by the Legislature, and that he was no longer a constable; and that he could not swear him in. On Saturday the 11th of May, the appellee went to the office of the appellant with his attorney, and requested Mr. Campbell to administer to him the official oath. Mr. Campbell explained to the attorney that he did not have a copy of the ordinance or a certificate of the appointment of the appellee, and referred them to the appellant. Appellee's attorney then left the office to procure a certified copy of the ordinance; but when he returned the appellant was not there. The following Monday May 13th, the appellee and his attorney again went to the office of the appellant, and, producing a certified copy of the ordinance and a duly executed bond, requested the appellant to administer to the appellee the oath required by law to be taken and subscribed by constables; but the appellant refused to do so.
It appears from the testimony of Mr. Campbell that he had been deputy clerk of the superior court of Baltimore city for the last 15 years, and that during that time the constables of Baltimore city have generally qualified before him; that ever since Ex-Governor White was city solicitor, and for a number of years, it had not been the practice or custom in Baltimore city to issue commissions to constables; but the clerk of the superior court receives from the mayor's office a certified copy of the ordinance appointing constables, or a notice of their appointment, and when the constables come to the clerk's office he gives them a bond, and when it is executed and returned to him and has been approved he administers to them the official oath, and after the oath has been taken and subscribed he gives them a certificate showing that they have duly qualified, and that that certificate is the only commission or certificate they receive.
Upon the refusal of the appellant, on the 13th of May, 1912, to administer the official oath to the appellee, the appellee, on the same day, filed in the Baltimore city court a petition alleging that he bad been duly appointed constable for the First ward of Baltimore city by Ordinance No. 87 of the mayor and city council of Baltimore, a copy of which was filed with the petition, and that on the 13th of May, 1912, he exhibited to the appellant, as clerk of the superior court of Baltimore city, a certified copy of said ordinance, and tendered to him a bond duly executed, as required by law, and requested the appellant to administer to him the oath which the law requires to be taken and subscribed by constables, and that the appellant refused to administer said oath to him, and praying for a writ of mandamus commanding the appellant to administer said oath to him, and, upon his taking and subscribing said oath and presenting the bond, as required by law, and paying the necessary fees, to issue to him a certificate showing that he is a duly qualified constable of Baltimore city.
The answer of the appellant alleges that the appellee was appointed a constable of Baltimore city prior to the 19th day of December, 1908, and that he qualified as constable on that day, and that he had since been acting as constable of Baltimore city "under said appointment and qualification." It admits the passage of Ordinance No. 87, but denies that the appellee was thereby appointed constable for the First ward of Baltimore city. The answer further alleges that the appellee did not make, or offer to make, the declaration of religious belief, and did not take and subscribe, or offer to take and subscribe, the oath required by the Constitution within 30 days after his appointment or the passage of Ordinance No. 87, and that the appellee did not offer to give a bond, with good and sufficient security, approved by the judge of the superior court of Baltimore city, as required by law, and that by reason of such failure and neglect on the part of the appellee he was not entitled to have said oath administered to him. The ninth paragraph of the answer charges as a further reason why the writ should not be granted that section 206 of the charter of Baltimore city (Laws 1898, c. 123), in pursuance of which Ordinance No. 87 was passed, was repealed by the act of 1912, c. 823, commonly called the which went into effect on the 2d of May, 1912, and that at the time the appellee offered to qualify, on the 13th of May, 1912, his appointment had, by said act, been annulled and made void, and that therefore he was not entitled to qualify as a constable of Baltimore city.
The appellee demurred to the ninth paragraph of the answer, and, after the taking of the testimony to which we have referred, the court below passed an order sustaining the demurrer, and directing the writ to issue as prayed, and this appeal is from that order.
The contentions of the appellant are, first, that Ordinance No. 87, appointing the appellee, was not passed in accordance with the provisions of section 25 of the charter of Baltimore city, and is therefore void and of no effect; second, that the appellee failed to qualify within the time prescribed by law and thereby forfeited his right to the office; and, third, that section 206 of the charter of Baltimore city, in pursuance of which the ordinance appointing the appellee was passed, was repealed by the act of 1912, c. 823, which went into effect on the 2d day of May, 1912, and his appointment was thereby annulled before he offered to qualify on the 13th of May, 1912.
1. Taking up these several contentions in the order in which they were presented in this court, without meaning to question the validity of the act of 1912, c. 823, which, in our view of the case, is not involved in this controversy, we think it quite clear that, where an appointment to a public office is made in pursuance of the provisions of the Constitution, and the Constitution fixes the term of office the appointment cannot be revoked or annulled, or the term of office abridged or extended by the Legislature, unless it is authorized to do so by the Constitution. It is said in 23 Ency. of Law (2d Ed.) on page 406, where many cases are cited in support of the text, that, --and it is stated on page 431: "When the Constitution has declared the grounds or mode of removal of an incumbent before the expiration of his term, the Legislature has no power to authorize the removal or suspension of the officer for any other reason, or in any other mode." In the case of Marshall v. Harwood, 5 Md. 423, the court, referring to the term of state librarian, which was fixed by the Constitution at "two years, and until his successor shall be elected and qualified," said: "We are clear the Legislature would have no power to curtail the term, by making it end during the session at which the election took place." It was said by the Supreme Court of Ohio, in State v. Brewster, 44 Ohio St. 589, 9 N.E. 849: "The assumption of counsel that there is no power in the General Assembly to extend the term of an office, which is limited by the Constitution, is abundantly warranted by State v. Howe, 25 Ohio St. 588 , where it is said by McIlvaine, C.J.: 'After a careful examination of the question, in the light of both principle and authority, we are led to the conclusion that the General Assembly may provide against the occurrence of vacancies by authorizing incumbents to hold over their terms, in cases where the duration of their terms is not fixed and limited by the Constitution."' Also: "In cases where the duration of the term of office is limited by the Constitution, of course its duration cannot be extended by statute." And in the case of People v. Knopf, 198 Ill. 340, 64 N.E. 842, the court, after citing Mechem, Pub. Off. § 387, in support of the statement that the Legislature had no control over a...
To continue reading
Request your trial