Nesbitt v. Fallon

• Decision Date: 11 January 1954
• Docket Number: No. 100,100
• Citation: 102 A.2d 284,203 Md. 534
• Parties: NESBITT v. FALLON.
• Court: Maryland Court of Appeals

Page 534

203 Md. 534

102 A.2d 284

NESBITT v. FALLON.

No. 100.

Court of Appeals of Maryland.

Jan. 11, 1954.

C. Maurice Weidemeyer, Annapolis, (Basil E. Moore, Jr., Louis M. Strauss and Morris Turk, Annapolis, on the brief), for appellant.

Hyman Ginsberg, Baltimore (Ginsberg & Ginsberg, Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from an order of the Circuit Court for Anne Arundel County granting the appellee, Elton Fallon, petitioner below, a writ of mandamus commanding the appellant, George F. Nesbitt, to vacate the office as a member of the Board of License Commissioners for Anne Arundel County (the Board), and ordering the chairman of the Board to recognize the petitioner, Elton Fallon, as a member, and further directing the County Commissioners of Anne Arundel County to pay the appellee his salary as a member of the Board from the first Monday in May, 1953.

The facts of the case substantially follow. On November 26, 1952, when the Senate of Maryland was not in session, Governor Theodore R. McKeldin appointed as members of the Board: Albert Clauss, Henry Klug and George F. Nesbitt, for a term of two years beginning on December 1, 1952. George F. Nesbitt took the oath of office on December 5, 1952, and thereafter began to serve as a member of the Board. When the General Assembly of Maryland met in January, 1953, for its regular session, the Governor submitted the names of the three men, previously appointed by him, to the Senate for confirmation as members of the Board. The appointments of Albert Clauss and Henry Klug were confirmed by the Senate but that of George F. Nesbitt was rejected. Thereafter the Governor submitted the name of the appellee, Elton Fallon, to the Senate and he was confirmed as a member of the Board. On April 8, 1953, the Governor issued a commission to the appellee, who took the oath of office before the Clerk of the Circuit Court for Anne Arundel County on April 10, 1953. The commission recited that Fallon had been appointed for the 'remainder of two years from December 1, 1952.'

The appellee appeared at the next regular meeting of the Board after he was appointed for the purpose of serving as a member. He was notified by the chairman that the Board recognized Mr. Nesbitt as a member and that the appellee would not be permitted to participate in any of its meetings. The appellee, however, attended further meetings of the Board, but was not permitted to act as a member. Mr. Nesbitt continued to act. Neither the appellee nor Mr. Nesbitt were paid any salary by the County Commissioners because of the dispute as to membership on the Board. On August 6, 1953, the appellee filed a petition for a writ of mandamus to compel Mr. Nesbitt to vacate the office, to command the chairman to recognize the petitioner as a member, to command the County Commissioners for Anne Arundel County to recognize petitioner as a member of the Board, and to pay his salary as such member. From an order granting the relief prayed, the appellant appeals here.

The appellee has filed in this Court a motion to dismiss the appeal. He alleges that as a result of the writ of mandamus issued below, at the meeting of the Board held on Tuesday, October 20, 1953, Albert Clauss, the Chairman, recognized the appellee, Elton Fallon, as a member of said Board and allowed him to perform as such member all the lawful duties and functions of his office. On October 30, 1953, George F. Nesbitt entered an appeal to this Court from the granting of the writ of mandamus on October 15, 1953. Appellee contends that as the commands of the writ of mandamus have been performed by the recognition of Elton Fallon, the appellee, as a member of the Board, where he was allowed to perform as such member all the lawful duties and functions required by his office, the appeal of George F. Nesbitt has become moot. Also that George F. Nesbitt has no interest in this appeal because, even if Elton Fallon is not entitled to the office, the said George F. Nesbitt would not be entitled thereto under any circumstances. However, it appears from the record before us that the trial judge stayed the writ of mandamus upon the filing of a bond in the amount of $1,000 by the appellant. It is also stated, without denial, that after the staying of the writ of mandamus, the Board, on November 3, 1953, unseated the appellee, Elton Fallon, as a member of the Board and reseated appellant, George F. Nesbitt, pending the review of the order by this Court. It is therefore evident that the question is not moot but requires a final decision here.

