Robb v. Carter

• Decision Date: 27 May 1886
• Citation: 4 A. 282,65 Md. 321
• Parties: ROBB, REGISTER, ETC., v. CARTER.
• Court: Maryland Court of Appeals

4 A. 282

65 Md. 321

ROBB, REGISTER, ETC., v. CARTER.

Court of Appeals of Maryland

May 27, 1886

YELLOTT J.

In the court of common pleas of Baltimore city a petition was presented by the appellee asking for the issuance of a peremptory writ of mandamus requiring the appellant who is the register of said city, to pay to the petitioner the salary claimed to be due him for the performance of the duties of city solicitor during the month of March, 1886. An ordinance of the city requires that "the mayor, by and with the advice and consent of the convention of the two branches of the city council, shall annually, in the month of February, appoint a member of the Baltimore bar to be the city counselor, and another member of the same bar to be the city solicitor." The terms of office commence on the first day of March immediately following the appointments and continue for one year, and there is no express provisions in any ordinance that the persons so appointed shall hold until the appointment and qualification of their successors. The appellee had been appointed solicitor in February, 1885 and the present mayor having nominated him in February, 1886 the nomination was rejected by the city council. On the fifteenth day of March, 1886, he was again nominated by the mayor, and rejected by the council; and, there having been no appointment subsequently made, he has continued to perform the duties of the office, and claims the regular monthly compensation payable to the city solicitor. This appeal is from an order pro forma that the peremptory writ of mandamus issue as prayed.

The first question properly before this court, and now to be determined, relates to the right of the appellee to continue in office until another person has been appointed to succeed him; the appointment being for one year, and there being no express provision authorizing him to hold over until his successor has been duly qualified, and is prepared to enter upon the performance of the duties appertaining to the office. In an effort to arrive at a clear comprehension of this question, the inutility of seeking for information from the reported decisions of the English courts must be obvious. In England offices are usually designated as incorporeal hereditaments, "granted by the crown, and the subjects of vested or private interests;" and, anterior to the enactment of the statute of 5 & 6 Edw. VI. c. 16, could, with some few exceptions, be sold and transferred like any other property. 2 Bl. Comm. 37. In this country a public office cannot be the property of the incumbent, because it belongs to the sovereign people who created the government. In the declaration of organic principles, prefixed to the instrument creating the government of this state, those holding the most important offices are declared to be "the trustees of the public." The same designation necessarily applies to all public functionaries. Therefore every office created either by the constitution, or by the laws authorized by that instrument, is a public trust, created for the public benefit. Where an office is of statutory creation, the legislative department of the government may deem it unnecessary, and may abolish it; but courts must presume that every office in existence is necessary; that the public welfare is promoted by the performance of the duties attached to it; and that those duties should be discharged, without intermission, while the office continues to exist.

The office being a trust created for the public good, it follows that a cessation of the benefits derived from it ought not to be sanctioned because of a failure to make an appointment by those whose duty it is to appoint. No such failure should be permitted to cause a temporary extinction of the trust. To guard against this evil, there is usually a provision for holding over until the appointment and qualification of a successor; but it has been held in some of the states that in the absence of any such provision, the incumbent should hold over until another person has been appointed and qualified, and it is intimated that he may reasonably presume that it is his duty to do so; for it must be borne in mind that an official is frequently the custodian of important books, papers, and other property, the care of which ought not to be abandoned, and which he cannot properly...