Hillman v. Boone

• Decision Date: 02 April 1948
• Docket Number: 1.
• Citation: 59 A.2d 506,190 Md. 606
• Parties: HILLMAN v. BOONE et al.
• Court: Maryland Court of Appeals

59 A.2d 506

190 Md. 606

HILLMAN v. BOONE et al.

No. 1.

Court of Appeals of Maryland

April 2, 1948

Opinion May 25, 1948.

Appeal from Circuit Court, Anne Arundel County; James Clark, Judge.

Mandamus proceeding by Noah A. Hillman against Bertram Lee Boone, II Secretary of State, and others, to require election officials to recognize petitioner as a candidate for nomination for Associate Judge of Fifth Judicial Circuit in the primary elections in May, 1948, and to place his name on the ballots in those primary elections. From an order dismissing petition, petitioner appeals.

Order affirmed.

Noah A. Hillman, of Annapolis, for appellant.

Hall Hammond, Atty. Gen., and J. Edgar Harvey, Asst Atty. Gen. (Matthew S. Evans, of Annapolis, R. G. Hoffman, of Westminster, Armstrong Machen & Eney and Charles C. W Atwater, all of Baltimore, and C. E. Hogg, of Ellicott City on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

PER CURIAM.

For reasons to be stated in an opinion to be filed hereafter, it is ordered by the Court of Appeals this 2nd day of April, 1948, that the order appealed from herein be and the same is affirmed with costs to the appellees.

MARKELL Judge.

This is an appeal from an order dismissing, on demurrer, a petition for a writ of mandamus to require the election officials to recognize appellant as a candidate for nomination for the office of Associate Judge of the Fifth Judicial Circuit in the primary elections in May, 1948, and to place his name on the ballots in those primary elections.

The question presented is whether, under Article 4, section 5, of the Constitution, as now in force, a judge of the Fifth Circuit is to be elected in 1948. Art. 4, Sec. 5, provides: 'Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge, or creation of the office of any judge, or in any other way, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the election and qualification of his successor; [except that when a vacancy shall exist in the office of Chief Judge of the Supreme Bench of Baltimore City, the Governor may designate an Associate Judge of said Supreme Bench as Chief Judge of said Supreme Bench, and such appointee as Chief Judge shall hold such office for the residue of the term for which he was last elected an Associate Judge of said Supreme Bench.] His successor shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way) or the first such general election after one year after the ocurrence of the vacancy in any other way than through expiration of such term. Except in case of reappointment of a judge upon expiration of his term of fifteen years, no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected.' (Italics and brackets supplied. Bracketed portion was added by amendment proposed by Act of 1945, ch. 703 and ratified at the 1946 election; remainder constitutes section 5 amended as proposed by Act of 1943, ch. 772 and ratified at the 1944 election, effective January 1, 1945. Italicized words were not contained in corresponding provisions of section 5 before 1944 amendment.)

Judge Melvin died on December 14, 1945. In 1946 Judge McWilliams was appointed his successor as a judge of the Fifth Circuit. Constitution, Art. 4, secs. 5, 21. Judge McWilliams reisgned as of March 1, 1948. Judge Anderson was appointed his successor and qualified on March 9, 1948. Under section 5 Judge Anderson is to hold office 'until the election and qualification of his successor * * *. His successor shall be elected' at the first biennial Congressional election ' after one year after the occurrence of the vacancy.' Appellant contends that: 'the occurrence of the vacancy' was at Judge Melvin's death, not at Judge McWilliam's resignation; there was 'a recurrence of the vacancy' at Judge McWilliam's resignation; but 'the occurrence of the vacancy' does not include 'every occurrence or recurrence of a vacancy'--only the first 'occurrence' of a vacancy, not any subsequent 'recurrence'. We think this contention is contrary to the plain meaning of the words, and the evident purpose, of the 1944 amendment.

'Recur' means 'occur again.' In this context, 'every occurrence of recurrence' means every first or subsequent occurrence. In section 5 the first sentence gives to 'the occurrence of the vacancy' in the second sentence the broadest possible definition, both as to (a) number, ' every occurrence or recurrence,' and (b) nature, 'through death, resignation, removal, disqualification by reason of age or otherwise, [or expiration of the term of fifteen years] of any judge, or creation of the office of any judge, or in any other way.' The italicized words were new in the 1944 amendment. It has been questioned whether 'vacancy,' without definition, would include a newly created office. Delehanty v. Britt, 163 App.Div., N.Y., 736, 149 N.Y.S. 97; contra, Richardson v. Young, 122 Tenn. 471, 125 S.W. 664; Walsh v. Commonwealth, 89 Pa. 419, 33 Am.Rep. 771. On the other hand, there would be no occasion to mention 'recurrence' of a vacancy if a judge than appointed were not, like every other appointed judge, subject to the minimum period for election of his successor. The power to appoint upon recurrence of a vacancy is not new, but the tenure is. 'The occurrence of the vacancy' in the second sentence refers to the whole, not part, of the definition in the first sentence. The two sentences are co-extensive. Shortly stated, the first provides that upon every occurrence of a vacancy in any way, a judge shall be appointed, to hold office until the election and qualification of his successor; the second provides, that his successor shall be elected after one year after the occurrence of the vacancy.

The effect and purpose of the amendment is also clear. By making the provision for appointments to fill vacancies all-inclusive and providing for biennial, instead of quadrennial elections, but only after one year after the latest vacancy, the electorate at every election are given, approximately, at least one year and less than three of experience with an appointed sitting judge, instead of none at all or any period less than four years. This purpose is not impaired by making the occurrence of the vacancy the point of time and ignoring such accidents as delays in appointment or qualification and the variation in the date of election day.

The meaning and purpose of the 1944 amendment, with respect to the...