State Tax Commission v. Harrington

• Court: Maryland Supreme Court
• Writing for the Court: PATTISON, J.
• Citation: State Tax Commission v. Harrington, 126 Md. 157, 94 A. 537 (Md. 1915)
• Decision Date: 12 May 1915
• Docket Number: 48.
• Parties: STATE TAX COMMISSION v. HARRINGTON, State Comptroller.

94 A. 537

126 Md. 157

STATE TAX COMMISSION v. HARRINGTON, State Comptroller.

No. 48.

Court of Appeals of Maryland

May 12, 1915

Appeal from Circuit Court, Anne Arundel County.

Petition for mandamus by State Tax Commission against Emerson C Harrington, comptroller of the State. From an order sustaining a demurrer to the petition, petitioner appeals. Affirmed.

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

Isaac Lobe Straus, of Baltimore (Charles C. Wallace, of Baltimore on the brief), for appellant. Edgar Allan Poe, Atty. Gen for appellee.

PATTISON J.

This is an appeal from an order of the circuit court for Anne Arundel county sustaining a demurrer to the appellant's petition and dismissing said petition. The prayer of the petition asks that a writ of mandamus be issued directed to the defendant, Emerson C. Harrington, comptroller of the treasury of the state of Maryland, commanding and requiring him to pay to the petitioner, the State Tax Commission, the sum of $1,750, consisting of two items each for the amount of $875, for the payment of the salaries of its general counsel, Edward M. Hammond and William W. Beck, for the period of seven months, ensuing the 1st day of June, 1914.

The facts are undisputed. The State Tax Commission, created and established by chapter 841 of the Acts of 1914, on or about the 1st day of June, 1914, under the alleged authority conferred upon it by the provisions of said act, appointed the said Edward M. Hammond and William W. Beck general counsel to said Commission. The said Edward M. Hammond and William W. Beck are now, and were at the time of the passage of said act of 1914, and at the time of their appointment as general counsel to said Commission, state senators from Howard and Kent counties, respectively. The demurrer to the petition assails the validity of the said appointment of Senators Hammond and Beck, first, because, as urged by the appellee, it is in violation of section 17 of article 3 of the Constitution, which provides that "no senator or delegate, after qualifying as such, notwithstanding he may thereafter resign, shall during the whole period of time for which he was elected be eligible to any office which shall have been created, or the salary or profits of which shall have been increased, during such term;" and, second, because the provision of said act authorizing and empowering the Commission to "appoint an attorney at law of the state of Maryland to be and act as the general counsel of said Commission," conferred no power upon it to appoint more than one attorney as such general counsel, and that, in appointing both Senators Hammond and Beck, it exceeded the power so conferred upon it.

We will consider and decide these questions in the order in which they are presented.

We will first determine whether "general counsel" to the Commission is an office, within the meaning of said section 17 of article 3 of the state Constitution. So far as we have been able to find, this court has never defined or has it been called upon to define what is or what is not an office, within the meaning of this section of the Constitution. It has, however, determined, in a number of cases, what is and what is not an office, within the meaning of other sections of the Constitution and certain statutes of the state. As it is easier to conceive the general requirements of an office than to express them with precision in a definition that shall be entirely faultless, the courts have ordinarily, in the different cases considered by them, passed upon the facts of each case and reached their conclusion from such facts, whether the essential requirements of an office were or were not found therein.

It will be found, however, by consulting the cases and the authorities, that the most general distinction of a public office is that it embraces the performance by the incumbent of a public function delegated to him as a part of the sovereignty of the state. Thus, in Mechem, Pub. Off. par. 4, it is said:

"The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involve a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer." Atty. General v. Jennings, 57 Ohio St. 415, 49 N.E. 404, 63 Am. St. Rep. 723.

