Archer v. State

• Decision Date: 11 June 1891
• Citation: 22 A. 8,74 Md. 443
• Parties: ARCHER ET AL. v. STATE.
• Court: Maryland Court of Appeals

22 A. 8

74 Md. 443

ARCHER ET AL. v. STATE.

Court of Appeals of Maryland

June 11, 1891

Appeal from circuit court, Baltimore county.

Argued before MILLER, ROBINSON, IRVING, BRYAN, BRISCOE, and MCSHERRY, JJ.

Bernard Carter, Albert Constable, and Edgar H Gans, for appellants.

Atty. Gen. Whyte and John P. Poe, for the State.

MILLER J.

We have just decided in the preceding case (Archer v State, 22 A. 6) that, under the clause of the constitution which declares that "the term of office of the treasurer shall be for two years, and until his successor shall qualify," Archer's term of office under his first appointment in January, 1886, commenced from the time of his due qualification under that appointment on the 2d of February, 1886, and continued until the due qualification of his sucessor. He was appointed by the legislature his own successor on the 13th of January, 1888, but failed and neglected to take the oath of office, and failed and neglected to give an official bond, under that appointment until the 18th of November, 1889. On that day he attempted to do both these things. He took the oath of office before the governor, and the latter approved the bond, which was presented, and this is the bond which is sued on in the present case The main question presented by the rulings excepted to is, was the qualication on that day of any effect whatever; or, in other words, can any suit be maintained on this second bond. This depends, in the first place and mainly, upon the construction and effect of several clauses of the constitution. Article 6, § 5, declares that "the treasurer shall qualify within one month after his appointment by the legislature." Article 1, § 6, provides that "every person elected or appointed to any office of profit or trust under this constitution, or under the laws made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath or affirmation." Then the oath is set out, and the following section (section 7) declares that "every person hereafter elected or appointed to office in this state, who shall refuse or neglect to take the oath or affirmation provided for in the sixth section of this article, shall be considered as having refused to accept said office, and a new election or appointment shall be made as in case of a refusal to accept or resignation of an office." Taking this oath is what is meant by the terms "qualify" and "qualification" as used in the constitution. But in the case of the treasurer, the constitution provides that he shall also take such oath and enter into such bond "for the faithful discharge of his duties as are now or may hereafter be prescribed by law, (article 6, § 1,) and the statute law has provided that, in addition to the oath prescribed by the sixth section of the first article of the constitution, he shall take an oath faithfully, diligently, and honestly to discharge the duties of his office; and then declares that, before entering upon the discharge of his duties, he shall give bond to the state, with security or securities approved by the governor, in the penalty of $200,000, with condition that he will truly and faithfully discharge, execute, and perform all and singular the duties required, and which may be required, of him by the constitution and laws. Code Pub. Gen. Laws, art. 95, §§ 1, 2. In order, therefore, to induct a treasurer into office, and enable him to enter upon the discharge of its duties, he must-- First, be appointed by the legislature; second, he must qualify within one month after his appointment, and take both the constitutional and statutory oath; and, third, he must give the required bond. It is with one only of these requirements that we are now particularly concerned. The plain mandate of the constitution is that a person appointed by the legislature to the office of treasurer shall qualify by taking the constitutional oath of office within one month after his appointment, and with equal explicitness it is declared that, if he refuses or neglects to do so within that period of time, such refusal or neglect shall operate as a refusal to accept the office, and a new appointment must be made, as if he had, by affirmative words, declined or refused to accept it. We are unable to give these clauses of the constitution any other interpretation. We cannot treat them as merely directory, and not mandatory. Not only is the language of the constitution too plain to admit of doubt, but the great weight of authority is against a directory construction of them. As said by Judge Cooley: "Courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims and fix those unvarying rules by which all departments of government must at all times shape their conduct. * * * We are not, therefore, to expect to find in a constitution provisions which the people in adopting it have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is, at least, a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given for any other end. Especially, as has already been said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication." Cooley, Const. Lim. (3d Ed.) 78, 79. This is the view sustained by the decided weight of judicial authority throughout the country. The decisions in this state applicable to the subject, and to...