Boyer v. Thurston

Barnls, J., delivered the opinion of the Court. This appeal involves a determination of the validity of the appointment of G. Dennis Thurston, the appellee, as Clerk of the Circuit Court for Washington County in the place of G. Merlin Snyder, deceased. The facts are not in dispute. G. Merlin Snyder was re-elected Clerk of the Circuit Court for Washington County for a term of four years at the General Election held on November 8, 1966, having defeated the appellee, Mr. Thurston, for the office of Clerk.

He died on November 13, 1966, so that there was a vacancy in the office of Clerk. At the time of Mr. Snyder’s death, Judge Irvine H. Rutledge, one of the judges of the Circuit Court for Washington County, residing in Washington County, was absent from Maryland. He returned to Washington County on November 20,1966. Prior to Judge Rutledge’s return, Judge D. K. McLaughlin, the other judge of the Circuit Court for Washington County, ²⁸² residing in Washington County, without prior consultation with Judge Rutledge, but after a conference with at least one other judge of the Fourth Judicial Circuit, which consists of Washington, Allegany and Garrett Counties, prepared an order naming Mr. Thurston as Clerk.

This order was signed by Judge McLaughlin and was forwarded to the other judges of the Fourth Judicial Circuit not residing in Washington County for their signatures and concurrence. On Monday, November 21, 1966, at a conference between Judges McLaughlin and Rutledge, Judge McLaughlin informed Judge Rutledge of the suggested appointment of Mr. Thurs-ton as Clerk and also of the fact that an order had been prepared and forwarded to the judges of the Fourth Judicial Circuit who did not reside in Washington County for their concurrence and signatures, and that, as far as Judge McLaughlin knew, the order had been signed although it had not been returned to his possession. Judge Rutledge stated that this was not agreeable, that he had someone else in mind for appointment as clerk and would not concur in the appointment of Mr. Thurston. Judge Rutledge has never changed his position in this regard, but did not file a written dissent and has not filed any order relative to the appointment of a clerk.

An order, dated November 23, 1966, signed by Judge McLaughlin and the other judges of the Fourth Judicial Circuit —but not by Judge Rutledge — was received and filed by Judge McLaughlin on November 29, 1966. Mr. Thurston took the oath of office as Clerk the same day. On December 9, 1966, the appellants, as citizens and taxpayers of Washington County, filed a petition for the issuance of a writ of mandamus commanding Mr. Thurston to vacate the office as Clerk and to cease in exercising the functions of Clerk in Washington County. Mr. Thurston filed a combined demurrer and answer on January 10, 1967.

Chief Judge Hammond of this Court designated Chief Judge Digges of the Seventh Judicial Circuit, to hear the case. The trial came on before Judge Digges on January 26, 1967, at which time an agreed statement of facts was signed by counsel for the respective parties and filed. On March 14, 1967, Judge Digges filed a comprehensive memorandum opinion and an or ²⁸³ der denying the issuance of the writ of mandamus and dismissing the petition. An appeal was promptly taken from that order to this Court.

In addition to the facts already mentioned, the following facts were contained in the agreed statement of facts: The records of the Circuit Courts for Somerset, Caroline, Baltimore, Howard and St. Mary’s Counties indicate the following : First Judicial Circuit “I. T. Phoebus appointed in Somerset County. Order signed 3-11-63 by all the Judges of the First Judicial Circuit.” Second Judicial Circuit “M. C. Butler appointed in Caroline County. Order signed 10-11-65 by all of the Judges of the Second Judicial Circuit.” Third Judicial Circuit “O. T. Gosnell appointed in Baltimore County. Order signed 8-9-65 by the Judges of the Circuit Court of Baltimore County (there being six Judges of the Circuit in Baltimore County and two in Harford).” Fifth Judicial Circuit “W. H. Hill appointed in Howard County.

Order signed 3-21-61 by all of the Judges of the Fifth Judicial Circuit. G. T. Cromwell appointed in Anne Arundel County. Order signed 6-30-55 by all Judges of the P'ifth Judicial Circuit.” Seventh Judicial Circuit “M. B. Fowler appointed in St. Mary’s County. Order signed 5-16-66 by all of the Judges of the Seventh Judicial Circuit.” At the time of each appointment above set forth, with the exception of the Baltimore County appointment, only one judge resided in the affected county, and the proposed appointment of the clerk to serve during the unexpired term had the approval of the resident judge as well as the other judges of the particular judicial circuit mentioned. ²⁸⁴ In Baltimore County, all six resident judges joined in the order of appointment to fill the vacancy, but without the approval of the other judges of the Third Judicial Circuit.

