McCurdy v. Jessup

• Decision Date: 22 June 1915
• Docket Number: 21.
• Citation: 95 A. 37,126 Md. 318
• Parties: McCURDY v. JESSUP, Game Warden.
• Court: Maryland Court of Appeals

95 A. 37

126 Md. 318

McCURDY v. JESSUP, Game Warden.

No. 21.

Court of Appeals of Maryland

June 22, 1915

Appeal from Circuit Court of Baltimore County; Allan McLane, Judge.

Mandamus by Alexander C. McCurdy against George Jessup, Chief Game Warden, and the County Commissioners for Baltimore County. From a judgment refusing the writ, petitioner appeals. Affirmed, and cause remanded.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Henry H. Dinneen and Harry M. Benzinger, both of Baltimore, for appellant. T. Scott Offutt, of Towson (Edward H. Burke, of Baltimore, on the brief), for appellees County Commissioners. Noah E. Offutt and William Grason, both of Towson, for appellee Jessup.

BRISCOE J.

By section 17 of chapter 338 of the Acts of 1914, it is provided that the county commissioners of Baltimore county shall on or before the 1st day of May, A. D. 1914, and every two years thereafter, appoint a game warden for Baltimore county, who shall be recommended to them by the Baltimore County Game and Fish Protective Association, incorporated March 16, 1911 subject to the constitution and by-laws of said association and who shall hold office for two years, or until his successor shall have been appointed and qualified, whichever shall first occur. The person so appointed chief game warden for Baltimore county shall have been a resident and voted in said county for not less than four years next preceding his appointment. The act further provides the powers and duties of the game warden, fixes his salary, requires him to give bond in the penalty of $4,000, and, before entering upon the duties of his office, to take and subscribe the oath prescribed by the sixth section of the first article of the Constitution of the state. He may be removed by the county commissioners, upon written charges upon neglect or improper discharge of the duties of the office.

On or about the 1st of May, 1914, the Baltimore County Game and Fish Protective Association presented and recommended to the county commissioners of that county the name of Dr. Alexander C. McCurdy, of Baltimore county, the appellant here, for appointment for chief game warden of the county, under the provisions of the act. The county commissioners refused to appoint him, but appointed one George Jessup, the appellee who had not been recommended or suggested by the association, and this is an application by the petitioner for a writ of mandamus to compel the appellee county commissioners to appoint and commission him as such game warden. The court below, upon hearing, held section 17 of chapter 338 of the act of 1914 to be invalid and unconstitutional, denied the relief sought, and dismissed the petition with costs. From that order, this appeal has been taken.

As the validity or invalidity of section 17 of the act of 1914 is the vital question presented by the record, we shall dispose of it first. It is clear, we think, that the meaning and purpose of section 17 of the act was to require the county commissioners of Baltimore county to appoint, as game warden for that county, the person who should be recommended to them by the Baltimore County Game and Fish Protective Association, if he possessed the qualifications required by the act, and was brought within the provisions of the act.

The court below held section 17 of the act to be invalid upon the ground: First, that it was an invalid delegation of legislative power to a private corporation; and, second, that it was a special law in the interest of a few members of an association and not within the police power of the Legislature.

It is conceded that the Game and Fish Association of Baltimore county was duly incorporated under the laws of the state on the 10th day of March, 1911, and is subject to the limitations relating to corporations, contained in the general laws of the state, and that the recommendation of the person for appointment as game warden must be made as required by the statute, "subject to the constitution and by-laws of the association."

By section 1 of article 25 of the Code it is provided that:

"The county commissioners of each county in this state are declared to be a corporation and shall have full power to appoint *** all other officers, agents and servants required for county purposes not otherwise provided for by law or by the Constitution."

In O'Brian v. County Commissioners, 51 Md. 15, this court said that the county commissioners of each county of the state are a body clothed with a limited and special jurisdiction, deriving their authority only from statute, and charged with the execution of the powers which the statute confers upon them; and O'Brian's Case has been approved by numerous other decisions in this court announcing the same doctrine. Hartford Co. v. Hause, 106 Md. 439, 67 A. 273. It was therefore clearly competent for the Legislature by the act of 1914 to create the office of game warden for Baltimore county and to vest the appointment in the county commissioners of that county.

By section 17d of the act it provided that all acts and parts of acts, inconsistent therewith, sections or parts of articles of the Code of Public or Local Laws of the state, be and the same are hereby repealed.

Was, then, the limitation upon the appointment of game warden, as fixed by the act of 1914, an invalid exercise of legislative power and repugnant to the Constitution of the state? In other words, has the Legislature the power and authority to require the county commissioners of Baltimore county to appoint to office a person recommended by a corporation in the manner and as provided by this act?

In 29 Cyc. 1369, the general rule upon this subject is stated, as supported by authority:

"The method of filling offices is to be determined by the Legislature, in the absence of any constitutional provision on the subject; and the Legislature may, in the absence of any such provisions, provide that offices shall be filled by private corporations chartered by the authority of the state government, or by voluntary associations of individuals."

But, where the Constitution has provided the method of filling offices, the Legislature may not provide for filling them in any other manner than that directed by the Constitution. 23 A. & E. E. of Law, 340, and cases there cited.

In Davis v. State, 7 Md. 151, 61 Am. Dec. 331, this court, in dealing with the legislative power to designate who shall fill an office, said:

"When the Legislature has created an office by act of assembly, the Legislature can designate by whom and in what manner the person who is to fill it shall be appointed."

In Scholle v. State, 90 Md. 729, 46 A. 326, 50 L. R. A. 411, we adopted the language used in Davis v. State, supra, and held that the method of the appointment of the medical boards did not affect the validity of the law. Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; Clark v. Harford Association, 118 Md. 608, 85 A. 503; Regents' Case, 9 Gill & J. 383, 31 Am. Dec. 72; State v. B. & O. R. R., 12 Gill & J. 438, 38 Am. Dec. 319; Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 394; Chicago R. R. v. Nebraska, 170 U.S. 57, 18 S.Ct. 513, 42 L.Ed. 948; Sturgis v. Spofford, 45 N.Y. 446; In re Bulger, 45 Cal. 553.

We cannot therefore concur in the conclusion reached by the learned judge below that section 17 of the act of 1914 was an invalid exercise of legislative power. On the contrary, we hold that his ruling in this respect was error, and that the method and mode provided by the statute for the appointment of the game warden was legal and valid. The other objections urged against the statute are also without force, and do not render the act void or in violation of any constitutional prohibition.

It is a plain and undoubted rule of construction that acts of assembly will be held to be valid and constitutional, unless so manifestly in conflict with some provision of the Constitution of the state that no discretion is left to the courts but to decide otherwise. Mayor of Balto. v. State, 15 Md. 376, 74 Am. Dec. 572; Beasley v. Ridout, 94 Md. 650, 52 A. 61.

This brings us to the second question arising on the record, and that is whether the court below was right in refusing the application for a mandamus upon the ground that the petition was defective and insufficient in its allegations of facts, and did not bring the petitioner within the provisions and requirements of the act of 1914,...