Buchholtz v. Hill

• Decision Date: 22 May 1940
• Docket Number: 27.
• Citation: 13 A.2d 348,178 Md. 280
• Parties: BUCHHOLTZ v. HILL et al.
• Court: Maryland Court of Appeals

13 A.2d 348

178 Md. 280

BUCHHOLTZ v. HILL et al.

No. 27.

Court of Appeals of Maryland

May 22, 1940

Appeal from Circuit Court, Allegany County; D. Lindley Sloan and William A. Huster, Judges.

Petition by William H. Buchholtz against R. Mason Hill, Robert Jackson, clerk of the circuit court for Allegany county, Md and Simeon W. Green and others, constituting the Board of County Commissioners of Allegany county, Md., for a writ of mandamus to command the clerk of the circuit court and the county commissioners to allow petitioner to qualify as clerk to the county commissioners of Allegany county, and to command R. Mason Hill to surrender the office to him. From an order sustaining defendants' demurrer and dismissing the petition, the petitioner appeals.

Affirmed.

Edward J. Ryan and W. Earle Cobey, both of Cumberland, for appellant.

Walter C. Capper, of Cumberland, and Horace P. Whitworth, of Westernport, for appellees.

William C. Walsh, Atty. Gen. of Md., amicus curiae.

Argued before OFFUTT, PARKE, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

DELAPLAINE, Judge.

The question in this case is whether the Governor has the right to make an appointment to fill a vacancy in the office of Clerk to the County Commissioners of Allegany County.

On July 27, 1939, after Thomas P. Richards, the incumbent, had been ordered removed from the office by the Board of County Commissioners, William H. Buchholtz, the appellant, attempted to qualify for the office in Cumberland upon a commission from Governor Herbert R. O'Conor and a bond in the amount of $5,000. The County Commissioners, however, appointed R Mason Hill to fill the vacancy; and the Clerk of the Circuit Court for Allegany County refused to administer the oath of office to the appellant.

On January 20, 1940, the appellant filed a petition for a writ of mandamus to command the Clerk of the Circuit Court and the County Commissioners to allow him to qualify, and to command Hill to surrender the office to him. He alleged that Hill was holding the office illegally.

The appellees demurred to the petition on the ground that the Governor had no power to fill the vacancy. The Court passed an order sustaining the demurrer and dismissing the petition. From that order an appeal was taken.

The appellant contends that the Clerk is a civil officer of the State and that the Governor has the authority to fill the vacancy under the Constitution of Maryland.

It is well established that a position is held to be a public office when it has been created by law and casts upon the incumbent duties which are continuing in their nature and not occasional, and which call for the exercise of some portion of the sovereignty of the State. The most important characteristic of a public office, as distinguished from any other employment, is the fact that the incumbent is entrusted with a part of the sovereign power to exercise some of the functions of government for the benefit of the people. But the necessity of taking an oath of office is also a very important test in determining whether a certain position is a public office. School Commissioners of Worcester County v. Goldsborough, 90 Md. 193, 44 A. 1055; Truitt v. Collins, 122 Md. 526, 89 A. 850; State Tax Commission v. Harrington, 126 Md. 157, 94 A. 537; Clark v. Harford Agricultural & Breeders' Ass'n, 118 Md. 608, 618, 85 A. 503. The office of County Treasurer has been classified as a civil office of the State within the meaning of the Constitution, even though the office has been created by the Legislature and not by the Constitution. Calvert County Com'rs v. Monnett, 164 Md. 101, 164 A. 155, 86 A.L.R. 1258. For many years the Clerk to the County Commissioners of Allegany County was appointed by the board itself, Acts of 1829, ch. 25; Code P.L.L., 1860 Edition, art. 1, sec. 16; Code P.L.L., 1888 Edition, art. 1, sec. 34; but in 1900 the Legislature enacted that the Clerk should be elected by the voters for a term of two years, Acts of 1900, ch. 25; since 1904 he has been elected for a term of four years, Acts of 1904, ch. 169. The candidate who is elected receives a commission, takes an oath of office and is required to give a bond for the faithful performance of his duties. He not only has custody of the records of the County Commissioners, but he also countersigns checks issued by the board, and is authorized to accept money payable to the County and to take affidavits to any papers to be filed in the office. Code P.L.L., 1930 Edition, art. 1, secs. 100-103, 113. From these facts it is evident that he is a civil officer of the State within the meaning of the Constitution.

