Smith v. Thursby
| Decision Date | 14 February 1868 |
| Parties | WILLIAM P. SMITH and CHARLES A. DAVIS v. ROBERT A. THURSBY. |
| Court | Maryland Court of Appeals |
APPEAL from the Superior Court of Baltimore City.
The appellants filed their petition in the Superior Court of Baltimore city, on the 29th November, 1867, claiming to be the duly appointed, commissioned and qualified constables of the nineteenth ward of said city, and alleging that the appellee, was unlawfully exercising said office, and praying for a writ of mandamus, commanding him to vacate the same. Upon this petition, a rule to show cause was granted and on the 4th of December, 1867, the appellee filed his answer to the same. The parties then agreed, in writing, to the following statement of facts: On the 8th of October 1867, the appellants were appointed by the Mayor and City Council of Baltimore, constables for the nineteenth ward of said city, for two years. They were commissioned, gave bond and took the oaths of office prescribed by the Constitution and the laws, and entered upon the discharge of the duties pertaining to the said office of constable. They had also on the 18th November, 1865, under section 47, Article 4, of the Constitution of 1864, been duly appointed and commissioned Smith as a constable for the fifteenth ward, and Davis as a contable for the nineteenth ward, to serve for two years from the date of their commissions, or until their successors were appointed and qualified; they had bonded and qualified according to the existing Constitution, and held office as constables on the 8th of October, 1867, and had not resigned said office at that time, nor at any time since. The Mayor and City Council of Baltimore, elected under the provisions of the Constitution of 1867, on the 21st of November, appointed, and the Mayor commissioned the appellee as constable of the nineteenth ward of said city, to hold the said office for two years from the said 21st November, 1867, and he qualified and bonded under the present Constitution and Laws, and thereupon entered on the discharge of his duties as such constable. Upon the petition and answer and agreed statement of facts, the Court, after argument of counsel on both sides, passed an order dismissing the petition, and from this order the present appeal was taken.
The cause was argued before BARTOL, C.J., NELSON, STEWART, BRENT, GRASON and MILLER, J.
Milton Whitney and William S. Waters for the appellants, argued:
First. As to the reason assigned in the answer, that the provision for appointing constables, is by the old and the new Constitutions identical; and that forasmuch as the appellants were appointed constables under the old Constitution, on the 18th November, 1865, for two years, and as that term had not expired when the appellants were appointed on the 8th October, 1867, the right to appoint under the new Constitution had not then accrued, and that such right did not accrue until after the 18th November, 1867, when the old term would run out, and that this term could not be anticipated.
The Constitution is a law, and the only distinction between it and other laws is, that it is a paramount law. The effect of the adoption of the new Constitution upon the former Constitution is, to abrogate and annull it. The body of laws however remain, except in so far as they are expressly or impliedly repealed by the new Constitution. The Commonwealth vs. Collins, 8 Watts, 336 349; Cass vs. Dillon, 2 Ohio, (N. S.,) 607; Commissioners of New Town Cut vs. Seabrook, 2 Strob., L. R., 565; Sedgwick on Statutory and Constitutional Law, sec. 129.
Upon the adoption of the new Constitution the old ceased to have vitality; all officers holding by virtue of its provisions fell with it, and, but for the provision in the new, continuing them, they would cease to have power. The constables come within the scope of this principle.
Article XV, sec. 3, of the present Constitution provides, that "The Governor, and all officers, civil and military, now holding office under this State, whether by election, or appointment, shall continue to hold, exercise and discharge the duties of their offices, (unless inconsistent with, or otherwise provided in this Constitution,) until they shall be superseded under its provisions, and until their successors shall be duly qualified."
Constables are continued in office by the terms of this provision, as they are officers of the State.
The question is, how long and upon what terms they are continued. The plain answer is, they hold their offices until they are superseded by the machinery provided in the new Constitution. When the powers given by that instrument are so exerted as to bring new officers into being, the old go out of power,--they are superseded. Watkins vs. Watkins, 2 Md. Rep., 341; 24 Md. Rep., 202.
The grant of power to the Mayor and City Council of Baltimore to appoint constables is general; it vests in them by virtue of the Constitution, without limit as to time. It may, therefore, be exercised at any time. 1 Story on the Constitution, secs. 424, 425.
