Benson v. Mellor

• Decision Date: 17 February 1927
• Docket Number: No. 37.,37.
• Citation: 137 A. 294
• Parties: BENSON et al. v. MELLOR, Circuit Court Clerk.
• Court: Maryland Court of Appeals

137 A. 294

BENSON et al.

v. MELLOR, Circuit Court Clerk.

No. 37.

Court of Appeals of Maryland.

Feb. 17, 1927.

Appeal from Circuit Court, Carroll County; F. Neal Parke, Wm. Henry Forsythe, Jr., and Robert Moss, Judges.

"To be officially reported."

Petitions by George E. Benson and others for writs of mandamus to Edwin M. Mellor, Jr., Clerk of the Circuit Court for Carroll County. From an order dismissing the petitions, petitioners appeal. Affirmed.

Argued before BOND, C. J., and URNER, OFFUTT, DIGGES, and SLOAN, JJ.

William L. Rawls, of Baltimore (Edward O. Weant, of Westminster, on the brief), for appellants.

Alexander Armstrong and William C. Coleman, both of Baltimore (Theo. F. Brown and W. D. Seabrook, both of Westminster, on the brief), for appellee.

BOND, C. J. The question to be decided on this appeal is whether, upon a failure to elect to the offices of county commissioners of Carroll county at the general election of November, 1926, those offices became vacant within the meaning of the constitutional provision for appointments by the Governor to fill vacancies. At that election three commissioners were to be elected for terms of different lengths, two for four-year terms, and one for a three-year term, and all nominations and elections were made without distinguishing which candidate was to fill the three-year term, and which the four-year terms, and the Governor was advised that there had been no complete, valid election, that, as a result, the offices were left vacant, and that he was under the necessity of appointing officers to fill the vacancies. The appellants were then appointed, but, the existence of vacancies calling for such appointments having been questioned meanwhile, the clerk of the circuit court for Carroll county declined to swear them in as appointees until the question should be settled. The appellants then filed petitions for writs of mandamus to direct the clerk to swear them in. The trial court, after having heard arguments, concluded that there were no vacancies in the offices and dismissed the petitions. And the petitioners have appealed from the dismissal. We have come to the conclusion that the action must be affirmed.

The situation which was to be dealt with at the election arose in the transition from terms of office under the older constitutional and statutory provisions to terms under article 17 of the state Constitution, commonly known as the "Fewer Elections Amendment," ratified in 1922. And, more specifically stated, the question to be decided is whether, after a failure to elect their successors, commissioners holding office under the older law continued to hold office after the annual election of November, 1926, and by doing so prevented vacancies.

Article 7, section 1, of the Constitution, as it stood prior to the adoption of the Fewer Elections Amendment, provided that county commissioners should "be elected at such times, in such numbers, and for such periods not exceeding six years, as may be prescribed by law." And in pursuance of this provision, it was enacted by the Act of 1892, chapter 290, that there should be three commissioners for Carroll county, each holding office "for a term of six years," but the three terms to overlap so that one term should expire and there should be an election of a commissioner to enter upon a new, succeeding term, every two years. Under these provisions, one commissioner was elected in 1917 for six years, or until the election of 1923, another, Charles W. Melville, was elected in 1919 for six years ending in 1925, and another, John H. Repp, was elected in 1921 for six years ending in 1927; and the three offices were thus filled when the Fewer Elections Amendment was adopted in 1922. The plan of that amendment was that all state and county officers, with exceptions irrelevant here, should hold office for four years, and that all the four-year terms should have common beginnings and endings, at the same elections. There was to be no further overlapping of terms. And the first common starting point was to be the election in November, 1926. It was further planned and provided that there should be no interference with existing terms of office in bringing all terms ultimately to common beginning points; and to effectuate this, it was provided by the amendment that terms to end under the previous law at an election in 1925 should be extended to the election now to be held in 1926, that terms to end after 1926, that is, in November, 1927, should continue to that time, and that officers for the terms succeeding those should be elected in 1926 for the three years from November, 1927, to November, 1930. New terms of office to begin after the adoption of the amendment and before 1926, that is, at the election of 1923, were curtailed to three years, to bring up to the general starting point of the election of November, 1926. Constitution, article 17, §§ 1, 2, 3, and 5. And, following out the scheme so adopted the filling of the offices of county commissioners of Carroll county proceeded thus after 1922: At the election of 1923, John W. Reaver was elected for a term of three years, or to 1926; Mr., Melville, finishing his six-year term, under the old law, in 1925, continued to hold for the additional year to November, 1926; and Mr. Repp held a term which was to run its full course to November, 1927. And, therefore, at the election of 1926, the terms to be filled were two terms of four years to follow those of Mr. Melville and Mr. Reaver, and one term of three years to follow the term of Mr. Repp after 1927.

