Buckler v. Bowen

Markell, J., delivered the opinion of the Court. This is an appeal from an order granting a writ of mandamus, requiring respondent Ross, Clerk of the Circuit Court, to administer the oath of office to petitioner, Bowen, as an assessor of Calvert County, declaring Bowen to be assessor, legally appointed on November 29, 1950, and requiring respondent Buckler to cease claiming appointment on December 12, 1950. The rival claimants, Bowen and Buckler, have each “in his time played many parts” in the conduct of public office in Calvert County. Before the 1950 election Bowen 'was clerk to the County Commissioners, and was a candidate for election as Clerk of the Circuit Court.

He was defeated for election by respondent Ross, who had previously been elected in 1946. Buckler had been Sheriff, was Register of Wills, and was a candidate for election as Sheriff. He was defeated for election. Bowen claims to have been appointed assessor by the County Commissioners on November 29, 1950; Buckler claims to have been appointed on December 12, 1950.

Buckler served as assessor until ousted by mandamus in this case. For the four years before the 1950 election the County Commissioners were A. Claude Turner, from the first election district, President, J. Gill Denton, from the second district, and Benjamin A. Sunderland, from the third district. In 1950 Denton and Sunderland were reelected, but Turner was defeated by Roy C. Howard, Commissioner from the first district. On November 29, 1950, at eleven A.M., the “new” board met and elected Sunder-land president.

Sunderland and Howard had taken the oath of office that morning. On the same morning, before eleven o’clock, the “old” board, only Turner and Denton being present, purported to appoint Bowen assessor. At the same meeting the board authorized payment to themselves of “$400 each for their services in the Review and Control Assessment program, heretofore provided for that purpose”, and apparently authorized or approved ³⁶¹ payment of four unnamed bills. On December 12, 1950 the “new” board, only Sunderland and Howard being present, purported to appoint Buckler assessor.

On December 18, 1950 Ross refused to administer the oath of office to Bowen; on December 19,1950 he administered the oath to Buckler. On January 6, 1951 the petition for mandamus was filed. The order from which this appeal was taken was entered on March 17, 1951. One of the questions at issue is whether Howard took the oath before or after Turner and Denton attempted to appoint Bowen.

The record in the Clerk’s office shows that Sunderland and Howard took the oath at 9:50; Ross and Sunderland so testify. Sunderland testifies that he asked the clerk to “record the time we were sworn in, because I thought there might be some controversy over the situation, and we looked up at the clock, Mr. Howard and Mr. Ross and myself, and that is what he recorded the time as”. Howard did not testify. Ross and Sunder-land are the only witnesses who were present when Sunderland and Howard took the oath.

Bowen testified, “The Commissioners never got there before ten, and they got there the usual time that morning — * * *— they stayed around there for awhile. Mr. Sunderland said to Mr. Denton, ‘Let us go over and take out our commissions.’ Mr. Denton said, T am not going, I have thirty days to take my commission out’, so it was sometime after ten o’clock, according to my judgment, when Mr. Sunderland left the office to go across the hall, or wherever he went, to take out his commission, and the old board adjourned at eleven o’clock, the new board convened right on the heels of the old board going out, because I was acting clerk for both boards. I was Clerk to the old board and Acting Clerk for the new board.” Mr. Turner testified that he “got in the office at exactly ten o’clock, * * *. Mr. Bowen and Mr. Denton were in the office.

A few minutes after that, Mr. Sunder-land came in”, said he was going over to “take out his commission” and asked Mr. Denton whether he wanted to take out his. “I would say it was somewhere from ³⁶² ten to ten fifteen, maybe, when he left, and said he was going to take, out his commission. * * * I did not see him any more until after I went over and called up Mr. Rogan and came back in the office, and when I came back in the office Mr. Sunderland and Mr. Howard .were in there, along with Mr. Dowell.” Mr. Turner had already testified that before he and Mr. Denton appointed Bowen, he had gone to Senator Goldstein’s office and had there talked by telephone with Mr. Rogan, Chairman of the State Tax Commssiion. “I called him that morning around ten thirty”. Bowen had testified that “somewhere around eleven o’clock, Mr. Turner went out of the office to call Mr. Rogan”, before the appointment was made. Mr. Denton testified that he went into the County Commissioners’ office about ten o’clock, “and not too long after I was in there, I would say fifteen or twenty minutes, probably”,. Sunderland came in, asked Denton whether he wanted to go across the hall and take his commission out, Denton said he did not, and Sunderland “turned around and went out and they came in again about a few minutes before eleven o’clock.. * * * We had made that appointment [of Bowen as assessor] before they [Sunderland and Howard] came in.” We find no evidence that Bowen was appointed before Howard took the oath; there is affirmative evidence to the contrary.