The resident judges of Washington County, without consultation with or concurrence of the remaining judges of the Fourth Judicial Circuit, have appointed all equity examiners and court auditors for the Circuit Court for Washington County. In the Fourth Judicial Circuit there are rules applicable to all of the counties in the Circuit, generally referred to as Circuit Rules. These Circuit Rules have been submitted to, and have been approved by, all of the judges of the Fourth Judicial Circuit. In addition to the Circuit Rules, there are other rules, generally referred to as Focal Rules, applicable to the Circuit Court for Washington County, which have been signed by only the judges of the Fourth Judicial Circuit residing in Washington County.

It was also stipulated, without agreement as to relevancy in the case, that the approval by the court of deputy clerks in the Circuit Court for Washington County as required by Article IV, section 26 of the Constitution of Maryland, has been accomplished by the signatures of the resident judges of Washington County, acting without the concurrence of the remaining judges of the Fourth Judicial Circuit. At the trial in the lower court, it was conceded that mandamus was the proper legal remedy to challenge Mr. Thurston’s title to his office as Clerk. The respondent-appellee in this Court did not question the right of the plaintiffs as taxpayers to bring the suit, even though they were not, and are not, contestants for the office of clerk. There are two questions presented to us for decision: 1.

Under Article IV, section 25 of the Maryland Constitution, may a majority of all of the judges of the Fourth Judicial Circuit name a successor clerk for the Circuit Court for Washington County or may only the resident judges of the Circuit Court for Washington County make the appointment? 2. If the appointment is confined to the resident judges of the Circuit Court for Washington County, may the appointment be made by one of such judges without the approval and concurrence of the other ? ²⁸⁵ 1. Judges Digges held that a majority of all of the judges of the Fourth Judicial Circuit had the authority to name the successor clerk and that Mr. Thurston had been validly appointed to fill the remainder of the term as Clerk. We do not agree with his conclusion.

Article IV of the Maryland Constitution provides for the Judiciary Department of the State government. Section 20 of that Article stated, in relevant part, as follows: “A Court shall be held in each County of the State, to be styled the Circuit Court for the County, in which it may be held.” Section 25 provides in relevant part: “There shall be a Clerk of the Circuit Court for each. County, who shall be elected by a plurality of the qualified voters of said County, and shall hold his office for four years from the time of his election, and until his successor is elected and qualified, and be re-eligible, * * *. In case of a vacancy in the office of Clerk of a Circuit Court, the Judges of said Court shall have power to fill such vacancy until the general election for Delegates to the General Assembly, to be held next thereafter, when a successor shall be elected for the term of four years.” (Emphasis supplied).

It seems clear that the “Judges of said Court” describe the judges of the court for which the clerk is to be appointed; i.e., the court for the particular county in which the office of clerk becomes vacant. The question then arises in regard to who are the “Judges of said Court.” This question is determined by a consideration of section 21 of Article IV. It is important to observe that in the Constitution as it was adopted in 1867, judges were elected from their respective judicial circuits by the qualified voters of the entire circuit. There was then no constitutional requirement that one judge should be selected from any particular county.

Section 21 provided for the number of judges in each judicial circuit, one of ²⁸⁶ whom should be chief judge. The provision for a chief judge of the respective circuits was important because, pursuant to Article IV, section 14, the chief judge of each judicial circuit, with one elected member of the Court of Appeals from the Eighth Circuit, constituted the Court of Appeals. The system of having a judge of the Court of Appeals from each of the seven judicial circuits was abolished by the amendment to section 14 in November, 1944, when the present system of appellate judicial circuits was adopted with appropriate provisions for appointment and election from those appellate judicial circuits. There was a most significant change in section 21 by amendment in 1953.

Section 21, as amended, now provides, in relevant part, as follows: “From and after January 1, 1955, there shall be in the third, fourth, fifth, sixth and seventh circuits at least one judge for each county, who shall be a resident of the county in which he shall hold office, cmd who shall be elected by the voters thereof, to be styled judges of the Circuit Court, to be elected or appointed as herein provided. The number of judges for any of the circuits or for any of the counties, may be increased or decreased by the General Assembly from time to time, and any vacancy so created shall be filled as provided in Section 5 of this Article except that in the third, fourth, fifth, sixth and seventh judicial circuits there shall never be less than one judge for each county and in all of the circuits there shall never be less than four for each circuit.” (Emphasis supplied). The amendment had an important effect on the nature of judicial offices in the five judicial circuits mentioned. The circuit judges no longer held office at barge within the judicial circuits, but hold office within the particular county in which they reside, and are elected to office by the qualified voters of each county, rather than by the voters of the entire judicial circuit as previously provided.

