Davidson v. Brice

• Decision Date: 15 November 1900
• Citation: Davidson v. Brice, 91 Md. 681, 48 A. 52 (Md. 1900)
• Parties: DAVIDSON v. BRICE.
• Court: Maryland Court of Appeals

48 A. 52

91 Md. 681

DAVIDSON v. BRICE.

Court of Appeals of Maryland

November 15, 1900

Appeal from circuit court, Anne Arundel county; I. Thomas Jones James Revell, and Charles T. Reifsnide, Judges.

"To be officially reported."

Application by R. Tilghman Brice for a mandamus requiring Benjamin R Davidson to surrender the office of county treasurer of Anne Arundel county. From an order for the writ to issue defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, FOWLER, PEARCE, and SCHMUCKER, JJ.

Robert Moss, for appellant.

James P. Bannon and Edward C. Gantt, for appellee.

McSHERRY C.J.

By an act of assembly (chapter 615 of the session of 1894) it was provided that the county treasurer of Anne Arundel county should be elected by the people on the Tuesday after the first Monday in November, 1897, and on the same day in every fourth year thereafter. It was declared that he should hold his office for four years from the first Monday of May next after his election, "or until his successor is duly elected and qualified." By section 223 of the same statute it was enacted that the person elected should give bond and take an oath before the clerk of the circuit court "on form similar to that heretofore taken by collectors of taxes, except as to the title of office," and that, in the event of his failure to give the bond and to qualify within 30 days after his election, the county commissioners should declare the office vacant. The same section further provided that in the event of the treasurer's death the county commissioners should proceed to fill the vacancy by the appointment of a suitable person to serve as treasurer until his successor shall be elected "at the next general election thereafter to be held for county officers in said county, and qualified as hereinafter required." At the election of 1897 Dr. C. Morris Cheston was elected treasurer. He gave bond and qualified, and subsequently entered upon the discharge of his duties. In December, 1898, he died. Thereafter the county commissioners appointed Dr. Benjamin R. Davidson to fill the vacancy. Dr. Davidson duly bonded and qualified. At the general election of 1899 Dr. Davidson and R. Tilghman Brice were candidates for the office, and the latter was returned elected. Within 30 days after the election he gave bond and took the oath of office prescribed by section 6, art. 1, of the constitution, but did not take the oath "heretofore taken by collectors of taxes," which is an oath exacted, not by the constitution, but by article 81, § 36, of the Code. Dr. Davidson refused to surrender the office to Mr. Brice, and based that refusal upon two grounds, viz.: First, that the appointment made by the county commissioners was for the unexpired portion of Dr. Cheston's term of four years, wherefore there had been no vacancy to be filled by an election, and would be none until 1901; and, secondly, that the failure of Mr. Brice to take the oath prescribed for collectors of taxes was a "default *** to *** qualify within thirty days," and rendered him ineligible, even though he had taken and subscribed the constitutional oath. Application was thereupon made by Brice for a writ of mandamus requiring Davidson to surrender the office. The circuit court for Anne Arundel county held that Brice was legally entitled to the office, and ordered the writ to issue, and from that order Davidson entered this appeal.

The case is, in our opinion, entirely free from difficulty. The first of the two grounds upon which Davidson's refusal to vacate the office rests is completely and effectually swept away by the very statute which fixed the term of office and provided for the election of a county treasurer. The term is by that statute declared to be for four years from the first Monday of May succeeding the treasurer's election, "or until his successor is duly elected and qualified." An incumbent duly elected and qualified, if he lives, or is not removed, or does not cease to reside in the county, or does not resign, is entitled to hold the office for four years from the first Monday of May ensuing his election, or longer, if his successor is not duly elected and does not qualify. But it is obvious that any of the contingencies just named might happen, and if one of them should occur the incumbent's tenure would terminate prior to the expiration of the four years; and accordingly the legislature provided that in the event of the death of the treasurer the county commissioners should declare the office vacant, and should fill the vacancy, not for the residue of the original term, but until a successor should be elected at the next general election and should qualify. The appointee's tenure cannot, under the express words of the statute, reach beyond the general election next ensuing his appointment, and the point of time thereafter when his successor chosen at that election shall qualify.

The election of 1899 was a general election, and it was the next general election which occurred after the appointment of Dr Davidson had been made. It was therefore the election at which, according to the mandate of the statute, a county treasurer was required to be chosen by the people. This being so, and Mr. Brice having at that election received a majority of the votes cast, he is entitled to the office, if he gave bond and properly qualified. Now, did he properly qualify? The only oath which he took was the one prescribed by section 6, art. 1, of the constitution. That oath reads as follows: "I, ______, do swear *** that I will support the constitution of the United States; and that I will be faithful and bear true allegiance to the state of Maryland, and support the constitution and laws thereof; and that I will to the best of my skill and judgment, diligently and faithfully without partiality or prejudice, execute the office of ______ according to the constitution and laws of this state. ***" The oath provided by the Code to be taken by collectors of taxes is in these words: "I, ______, collector of ______, do swear that I will well and truly execute the duties imposed upon me by law, and that I will justly and impartially value all property which I shall be authorized to value, according to the best of my skill and judgment; and that I will not, either directly or indirectly, make any profit of the money collected by me, by the use thereof in any manner whatever." Does his failure to take this latter oath disqualify him? Varying this question somewhat, so as to present the controlling inquiry more sharply we may ask, has the legislature the authority to...