Smoot v. Somerville

• Decision Date: 13 July 1882
• Citation: 59 Md. 84
• Parties: ANDREW J. SMOOT v. ALEXANDER SOMERVILLE.
• Court: Maryland Court of Appeals

59 Md. 84

ANDREW J. SMOOT v. ALEXANDER SOMERVILLE.

Court of Appeals of Maryland

July 13, 1882

APPEAL from the Baltimore City Court.

This was an application by the appellant for a mandamus to require the appellee to deliver to the petitioner possession of the office of Inspector of tobacco for Warehouse number two in the City of Baltimore, together with the said warehouse, and all the tobacco, books, furniture and appurtenances of every kind whatever, pertaining to the same. The commission under which the appellant claimed was the following:

THE STATE OF MARYLAND,

To Dr. Andrew Jackson Smoot,

of Charles County, Esquire, greeting:

Be it known, that reposing especial trust and confidence in your judgment and integrity, by and with the advice and consent of the Senate, you are hereby appointed Tobacco Inspector, at Warehouse No. 2, in Baltimore City, vice Alexander Somerville, whose term has expired, to hold the said office for the term of two years, from the first Monday of March 1882, or until you shall be duly discharged therefrom, and to execute the duties thereof with diligence and fidelity, and without favor, affection or partiality, according to law.

(Seal's Given under my hand, and the Great Seal of the State of Maryland, at

Place.) the City of Annapolis, on this tenth day of April, in the year of

our Lord eighteen hundred and eighty-two.

WILLIAM T. HAMILTON.

By the Governor,

JAMES T. BRISCOE,

Secretary of State.

The answer filed by the appellee was demurred to by the appellant, and by agreement a pro forma order was passed overruling the demurrer, and refusing the mandamus.

From this order the present appeal was taken. The facts involved are stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STONE, GRASON, ALVEY ROBINSON, IRVING, and RITCHIE, J.

David S. Briscoe, and Bradley T. Johnson for the appellant.

Joseph A. Wilson, and Albert Ritchie, for the appellee.

GRASON J., delivered the opinion of the Court.

The determination of the questions, presented on this appeal, depends upon the construction of the eleventh, thirteenth and fourteenth sections of the second Article of the Constitution of this State. The thirteenth section provides that "All civil officers appointed by the Governor and Senate, shall be nominated to the Senate within fifty days from the commencement of each regular session of the Legislature; and their term of office, except in cases otherwise provided for in this Constitution, shall commence on the first Monday of May next ensuing their appointment, and continue for two years (unless removed from office,) and until their successors, respectively, qualify according to law; but the term of office of the Inspectors of Tobacco shall commence on the first Monday of March next ensuing their appointment."

The eleventh section provides that, "In case of any vacancy, during the recess of the Senate, in any office which the Governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue in force until the end of the next session of the Legislature, or until some other person is appointed to the same office, whichever shall first occur; and the nomination of the person, thus appointed during the recess, or some other person in his place, shall be made to the Senate within thirty days after the next meeting of the Legislature."

By the fourteenth section it is provided that "If a vacancy shall occur, during the session of the Senate, in any office which the Governor and Senate have the power to fill, the Governor shall nominate to the Senate, before its final adjournment, a proper person to fill said vacancy, unless such vacancy occurs within ten days before said final adjournment."

The thirteenth section, above quoted, is exactly similar to the fourteenth section of the Constitution of 1851, and to the sixteenth section of the Constitution of 1864, except with respect to the time at which the term of office of Inspectors of Tobacco is to commence.

From the language employed in these sections it is manifest that the power of appointment to all civil offices was intended to be, and was, confided, not to the Governor alone, but to the Governor and Senate, and that the Governor has no power to appoint to office, without the advice and consent of the Senate, except to fill vacancies in offices, which may occur during the recess of the Senate, or, as provided by the fourteenth section, within ten days before its final adjournment. It has been contended that, inasmuch as the term of office of tobacco inspectors commences on the first Monday in March and is to continue two years, a vacancy occurs immediately upon the expiration of the term of two years; and such would be the case were it not for the further provision of the thirteenth section by which all officers are to continue in office until their successors, respectively, qualify according to law. " It is true that the Governor may appoint, by and with the advice and consent of the Senate, at a regular session of the Legislature, a successor to an incumbent in office, and the successor, so appointed, would be entitled to take possession, and enter upon the discharge of the duties of the office, immediately upon the expiration of the term of two years of his predecessor, and in such case there would be no vacancy. But even if no appointment be made by the Governor and Senate, the thirteenth section still guards against a vacancy, by providing that the incumbent shall remain in office until his successor "shall qualify according to law," which cannot be, until one shall have been appointed in accordance with the requirements of the thirteenth section; that is, by the appointment of the Governor, by and with the advice and consent of the Senate. If a successor be not so appointed, the incumbent will continue in office, not as a mere de facto officer, but as an officer de jure by the express language of the thirteenth section. These views have been sanctioned by this Court in the cases of Watkins vs. Watkins, 2 Md., 341, and Marshall vs. Harwood, 5 Md., 433. The same construction has been given to similar provisions in the Constitutions and laws of other States of the Union. See State vs. House, 25 Ohio, 588; Tappan vs. Gray, 9 Paige, 507; Commonwealth vs. Hanley, 9 Pa., 513; Brady vs. Howe, 50 Miss., 607; People vs. Bissell, 49 Cal., 407; State vs. Lusk, 18 Mo., 333; Walker, et al. vs. Ferrill, 58 Georgia, 516, 517, 518. In the convention of 1851, while a section, from which section thirteen of the present Constitution seems to have been copied, was the subject of discussion, the chairman of the committee on the Executive Department stated that the provision of that section, by which incumbents were to continue in office until their successors should be qualified according to law, was inserted for the purpose of preventing detriment to the public interests from interregnums, whether arising from the refractory temper of the Governor, or the Senate, or both. 1 vol. Debates, 468. The convention which framed the present Constitution seems to have been unwilling to confer the power of appointment to office upon the Governor alone, excepting cases of absolute necessity, by confining such power to filling vacancies, which might occur either during the recess of the Senate, or within ten days before its final adjournment, and even in such cases, he is required to nominate to the Senate, within thirty days after the meeting of the next Legislature, the person so appointed, or some other person, for the office; and the commission of the person appointed to fill the vacancy, is limited to the end of the next session of the Legislature after said appointment, or to the time of the appointment and qualification of the person appointed by the Governor and confirmed by the Senate, whichever may first occur; so that in no event can the person appointed to fill a vacancy, hold his commission and perform the duties for any longer time than the session of the Legislature, which meets next after his appointment, while it is evidently the intention of the Constitution that he shall remain in office as short a time as possible, consistently with the convenience of the Governor and Senate, by requiring his nomination or that of some other person to be made to the Senate in thirty days after the meeting of the Legislature.

The power and...