If the testimony of Bowen, Turner and Denton be accepted as contradicting the record in the Clerk’s office and the testimony of Ross and Sunderland as to the exact time of the oath, there is still no evidence that the appointment was made before Howard took the oath. The testimony of both Bowen and Turner indicates the contrary. Even' if Denton’s testimony (in this respect at variance with Turner’s) be accepted as meaning that the appointment was made after Sunder-land left and before Sunderland and Howard came in, there is nothing to indicate that Howard and Sunderland took the oath at the end, rather than at the beginning, of the interval. Judge Gray did not find it necessary ³⁶³ to pass upon the question whether Bowen was appointed before Howard took the oath.

Section 180 (a) (b) of Article 81 of the Code (1947 Supp.; Acts of 1947, ch. 706; 1948, ch. 64; 1950 ch. 1), which provides for appointment of assessors by County Commissioners, also provides, “* * * No appointment shall be made, however, except in the following manner: (b) The County Commissioners shall submit to the State Tax Commission from the applicants for each position to be filled, a list of not less than three applicants for each position. The State Tax Commission shall interview, examine and grade said applicants, in order to determine their relative qualifications for the position or positions to be filled, and shall certify the list of applicants and their respective grades to the County Commissioners, who shall appoint an assessor for each position from the said list. Upon appointment, each assessor shall perform his duties under the direction of the Supervisor of Assessments, and shall hold his position during good behavior, subject only to removal by the State Tax Commission, after hearing, for incompetency or other cause. * * *” The County Commissioners, in a letter to Mr. Rogan dated November 21, 1950, submitted to the State Tax Commission the names of Bowen, Buckler and J. C. Ward, “for consideration for appointment as assistant to the Supervisor of Assessments for Calvert County”. On November 22nd this letter was presented to the Commission by Bowen and Denton in person, and Bowen was interviewed by the Commission and filled in a blank application for appointment.

The same day the Commission sent applications to Buckler and Ward and asked them to come for an interview on November 28th. Buckler had declined to go with Bowen and Denton, and wrote the Commission that he could not go on November 28th, because the Orphans Court would meet on that day, but that he would go on the 29th. He went on the 29th, and in the afternoon, several hours after the appoint ³⁶⁴ ment of Bowen, was interviewed. Ward was not interested, and the Commission never heard from him. - On November 28th Mr. Turner “had a telephone conversation with Mr. Rogan, I think around three-thirty or four o’clock, probably.

I called Mr. Rogan. * * * And asked him if he was going to send these names down for this appointment, that we would like to make it. He said, ‘Yes, the letter is in the mail’. * * * On the morning of the 29th * * * I expected to find the letter, but the letter was not there. I again * * * called Mr. Rogan, and he said that they had put Mr. Lloyd Bowen as first in the recommendations, and we could go ahead and make the appointment and it would be confirmed by letter. * * * He told me Mr. Kenneth Buckler was graded second. * * * I came right in the County Commissioners’ office and with Mr. Denton and Mr. Bowen present, we appointed Mr. Lloyd Bowen as assessor.” In a letter dated November 30th from the Commission to Mr. Turner as President of the County Commissioners, it was stated that the Commission had interviewed Bowen and Buckler and graded Bowen first, and Buckler second. On December 12th the County Commissioners appointed a clerk to succeed Bowen on the fifteenth; Denton being absent, they appointed Buckler assessor, and notified the State Tax Commission of the appointment by a letter dated December 12th, signed by Sunderland and Howard, with the seal affixed by Bowen.

The minutes of this meeting were signed by Bowen as acting clerk. On December 13th Bowen telephoned Mr. Rogan, asked “what had happened to” his appointment, why Mr. Mueller had not been down “to brief him”, and was told he had not been sworn in. Mr. Rogan testified that the State Tax Commission, all of its members, already knew enough about both Bowen and Buckler to grade them without interviewing Buckler. Respondents contend that the appointment of Bowen was invalid both because (1) it was not made in accordance with the requirements of Article 81, section 180 and (2) Turner had ceased to be a County Commissioner ³⁶⁵ when the appointment was made.