The power to select the public officials of a State resides originally in the people, who may provide in their Constitution how the power shall be exercised, or leave to the Legislature the privilege of providing for the selection of any officials. Baltimore v. State, 15 Md. 376, 74 Am.Dec. 572; 46 C.J., Officers, secs. 63, 64, 951. The authority to appoint to office and to fill vacancies is conferred upon the Governor in the following sections of art. 2 of the Constitution, entitled 'Executive Department': 'Sec. 10. He shall nominate, and by and with the advice and consent of the Senate, appoint all civil and military officers of the State, whose appointment or election is not otherwise herein provided for; unless a different mode of appointment be prescribed by the Law creating the office.

'Sec. 11. In case of any vacancy during the recess of the Senate, in any office which the Governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue in force until the end of the next session of the Legislature, or until some other person is appointed to the same office, whichever shall first occur; and the nomination of the person thus appointed during the recess, or of some other person in his place, shall be made to the Senate within thirty days after the next meeting of the Legislature.'

Sec. 10 directs the Governor to appoint with the approval of the State Senate all officers whose appointment or election is not otherwise provided for. Davis v. State, 7 Md 151, 161, 61 Am.Dec. 331. Obviously, he has no authority to make the appointment of Clerk to the County Commissioners of Allegany County since the Legislature has prescribed that the Clerk shall be elected. Sec. 11 directs the Governor to fill vacancies in all offices to which he makes the original appointments. His power to fill vacancies does not extend to offices which are filled in the first instance by election or by appointment by some one else. Niles, Md. Constitutional Law, 112. The Maryland Constitution is unlike the Constitution of Arkansas, which provides that the Governor shall fill by appointment any vacancy that occurs in any office in the State. Cox v. State, 72 Ark. 94, 78 S.W. 756, 105 Am.St.Rep. 17. While statutes are sometimes hastily and unskilfully drawn, a Constitution imports the utmost discrimination in the use of language. Chief Justice Marshall declared that the patriots who framed the Federal Constitution must be 'understood to have employed words in their natural sense, and to have intended what they have said.' Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L.Ed. 23, 68. The Maryland Constitution was carefully written and solemnly adopted by the Constitutional Convention of 1867, and approved by the people of the State; we should therefore be careful not to depart from the plain language of the instrument. The Court of Appeals of Kentucky asserted in reference to the Constitution of that State: 'This fundamental law was designed by the people adopting it to be restrictive upon the powers of the several departments of government created by it. * * * Its every section was, doubtless, regarded by the people adopting it as of vital importance, and worthy to become a part and parcel of a constitutional form of government, by which the governors as well as the governed were to be governed. Its every mandate was intended to be paramount authority to all persons holding official trusts, in whatever department of government, and to the sovereign people themselves. * * * Wherever the language used is prohibitory it was intended to be a positive and unequivocal negation. Wherever the language contains a grant of power it was intended as a mandate. * * * To preserve the instrument inviolate we must regard its words, except when expressly permissive, as mandatory, as breathing the spirit of command.' Varney v. Justice, 86 Ky. 596, 600, 6 S.W. 457, 459; McCreary v. Speer, 156 Ky. 783, 162 S.W. 99, 102. The Maryland Court of Appeals has declared that where the Constitution of this State speaks plainly on a subject, a different interpretation should not be given to the language merely because a literal interpretation might happen...