Dyer v. Bayne

• Decision Date: 18 June 1880
• Parties: DANIEL R. DYER v. WILLIAM B. BAYNE. ROBERT S. TILTON v. ALEXANDER SOMERVILLE. EDWARD H. OWENS v. PETER W. HAWKINS. JOHN E. CARPENTER v. LEO H. HAYDEN.
• Court: Maryland Court of Appeals

54 Md. 87

DANIEL R. DYER v. WILLIAM B. BAYNE.

ROBERT S. TILTON v. ALEXANDER SOMERVILLE.

EDWARD H. OWENS v. PETER W. HAWKINS.

JOHN E. CARPENTER v. LEO H. HAYDEN.

Court of Appeals of Maryland

June 18, 1880

The cause was argued before BARTOL, C.J., MILLER, ALVEY, and IRVING, J.

M Bannon and Bernard Carter, for the appellants.

It is clear from Article 2, sections 10 and 13 of the Constitution that while the Governor nominates to the Senate, the appointment is the joint act of the Governor and Senate. The language of the tenth section is: "He shall nominate, and by and with the advice and consent of the Senate appoint. " And the language of the thirteenth section is equally explicit: All civil officers " appointed by the Governor and Senate shall be nominated to the Senate, &c., & c."

Until therefore, the Senate has joined in the act there is no appointment. The Senate does not join in the act until it votes upon the nomination. If this vote is favorable it is called a " confirming. " It is, in law and in fact, the performance by the Senate of its part of the appointment. The appointment therefore, does not take place until the Senate has thus acted. And such is the law as established by the decided cases. See among others-- Watkins vs. Watkins, 2 Md., 355; McBlair vs. Bond, 41 Md., 155; U.S. vs. LeBaron, 19 How., 73; U.S. vs. Bradley, 10 Peters, 314.

The Senate did not take action upon the nominations of the petitioners until April 5th, 1880, and therefore, their appointment was made on and dates from that day.

By the express terms of the thirteenth section of Article 2 of the Constitution, the term of office of the Inspectors of Tobacco is made to commence on the first Monday of March next ensuing their appointment. The appointment having been made on April 5, 1880, the "first Monday of March next ensuing their appointment," is necessarily the first Monday of March 1881. Hence, it follows that the term of office of the petitioners does not commence until the first Monday of March, 1881, and of course they can have no title to the possession of the warehouses until their term of office begins. It necessarily results therefore, that their petition must be dismissed.

This being so, it is a matter with which they have no concern whether the respondents are entitled to continue in office or not. But it is clear that the tenure of the respondents continues until March, 1881. The same section of the Constitution (Article 2, section 13,) provides that the term of all civil officers appointed by the Governor and Senate (except in cases otherwise provided for in the Constitution) shall commence on the first Monday of May next ensuing their appointment, and continue for two years, and until their successors respectively qualify according to law; but the term of the Tobacco Inspectors shall commence on the first Monday of March next ensuing their appointment.

It is thus plain that the only difference between the term of the Tobacco Inspectors and that of all other civil officers mentioned is, that the term of the Tobacco Inspectors begins the first Monday of March, instead of May. All the other provisions apply to them; and therefore, they hold for two years, "and until their successors qualify according to law." The petitioners are their successors, and the petitioners' term does not begin until March, 1881. They are not, therefore, by law, qualified to enter upon their duties until that time; hence, the respondents hold until then.

The fact that the holding over of the respondents will cause hereafter the term of office to begin in the years intervening between the sessions of the Legislature is nothing objectionable. Marshall vs. Harwood, 5 Md., 432.

The only ground upon which the provision of the Constitution that "the term of office of the Inspectors of Tobacco shall commence on the first Monday of March next ensuing their appointment," is sought to be nullified is that as the same section says that the term of office of the Tobacco Inspectors shall "continue for two years, and until their successors qualify according to law," the Court must, in order to prevent the appellants from holding over for longer than two years, nullify the provision which declares that the term of office of the appellees shall commence on the first Monday of March next ensuing their appointment, and make it begin a month before their appointment, viz., on the first Monday of March, 1880.

