Townsend v. Kurtz
| Decision Date | 19 June 1896 |
| Citation | 34 A. 1123,83 Md. 331 |
| Parties | TOWNSEND v. KURTZ. |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city.
Action of mandamus by F. Albert Kurtz against Thomas P. Townsend. From the granting of a peremptory writ, defendant appeals. Affirmed.
Argued before McSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, PAGE RUSSUM, and BOYD, JJ.
Bernard Carter and A. S. J. Owens, for appellant.
Harry M. Clabough and Geo. R. Gaither, Jr., for appellee.
This case involves the title to the office of insurance commissioner of the state of Maryland, and was brought to this court by an appeal from an order of the superior court of Baltimore city directing the issue of a peremptory writ of mandamus commanding the appellant (defendant below) to deliver to the appellee all books, papers, etc., belonging to or in any wise appertaining to the said office, and to surrender the office to him. A brief statement of the facts will suggest the points involved in the controversy: On December 30, 1892, I. Freeman Rasin was appointed insurance commissioner for the term of four years from the date of his appointment, by the board of public works, which was then composed of his excellency, Frank Brown, governor, Hon. De K Smith, comptroller, and Hon. Spencer C. Jones, treasurer. On November 30, 1895, Mr. Rasin tendered his resignation, which was accepted on December 11, 1895, and on the 18th day of the latter month the board unanimously elected the appellant insurance commissioner. On the same day Gov. Brown issued a commission to him to "hold and execute said office justly, honestly, and faithfully for the term of four years from the date of this commission, or until you shall be duly discharged therefrom." The minutes of the proceedings do not show the time for which he was elected, but section 121 of article 23 of the Code of Public General Laws provides that the chief officer of the insurance department "shall be appointed by the governor, treasurer and comptroller for the term of four years, and shall be known as the insurance commissioner, * * * and shall hold his office during the term for which he is appointed, or until his successor is appointed and qualified, unless sooner removed by the governor, treasurer and comptroller." Under that appointment the appellant regularly qualified by giving the bond prescribed by the statute and taking the oath of office and entered upon the duties of his office. On March 12, 1896 the board of public works, which was then composed of his excellency, Lloyd Lowndes, governor, Hon. Robert P. Graham, comptroller, and Hon. Thomas Shryock, treasurer, adopted a resolution that "Thomas P. Townsend, insurance commissioner, be removed from office, to take effect upon the appointment and qualification of his successor," and on the next day unanimously elected the appellee for the term of four years from the date of his appointment. On the 17th day of that month Gov. Lowndes issued a commission to the appellee, who filed his bond, took the oath of office as required by law, and subsequently made a demand on the appellant for the transfer of his office, etc., which was refused. No charges were filed against the appellant for misconduct, incompetency, or other cause, and he was removed without prior notice or hearing. The case was tried before the court without a jury, and the above facts were admitted. The appellee offered a prayer which was granted, and the appellant one which was rejected, and the ruling of the court on the prayers presents the question before us for review. The right of the appellee to have the writ of mandamus issue is by his prayer made to depend upon the finding by the court that the appellant was removed from the office by the governor, comptroller, and treasurer; while that of the appellant asked for a verdict in his favor because the attempted removal was not for cause, and was without any previous notice or hearing.
It is contended on the part of the appellee that the tenure of this office is not for a fixed term, but its duration is uncertain and indefinite, and therefore the incumbent is removable at the will of the appointing power. It is well settled that, where there is no limit fixed to the term of office, and the appointee holds merely at the will of the appointing power, he may be removed without notice, and without charges being preferred or reasons assigned. But it would seem clear that under the very terms of the statute the tenure of this office is not for such an indefinite term as that. The statute says he shall be appointed "for the term of four years," and that he "shall hold his office during the term for which he is appointed, or until his successor is appointed and qualified, unless sooner removed by the governor, treasurer, and comptroller." We will have occasion to discuss later on the effect of this power of removal, but it cannot properly be said that the appointment is not originally for a definite term, although subject to removal by the action of all of the officers above named. It is true, he may not hold the office four years by reason of death, resignation, or his removal, if done in the way authorized by law, but that is the time designated by the statute for which he shall hold it, subject to those contingencies. It is therefore distinguished from that class of cases in which the appointing power is authorized to appoint officers without naming some fixed term. Most, if not all, officers provided for by the constitution may be removed under the express authority given by that instrument; but the fact that they may be removed does not convert their offices from those for definite terms into those held at the will of the persons making the appointment. The constitution, for example, in section 13 of article 2, says that the term of all civil officers appointed by the governor and senate, except in cases otherwise provided for, shall "continue for two years (unless removed from office) until their successors respectively qualify according to law"; and section 15 of the same article authorizes the governor to "remove for incompetency or misconduct all civil officers who received the appointment from the executive for a term of years." It has never been suggested, so far as we are aware, that such offices were not for the fixed term of at least two years, notwithstanding the fact the incumbents might be removed within that time. Nor can we receive any aid in our consideration of this point from the language "or until his successor is appointed and qualified." "Or," in that connection, is frequently, if not generally, equivalent to "and," as in the case of Lynn v. City of Cumberland, 77 Md. 449, 26 A. 1001, where, by an ordinance, a tax collector was required to be elected annually, and it was provided that he should "hold his office for one year, or until his successor was duly elected and qualified." This court held that his bond given after such an election was responsible for the second year, although the liability of securities was involved, because his successor had not qualified. But, the legislature having expressly said that the insurance commissioner should be appointed for the term of four years, and, knowing that his term might be shortened by resignation or in some other legal way, declared that he should hold the office during the term for which he is appointed, or until his successor is appointed and qualified. The duties of the commissioner are important, and the legislature wisely provided against a vacancy, and that is evidently all that provision was intended for. If there could be any doubt about this construction of the statute, the case of Miles v. Stevenson, 80 Md. 358, 30 A. 646, would seem to be conclusive of it. The act of 1890 (chapter 113), which was then under consideration, expressly provided that the road supervisor should hold his office "for two years, or until his successor is duly appointed and qualified," and should be subject to removal for incompetency, willful neglect of duty, or misconduct in office. But this court held that the incumbent, Stevenson, could only be removed for one of the causes mentioned in the statute; while, if the construction of the appellee be correct, that the language "or until his successor is appointed and qualified" terminated the term of office of Townsend when Kurtz was appointed and qualified, the same would have applied to that case, and Miles' appointment would have been valid. But there can be no question that the governor, comptroller, and treasurer have the power to remove this officer under some circumstances, and hence it becomes important to determine whether their action in removing Mr. Townsend without assigning any cause or giving him notice or hearing was lawful. It must be conceded that, if the appellant could only have been removed for cause, he was entitled to notice, and an opportunity to defend himself; for, unless the statute authorize it, no one appointed for a definite term can be removed for cause without having an opportunity to be heard in his defense. The great weight of authority is to that effect, and Miles v. Stevenson, supra, conclusively settles it as the law of this state.
But the real question is whether the statute under consideration is to be so construed as to limit the power of removal to one for cause. The statute makes no express declaration on the subject, and we must be guided by the meaning of the language used, by the provisions in the constitution and other statutes in reference to the removal of officers, by the history of the law in establishing this office, and by the reasoning of such authorities as we find applicable to the case. It is contended on the part of the appellant that it is the policy of the state to continue in office...
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