The view of the Constitution thus presented, is derived from the plain import and ordinary meaning of the words used in the instrument, and, in interpreting a Constitution which has been established by the direct vote of the people, this is the paramount rule to be observed. State vs. Mace, 5 Md. Rep., 351; Bandel vs. Isaac, 13 Md. Rep., 223; Gibbons vs. Ogden, 9 Wheaton, 1; 1 Story on the Constitution, secs. 424, 425, 426, 427; Greencastle Township vs. Black, 5 Ind., ( Porter,) 557; Sedgwick on Statutory and Const. Law, 129.
By reference to other parts of the Constitution, it will be seen that when the design was to extend the term of the officer to the end of his old term, the general continuing clause was not relied on solely. Art. 2, sec. 2.
Nowhere does the general continuing clause operate to continue an officer to the end of his term. The fact that the provision for appointing the officers is the same in both Constitutions can make no difference. It is merely accidental. Art. 4, sec. 42, in relation to Justices of the Peace; Art. 6, secs. 1 and 2, of Con. of 1864 and 1867; see Art. 6, of 1867, in connection with Art. 6, of 1864; see in connection, Art. 4, sec. 14, of Con. 1851, and Art. 4, sec. 29, of Con. of 1864; Art. 4, sec. 25, of Con. of 1867; see provisions for continuing officers in Con. of 1864.
In the Constitutions of 1851 and 1864, the general provisions continuing all officers are different from those in the present Constitution. The old Constitution provided for the continuing of the officers, "according to the present tenure," and this created the doubt under the old. These words are left out of the present Constitution; hence, there is no longer doubt. But under the old, judicial decisions have fully determined the meaning of the continuing clause, to be according to the view here taken. Con. of 1851, Art. 10, sec. 2; Con. of 1864, Art. 12, sec. 6; Con. of 1867, Art. 15, sec. 3; Watkins vs. Watkins, 2 Md. Rep., 341; Bradford vs. Jones, 1 Md. Rep., 370.
But if the newly appointed constables were old constables, their acceptance of the new commissions was, in law, a resignation of the old term, and in case of vacancy, the new appointments must be for a new term, under the new Constitution, because the provision continuing officers applies only to those in office when the new Constitution went into effect. Either the vacancy must be filled for the whole term, or not at all. The Constitution does not continue the term, but the officers.
But concede the office was not vacant at the time of the appointment, it was not necessary to wait until the old term had expired to make the appointment. Pratt vs. Allen, 13 Conn., 119; Marshall vs. Harwood, 5 Md. Rep., 423.
Second. The ground assumed by the Court below: Were the powers vested by the Constitution in the Mayor and City Council of Baltimore, in abeyance until the election, provided for by the Constitution, of city officers?
The petition of the appellants takes the ground that there has been no interregnum in the city government; that the persons who held office as Mayor and Council, when the Constitution went into effect, were continued by that instrument, either by express provision, or general implication. It is true the Mayor and Council are mere creatures of the statute law, and may not possibly be referred to in the general continuing clause in the new Constitution, but, as the Constitution, by express provision, continues all the statute law, both of the city and State, this express provision will continue these officers in power. But this express provision is not necessary, because the Constitution does not repeal the statute law, except as it may be inconsistent therewith. Art. 5, Bill of Rights; Art. 11, sec. 8; Code, Public Local Laws, Art. 4, secs. 1 to 33, inclusive.
The question is, what is the object designated as "The Mayor and City Council of Baltimore," in Art. 4, part 6, sec. 42? The city of Baltimore is incorporated by law. The corporate name is "The Mayor and City Council of Baltimore." By that designation every statute referring to them invests them with power. Code, Public Local Laws, Art. 4, City of Baltimore, sec. 1 to 33; Angell & Ames on Corporations, sec. 18.
The mode in which they exercise all powers confided to them by law, when no special mode is expressly provided in the grant of power, is prescribed by general statute. When power is given them to appoint to office, and the mode of making the appointment is not designated, a general statute provides for the exigency. Code, Public Local Laws, Art. 4, secs. 25 and 33.
The Mayor and City Council of Baltimore is a public corporation vested with the franchise of governing the city of Baltimore...
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