Now, even if the Constitution had only said that the term of office of the Tobacco Inspectors should "continue for two years," then, although the term of office of the appellants who were appointed prior to the first Monday of March, 1878, and whose term, therefore, began on the first Monday of March, would have ended on the first Monday of March, 1880, yet they would have held until their successors were duly qualified to assume the office. Thomas vs. Owens, 4 Md., 221.

But the thirteenth section of Article 2, expressly provides that they shall hold not only for two years from their appointment, but also "until their successors shall qualify according to law." Therefore, the appellants' term of office continues not only for two years from their appointment, that is, two years from the first Monday of March, 1878, but until their successors qualify according to law. Therefore, as the appellees' term does not begin until the first Monday of March succeeding their appointment, that is, until the first Monday of March succeeding April 5th, 1880, they cannot qualify according to law, until their term begins, and therefore the appellants' term continues until the first Monday of March, 1881, which is the first Monday succeeding their appointment.

The whole theory of the appellees is based on the assumption that the 13th section of Article 2, as it now stands, is to be construed as if it read "the term of office of the Tobacco Inspectors shall commence on the first Monday of March of the year in which the session of the General Assembly shall begin." If this had been the language of the Constitution, then it might, with some show of plausibility, be contended, as it is now, that no matter when the appointment was made, the term would begin on the first Monday of March of the year the Legislature began its session, and that, therefore, the term of the appellees began on the first Monday of March, 1880, though they were not appointed until April 5th, 1880.

But the Constitution does not so provide; on the contrary, it provides that the term shall commence, not on the first Monday of March of the year during which the session of the Legislature begins, but on the first Monday of March ensuing that appointment. Does not this show, conclusively, that the date of the appointment is the terminus a quo, from which the first Monday of March is to be reckoned?

Again, does not the construction contended for by the appellees make the Constitution read as if it said that the term of office of the appellees shall begin from the first Monday of March preceding their appointment instead of ensuing their appointment.

The foundation of the whole argument on the part of the appellees, and the decision of the Judge of the Superior Court of Baltimore City, is nothing more or less than that the interpretation of the appellants, which is admitted to be in accordance with the plain purport of the Constitution, involves the result that the Senate by refusing to make the appointment until after the first Monday of March of the year they are in session, may prolong the term of the then existing Inspectors beyond the two years. That this is no reason against the words of the Constitution being interpreted according to their plain import is res adjudicata in Maryland. Watkins vs. State, 2 Md., 355; Marshall vs. Harwood, 5 Md., 432; State vs. Jarrett, 17 Md., 147.

D. S. Briscoe and Frederick Stone, for the appellees.

The question of the title to the office at this time turns upon the true construction of section 13, Article 2, of the Constitution. In construing the Constitution the whole instrument must be taken together, and so interpreted as to give effect to every section and clause if practicable, and to carry out the prevailing principle that if different portions seem to conflict, the Courts must harmonize them if it can be done consistently. McPherson vs. Leonard, 29 Md., 389; Groome vs. Gwinn, 43 Md., 624.

The general rule established by section 13 of Article 2, of the Constitution, and its manifest intention was that all the officers included in that section were to have a two years' tenure and no more, except in such cases where the new officers did not qualify at the beginning of the term; in which case the old officers held over until they did, but no longer. It has been repeatedly decided by this Court that the qualification of the successor ends the term of the old officer. As Bayne is the admitted successor of Dyer, and has qualified according to law, the term of Dyer is at an end. State vs. Wayman, 2 Gill & Johns., 278; Jump vs. Spence, 28 Md., 11; Brooke vs. Widdicombe, 39 Md., 402, 403; McBlair vs. Bond, 41 Md., 155.

The term of Dyer being ended, either Bayne is entitled to possession of the office, or there is a vacancy. But if the latter, the office must continue vacant until the first Monday of March, 1881, as the same terms used in section 13 would apply as well to the appointee of the Governor as to Bayne. The respondent could make the same defence to the appointee of the Governor, (should it be held that there is a vacancy to be filled by the Governor, under section 11 of Article 2,) as he does to Bayne. He could say that the appointee was only entitled on the 1st of March, next ensuing his appointment, which would be March,...