Cantwell v. Owens

• Decision Date: 15 July 1859
• Citation: 14 Md. 215
• Parties: JOSEPH P. CANTWELL v. JOHN OWENS.
• Court: Maryland Court of Appeals

14 Md. 215

JOSEPH P. CANTWELL v. JOHN OWENS.

Court of Appeals of Maryland.

July 15, 1859

Appeal from the Circuit Court for Cecil County.

This was an application made, on the 22nd of July 1858, by the appellant, for a rule upon the appellee to show cause why a mandamus should not issue, commanding him to deliver up to the appellant, the office of justice of the peace for the third election district of Cecil County, and the docket and papers of William Hanes, deceased, the former justice for said district.

The rule was laid, and the appellee having shown cause, an agreed statement of facts was filed, upon which the case was submitted to the court below. The facts thus agreed on are briefly these: On the 4th of November 1857, the appellee was regularly appointed and commissioned by the Governor (Ligon,) a justice of the peace for the third election district of Cecil County, to fill a vacancy occasioned by the death of William Hanes, who had been regularly elected and commissioned as such justice. This appointment was made during the recess of the Legislature, and on the 16th of February 1858, during the session of the Legislature, the appellant was nominated by the Governor, (Hicks,) and with the advice and consent of the Senate, appointed and commissioned to fill the same vacancy. Both parties so appointed took the oaths required by the Constitution and laws. It was agreed, that if the court should be of opinion that the appointment of the appellee authorized him to hold and exercise the office until the next general election of delegates for Cecil County, the judgment should be in his favor with costs; but if the court should be of opinion that the appointment of the appellee only authorized him to hold and exercise said office until the Governor, by and with the advice and consent of the Senate, should appoint a person to said office, and that the appointment of the appellant superseded that of the appellee, then the judgment to be in favor of the appellant with costs; and either party to have the right of appeal.

The court (Price, J.) rendered a pro forma judgment in favor of the appellee for costs, and that he hold the said office until the next general election of delegates, from which this appeal was taken by the appellant.

The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK JJ. Jas. T. McCullough for the appellant:

The decision of this case depends entirely upon the construction of the Constitution, with reference to the power of the Governor to appoint justices of the peace, in cases of vacancies. The ground assumed by the appellee is, that Art 4, sec. 19, should be construed independently of any other part of the Constitution. The language of that section is:--" In the event of a vacancy in the office of justice of the peace the Governor shall appoint a person to serve as justice of the peace, until the next regular election of said officers." As nothing is here said about sending the appointment to the Senate to be confirmed the inference is drawn, that the Governor has the power independently of the Senate, to fill the vacancy till the next regular election of justices of the peace, and that having once made the appointment he has no power of removal over his appointee.

This construction is at variance with principles long established for the proper interpretation of legal instruments and statutes. " In construing a statute the intention of the lawgiver and the meaning of the law are to be ascertained by viewing the whole and every part of the Act." Broom's Maxims, 449, and the authorities there cited. In giving interpretation to other portions of the Constitution this court has applied the same principle. " Constitutions are not to be interpreted according to the words in particular clauses. The whole must be considered with a view to ascertain the sense in which the words are employed, and its terms must be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers and the people who adopted it. This is unquestionably the correct rule of interpretation." Manly v. State, 7 Md. 147. In application of these well settled principles to this case, it is necessary to construe Art. 4, sec. 19, in connection with any other part of the Constitution, which may have application to the same subject, and show the intention of its framers.

In Art. 2, sec. 12, which treats of the general power of the executive, we find this language: " 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 till the end of the next session of the Legislature, or till 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." Is this section to have a general application to " any office which the Governor has power to fill," or is it to be taken with limitations and exceptions? The language is certainly comprehensive enough to apply to every office which he has power to fill, whether existing under the Constitution itself, or under some statute of the State. There is nothing in the Constitution to show, that the office of justice of the peace was intended to be excepted from this general provision. In the event of a vacancy in the office, it becomes an office which the Governor has power to fill, and, by the terms of this section, the nomination of the justice, appointed by him during the recess, or of some other person in his place, should be made to the Senate within thirty days after the next meeting of the Legislature. If this be the true construction, it follows, that Owens is not entitled to the office, and every official act he has performed since Cantwell has been commissioned and qualified, if of no legal force or authority. This construction is that which has been given by the Executive Department, since the adoption of the Constitution up to the last session of the Legislature, as shown by the Journals of the Senate.

But if it is admitted, for the sake of the argument, that the Governor has the power to make the appointment of a justice of the peace, in the event of a vacancy, independently of the Senate, it would seem that, under Art. 2, sec. 15, he nevertheless had a right to remove his first appointee and put another in his place for the residue of the unexpired term. The language of this section is, that he " may remove for incompetency or misconduct, all civil officers who receive appointments from the Executive for a term of years." The expression, " term of years," is a legal phrase and well understood. 2 Bl. Com. 143. Wharton's Law Lexicon, 1001, " Terms of years. " It is here used in contradistinction to appointments during good behaviour or for life. It is true, that in the Constitution itself, there are no officers named, who hold their appointments by a life tenure. It cannot, however, be shown that the Legislature has not the power to create offices with such a tenure, and it is very clear that under the organic law of the State, such power might be exercised by the Legislature. The use of these words, " term of years," could imply nothing else. If there can be no other civil officers but those who hold for a term of years under our Constitution, then the use of the expression " " " " " term of years," in this section, was without meaning or point. This cannot be presumed, and to be properly understood, these words can only be construed in the sense above indicated. They mean any period of time whether more or less than a year. It is called a term, (terminus,) because its duration is bounded, limited and determined. The appointment of a justice of the peace, until a justice shall be elected at the regular election of those officers, is therefore an appointment for a " term of years." But is a justice of the peace a civil officer? The word civil is often used as opposed to military. In this section the expression, " civil officers," is evidently used in contrast with " " " " " military officers," who are referred to in the first part of the same section, and certainly includes all officers of the State, who are not military officers. A justice of the peace is, therefore, beyond all question a civil officer. But it may be said, that the Governor has no right to remove a justice of the peace, appointed by him to fill a vacancy, unless he shall have been convicted of incompetency or misconduct, by a court of law. Such a view of the matter does not appear from Art. 2, sec. 15, or any other part of the Constitution. On the contrary, the very reverse is manifest from the section itself. In the case of military officers, the Governor has no power to remove, except in pursuance of the sentence of a court-martial. The Constitution seems to be intended, in regard to civil officers, to give the Governor authority to inform himself as to their qualifications, incompetency or misconduct, in any way he may be disposed to take. The fact, that the sentence of a court is made necessary, where military officers are concerned, and is not named in connection with civil officers, shows, beyond a doubt, that the framers of the Constitution did not design to make a conviction in a court of law necessary, before the Governor could exercise the power of removal. Expressio unius est exclusio alterius.

It would seem therefore, that a person appointed by the Governor, as justice of the peace, to fill a vacancy, being a civil officer and appointed for a term of years, may be removed for incompetency or...