The question before us is whether the appellant or the appellee is entitled to the office in question. Appellant has no quarrel with the facts stated in the opinion of the lower court. He disagrees, however, with the conclusions of law therein. Chap. 84, § 390C, of the Acts of the Extraordinary Session of the General Assembly in 1933, provided:

'If it shall appear from the results of said election that a majority of the votes in any of said districts are in favor of the sale of said alcoholic beverages, the Governor shall appoint a Board of three License Commissioners for Anne Arundel County, who shall receive an annual salary of Two Hundred Dollars ($200.00) per annum, payable by the Board of County Commissioners for Anne Arundel County out of the proceeds of liquor license fees in said County. Said Board shall exercise all of the powers conferred upon such a Board, and the members shall possess all of the qualifications prescribed, by Chapter 2 of the Acts of the Extraordinary Session of the General Assembly of 1933. They shall hold their office for the term of one year from the date of their appointment and thereafter shall be appointed by the Governor for a term of two years as prescribed by said Chapter 2 of the Act aforesaid and be subject to removal as provided in said Act. The result of the election to be held in accordance with this Act shall become effective on December 1, 1934.'

The result of the aforesaid election was in favor of the sale of alcoholic beverages. As provided therein, the then Governor appointed three persons as members of the Board for a term of one year beginning on December 1, 1934. These appointments were submitted to and confirmed by the 1935 Session of the Senate. Successors were appointed for terms of two years beginning on December 1st; subsequently all appointments began on December 1st, and were later submitted to and confirmed by the Senate. The only exceptions were in the appointments for the terms beginning on December 1, 1944, when apparently no appointments were made, and on December 1, 1950, when the appointments were not submitted to the General Assembly for consideration. No explanation appears for these omissions. In 1952 the Governor appointed as aforesaid Messrs. Clauss, Klug and Nesbitt, with the results which have been stated.

By Chapter 999 of the Acts of 1943, effective April 21, 1943, the General Assembly specifically repealed Section 390C, Chap. 84 of the Acts of the Special Session of 1933, hereinbefore quoted, and enacted new sections to be added to Article 2B of the 1939 Code. Section 60 A, Chap. 999 of the Acts of 1943, provided, among other things, that Section 60, Art. 2B of the Annotated Code of Maryland, 'shall apply to Anne Arundel County'. Section 60, Art. 2B of the 1939 Code, had provided in part that:

'(Boards of License Commissioners--Appointments and Qualifications.) The Governor, biennially, by and with the advice and consent of the Senate, if in session, and if not in session, then the Governor alone, shall appoint in Baltimore City, and [counties named, not including Anne Arundel] three persons who shall constitute and be styled 'the Board of License Commissioners for Baltimore City or ..... County,' as the case may be.'

This Section also specified the qualifications of the Board members. Section 60A, Ch. 999, Acts of 1943, supra, therefore added Anne Arundel County to Section 60, Art. 2B, supra.

By Ch. 501, Acts of 1947, the Alcoholic Beverages law, 1939 Code, Art. 2B, and all amendments and additions thereto, were specifically repealed, and a new beverage law was enacted thereby, now Art. 2B, 1951 Code. Section 130, Ch. 501, Acts of 1947, now Section 139, Art. 2B, 1951 Code, now provides:

'(Appointed By Governor and Senate.) (a) (Qualifications.) For the jurisdictions in which this section is effective, the Governor, biennially, by and with the advice and consent of the Senate, if in session, and if not in session, then the Governor alone, shall appoint three persons who shall constitute and be styled 'The Board of License Commissioners for Baltimore City or ..... County', as the case may be. In making said appointments, the Governor shall designate one of the appointees in Baltimore City and each of said Counties to be the Chairman of the respective Boards. Said Commissioners shall be residents and voters of Baltimore City or the respective Counties, as the case may be, and they shall be men or women of high character and integrity and of recognized business capacity. In the case of any vacancies in the number of said License Commissioners in Baltimore City or in any County occurring when the Legislature is not in session, the Governor shall appoint some eligible person to fill the vacancy during the remainder of the term of office of the person originally appointed. * * * (g) (Applicability.) This section shall be applicable in Baltimore City, and (except as otherwise provided) in Allegany, Anne Arundel, * * *' and other counties mentioned.

The appellant argues that when Section 390C, Acts of 1933, was repealed by Ch. 999, Acts of 1943, there then was in existence a Board duly created under Section 390C, supra; at that time there was a definite need for the Board; and there was no law taking away the duties from the Board. He...