As was said by this court in School Commissioners v. Goldsborough, 90 Md. 206, 44 A. 1057:

"The nature of the duties, the particular method in which they are to be performed, the end to be attained, the depository of the power conferred, and the whole surroundings must be all considered, when the question as to whether a position is a public office or not is to be solved."

In that case the question presented was whether a school commissioner was an officer under section 15 of article 2 of the Constitution, which provides that the Governor may remove, for incompetency or misconduct, all civil officers who receive appointment from the executive for a term of years. It was there held that a school commissioner was not an officer under said section and article of the Constitution; and Judge McSherry, speaking for the court, said:

"Civil officers are governmental agents (they are natural persons) in whom a part of the state's sovereignty is vested or reposed, to be exercised by the individuals so intrusted with it for the public good. The power to act for the state is confided to the person appointed to act. It belongs to him upon assuming the office."

And quoting from Collins v. N. Y., 3 Hun (N. Y.) 680, the court also said:

"Probably the true test to distinguish officers from simple servants or employés is in the obligation to take the oath prescribed by law."

In Baltimore City v. Lyman, 92 Md. 591, 48 A. 145, 52 L. R. A. 406, 84 Am. St. Rep. 524, the question presented was whether the superintendent of public instruction in the city of Baltimore is a municipal official, within the meaning and intent of section 26 of the city charter (Laws 1898, c. 123), which provides that:

"No person shall at any time hold more than one office yielding pecuniary compensation under the mayor and city council of Baltimore. All municipal officials, except females, shall be registered voters of the city of Baltimore."

This court in that case, quoting from Judge Cooley in the case of Throop v. Langdon, 40 Mich. 683, said:

"The officer is distinguished from the employé in the greater importance, dignity, and independence of his petition, in being required to take an official oath, and perhaps to give an official bond, in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position. In particular cases other distinctions will appear which are not general."

And in the discussion of that case this court said, speaking through Judge Briscoe:

"The superintendent of public instruction is not appointed by the mayor, or elected by the people, or appointed by joint convention of the two branches of the council. He takes no official oath, gives no official bond, has no commission issued to him, and has no fixed or definite tenure of office, but is appointed at the pleasure of the school board. *** And all executive power, relating to educational matters, is vested in the department known as the 'Department of Education'; and this department is composed of the board of school commissioners. The superintendent of public instruction exercises no power, except what is derived from and through this board. He is simply, then, an employé or the agent of the school board and not a municipal official, within the meaning of the charter."

In the case of Clark v. Harford Agri. & Breed. Ass'n, 118 Md. 608, 85 A. 503, the question was: Are the members of the racing commission, appointed under the act of 1912 (chapter 132), persons "'elected or appointed to any office of profit or trust under the Constitution or under the laws made pursuant thereto,' and as such required to take and subscribe the oath required by the Constitution before they enter upon the duties of the position to which they were appointed"? We there held that it was not an office of profit and trust, and that they were not required to take the oath prescribed by the Constitution, and, in reaching this conclusion, we followed the reasoning in the cases of School Commissioners v. Goldsborough and Baltimore City v. Lyman, supra.

In Truitt v. Collins, 122 Md. 526, 89 A. 850, in which the question here involved was last before us, after stating the law as we have here stated it and as laid down in the cases of School Commissioners v. Goldsborough, Baltimore City v. Lyman, Clark v. Harford Agri. & Breed. Ass'n, and other cases therein mentioned, including the case of Attorney General v. Tillinghast, 203 Mass. 539, 89 N.E. 1058, 17 Ann. Cas. 449, we held that the position of councilman in the municipal corporation of the mayor and council of Snow Hill was an office of profit, within the meaning of article 35 of the Declaration of Rights, and that it was an office of profit and trust, within the meaning of section 6 of article 1 of the Constitution. In reaching this conclusion, Judge Burke, in speaking for the court, said:

"That it is an office in some sense cannot be denied. It is spoken of in the act as an office, and it certainly is one of profit and trust. An examination of the charter will

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