This amendment did not deprive the judges in the five judicial circuits mentioned from having jurisdiction throughout the boundary of their respective judicial ²⁸⁷ circuits, but after the amendment, each judge held office within the county in which he was a resident and for the individual Circuit Court in which he usually presided. This significant change in the Maryland judicial system was commented upon by Professor Robert G. Dixon, Associate Professor of Government and Politics at the University of Maryland, in his article, Judicial Administration in Maryland — The Administrative Office of the Courts, 16 Md. L. Rev. 95 , 116n (1956) as follows: “At the Circuit level one judge is a quorum. Therefore, the so-called Circuit Courts for the counties tend to operate like separate county courts. A judge of a given circuit sits primarily in the county of his residence as the ‘Circuit Court’ for that county.

This ‘county court’ aspect of the Circuit system is reinforced (1) by having a separate, locally elected clerk in each county and (2) by specifying that in the Third through the Seventh Circuits ‘there shall never be less than one judge for each county’, to be elected on a county basis rather than on a circuit-wide basis. Md. Const., Art. IV, §21, as amended in 1944 and in 1954. [1953, ratified in 1954].” See also Byrd, The Judicial Process in Maryland, pages 39-40 (1961). The 1953 amendment to section 21 also significantly provided : “In the event and to the extent of any inconsistency between the provisions of any section amended or added by these amendments and any of the other provisions of this Constitution or the provisions of any existing law, the provisions of the sections amended or added shall prevail, and such other provisions shall be repealed or abrogated to the extent of such inconsistency, * * In our opinion, this provision effectively resulted in a change-in the meaning of the words “Judges of said Court” in section 25 of Article IV. Prior to the 1953 amendment the words, of necessity, meant the judges of the respective judicial circuits; ²⁸⁸ after the amendment changing the holding of judicial office from a judicial circuit to a county basis, they meant the resident judge or judges in each county.

This construction makes the provisions of section 25 consistent with the new provisions of section 21, as amended, and, as indicated, the 1953 amendment requires that its terms shall prevail over any prior inconsistency. This interpretation is also consistent with other provisions of the Constitution and the established practice in regard to the appointment of other court officials. Article IV, section 9 provides, in part, that “The Judge, or Judges of any Court, may appoint such officers for their respective Courts as may be found necessary; * * The stipulated facts establish that the resident judges of Washington County, without consultation with, or concurrence of, the remaining judges of the Fourth Judicial Circuit, have appointed all equity examiners and court auditors for the Circuit Court for Washington County. In Article IV, section 26, the following is provided: “The said Clerk shall appoint, subject to the confirmation of the Judges of their respective Courts, as many deputies under them, as said Judges shall deem necessary, to perform, together with themselves, the duties of said office, who shall be removable by the said Judges for incompetency, or neglect of duty, and whose compensation shall be according to existing, or future provisions of the General Assembly.” (Emphasis supplied).

Here again the fact is established that the approval of deputy clerks in the Circuit Court for Washington County pursuant to section 26 has been accomplished by the signatures of the resident judges of Washington County, acting without the concurrence of the remaining judges of the Fourth Judicial Circuit. In the State’s testamentary system, the Register of Wills, who is the “Clerk” of the Orphans’ Courts, is elected by the electors in his respective county or in Baltimore City and, in the event of a vacancy in that office, Article IV, section 41 provides that “said vacancy shall be filled by the Judges of the Orphans’ Court in which such vacancy appears * * The ²⁸⁹ filling of a vacancy in the office of Register of Wills is upon a county basis. Article V, section 7 of the Maryland Constitution provides for the election of a State’s Attorney in each county and in Baltimore City. Article V, section 11 provides that in the event of a vacancy in the office of State’s Attorney “the said vacancy shall be filled by the Judge or Judges resident in the county or, if there be no resident Judge, the Judge or Judges having jurisdiction in the Circuit Court of the county in which the vacancy occurs, * * This section of Article V was amended in 1957 to change the words “Judge of the county or city respectively having criminal jurisdiction,” to the present language of that clause.

In 1959 the section was further amended to add the words “or, if there be no resident Judge, the Judge or Judges” etc., so that the section then read as above first set forth. These amendments reinforce the principle generally prevailing throughout the Maryland Constitution, that appointments of court officers