Petitioner contends that the quoted provisions of section 180 are directory, not mandatory, and Judge Gray so held. We should hesitate to adopt petitioner’s contention to the extent of construing “No appointment shall be made except in the following manner” as meaning “Any appointment may be made in the following manner”. We should also hesitate to construe section 180 so strictly as to make it indispensable to grade a list of three applicants when there are only two applicants, or to interview personally, before grading, applicants as well known as both Bowen and Buckler apparently were, or to “certify” in writing, rather than by telephone. Our view of respondents’ second objection makes it unnecessary for us to construe section 180.

Article 17, section 1 of the Constitution (the fewer elections amendment, ratified in 1922) provides, “* * * all county officers elected by qualified voters, shall hold office for terms of four years, and until their successors shall qualify.” A “term of four years” means four years from the date of election. Benson v. Mellor, 152 Md. 481, 488 , 137 A. 294 . Article 5, section 75, P.L.L. (1930), as reenacted by Chapter 400 of the Acts of 1914, expressly provides for a term of six years “from the date of his election”, but was of course superseded by the constitutional amendment.

Turner ceased to be a commissioner de jure as soon as Howard took the oath. Judge Gray found it unnecessary to determine whether or not Bowen was appointed before Howard took the oath. He concluded “that even if Mr. Howard qualified well in advance of the meeting of the old Board by which the petitioner Bowen was appointed, Mr. Turner was a de faeto officer and that his action was entirely valid. He was meeting in pursuance of a regularly recessed meeting of the day before and he and his associate Denton acted on various matters, including the appointment of Bowen.

His action as a member and president of the Board was not questioned by Mr. Howard, or anybody else, until Howard and Sunderland came in to the County Commissioners’ ³⁶⁶ office at eleven o’clock and announced that they had qualified and desired to take over the work of the Commissioners. Thereupon the meeting of the old Board adjourned and the new Board proceeded to meet and organize. The action taken by the old Board was valid and is not subject to collateral attack in this proceeding. The validity of the acts of an official who proceeds under color of title of his office in good faith and without question by any person concerned is good insofar as the public and all third persons are concerned.” There can be no question that “insofar as the public and all third persons are concerned”, both Bowen (pending this appeal) and Buckler (before the writ of mandamus) were de facto officers and their acts as assessors are valid.

In a number of states it has also been held that by appointment by a de facto board or officer an appointee may become a de jure officer. St. Luke’s Church v. Mathews, 1815, 4 Desaus. 578 , 4 S. C. Eq. 578, 586-590, 6 Am. Dec. 619 ; Ohio ex rel. Whitbeck v. Alling, 1843, 12 Ohio 16 ; Brady v. Howe, 1874, 50 Miss. 607, 623 ; Roberts v. Holmes, 1874, 54 N. H. 560; People ex rel.

Norfleet v. Staton, 1875, 73 N. C. 546 , two out of five judges dissenting; Iowa ex rel. Hartnett v. Powell, 1897, 101 Iowa 382 , 70 N. W. 592 ; Brinkerhoff v. Jersey City, Err. & App. 1899, 64 N. J. L. 225, 46 A. 170 , overruled in Von Nieda v. Bennett, 1936, 117 N. J. L. 231, 187 A. 629 , 106 A. L. R. 1320, infra; Commonwealth ex rel. Palermo v. Pittsburgh, 1940, 339 Pa. 173 , 13 A. 2d 24 ; State ex rel. Carlson v. Strunk, 1945, 219 Minn. 529 , 18 N. W. 2d 457 , citing Brinkerhoff v. Jersey City and People ex rel.

Norfleet v. Staton, supra; Dillon on Municipal Corporations (5th Ed., 1911, not in earlier editions) § 519. However, the best considered cases, we think, especially among recent cases, hold to the contrary, viz., that a de facto body or officer cannot by appointment create a de jure, officer. It was so held by the New Jersey Court of Errors and Appeals in Von Nieda v. Bennett, 1936, 117 N. J. L. 231, 187 A. 629 , in a persuasive opinion ³⁶⁷ which reviews