All authorities agree that for an election to such different terms there must be distinct choices made for the one term and the other, or there would be no complete, valid election. If there are no distinct choices, then it is not determined which candidates shall fill which terms, and the election has accomplished nothing. Page v. Kuykendall, 161 Ill. 319, 43 N. E. 1114, 32 L. R. A. 656; In re Gilleland, 96 Pa. 224; Edes v. Haley, 94 Wash. 232, 162 P. 50. Nevertheless, in this instance, all candidates alike were nominated, and the votes were cast without the necessary distinction, Mr. Melville, Mr. Benson and Mr. Harner having received the highest numbers of votes merely "for the office of county commissioner of Carroll county." And the result is, in our opinion, a failure to elect.

The view that all three terms might be considered as having been made regular four-year terms, and the necessity of electing to separate terms removed by a constructive resignation or abandonment by Mr. Repp of his right to continue in his old term to 1927, we find ourselves unable to adopt because of the explicit provision in the Constitution that there should be an election of one commissioner for only three years, to begin after November, 1927. This provision, it seems to us, must be followed, irrespective of any action by Mr. Repp. The provision makes no reference to persons; it defines the terms.

Proceeding on the supposition that the election was invalid, then, did the failure to elect result in vacancies in the offices within the meaning of the law authorizing the Governor to fill vacancies by appointments? That law is contained in section 4 of article 25 of the Code of Public General Laws, and it provides specifically that, "in case any office of county commissioner shall become vacant in any county by death, resignation or otherwise, the Governor" shall appoint to fill the vacancy as he has appointed in this instance. And, as has been said, the question of the existence of a vacancy to be filled under this section depends upon the further question, or we might say it is the question, whether the old incumbents continue to fill the offices and prevent vacancies. Are they to hold until their successors are elected and qualified, and, if so, is their holding over a filling of the offices which saves them from being vacant? The Act of 1892, chapter 290, under which they took office originally, provided only that they should "hold office for a term of 6 years." Section 1 of the Fewer Elections Amendment (article 17), by way of contrast, provides that "all county officers elected by qualified voters, shall hold office for terms of four years, and until their successors shall qualify." Section 3 of the amendment, again, after providing for limiting the terms of officers to be elected in 1923 to three years and so bringing the terms to the common starting points, adds that all elected thereafter shall hold for four-year terms, without referring to holding over until the qualification of successors. If the incumbents before the Election of 1926 hold over for any purpose, it is not, therefore, by reason of any express provision of law for their doing so; it must be by virtue of a general principle which governs, irrespective of the existence of such an express provision.

The view widely held by the courts of this country is that there is such a principle, that holding over by incumbents until their successors qualify is always intended by the law whether there is an express provision for it or not, unless, indeed, a contrary intention should be manifested with respect to any particular office. An express provision for holding over by some officers is not construed as manifesting an intention that other officers shall not hold over in the absence of an express provision for it. And this we take to be the general understanding. It is, at least, assumed generally that an officer elected to a definite term of years, such as six years, is to hold office until his successor is elected in ordinary course, although, as the date of election under our system may vary from the 2d day of November to the 8th, an incumbent's exact term of years might expire, in some instances, six days before the election of a new officer. And it has long been established in this state, as elsewhere, that an officer regularly holds over in office beyond the election to...