Claude v. Wayson

Pattison, J., delivered the opinion of the Court. This case is before us on appeal from the order and judgment of the Circuit Court for Anne Arundel County refusing to grant the writ of mandamus asked for by the appellant, in his petition, against the appellees, the County Commissioners for Anne Arundel County, commanding them to approve the bond of the appellant, and also against George Wells, clerk of the said Court, commanding him to administer to the appellant the oath of office of justice of the peace for the sixth election district of said county; and dismissing the said petition of the appellant, with costs to the defendants. The facts are not disputed. The Governor of Maryland in the year 1910, by and with the advice and consent of the Senate and pursuant to Chapter 334 of the Acts of 1892, appointed John B. Wells and John 2sT.

Davis to be justices of the peace for said election district of said county, both of whom were commissioned on April 20th, 1910, and each of them thereafter qualified by having his bond approved by the County Commissioners for Anne Arundel County, and by taking the oath of office before the clerk of the Circuit Court for said county; the former on the 2nd day of May, 1910, and the latter on the 26th day of April, 1910. Dennis Claude, the appellant, and one James D. Feldmeyer were, by the Governor, on February 14th, 1912. nominated to the Senate for justices of the peace for the said sixth election district of Anne Arundel County as successors to the said Wells and Davis, but the Senate finally adjourned without taking any action on said nominations. After the ⁴⁸⁰ final adjournment of the Senate, on April 22nd, 1912, the said Glande and Eeldmeyer were by the Governor appointed and commissioned justices of the peace for the said sixth election district of said county “for the term of two years from the first Monday in May, 1912, or until duly discharged therefrom.” The appellant on the 7th day of May, 1912, attempted to qualify by submitting a bond, as required by the Acts of 1892, Chapter 334, to the County Commissioners for Anne Arundel County, but as alleged in said petition, said commissioners refused to approve his bond “not because it was not sufficient or in conformity with "the laws of the State providing therefor, but solely upon the ground that under the Constitution of the State the aforesaid John B. Wells and John 1ST. Davis held over in their aforesaid office of justice of the peace, that there was no vacancy in said offices, and that the Governor of Maryland had no right to make the appointment of the said Dennis Claude aforesaid; and that they had accordingly already, to wit, on the 23rd day of April, 1912, approved the bonds of John B. Wells and John 1ST.

Davis submitted to them for approval.” And on the said 7th day of May, 1912, he further attempted to qualify by offering to take the oath of office prescribed by the Constitution and laws of this State before George Wells, clerk of the Circuit Court for Anne Arundel County, one of the defendants, but he refused to administer the oath thus tendered because of the acts of the County Commissioners in refusing to approve the bond and for the reasons assigned by the said commissioners. The question here presented is the validity of the appointment of the appellant by the Governor. The power of the Governor to make this appointment is said by the appellant to be found in sections 42 and 43 of Article 4 of the present Constitution, which are practically the same as sections 47 and 48 of the Constitution of 1864. These sections, so far as they are pertinent to the question presented, are as follows: ⁴⁸¹ “Section 42.

The Governor, by and with the advice and consent of the Senate, shall appoint such number of justices of the peace, and the County Commissioners of the several counties, and the Mayor and City Council of Baltimore, respectively, shall appoint such number of constables, for the several election districts of the counties, and wards of the City of Baltimore, as are now, or may hereafter be prescribed by law. * * * The justices of the peace and constables, so appointed, and commissioned, shall be conservators of the peace, shall hold their office for two years, and shall have such jurisdiction, duties and compensation, subject to such right of appeal, in all cases, from the judgment of justices of the peace, as hath been heretofore exercised, or shall be hereafter prescribed by law.” “Section 43. In the event of a vacancy in the office of a justice of the peace, the Governor shall appoint a person to serve, as justice of the peace, for the residue of the term, and in case of a vacancy in the office of constable, the County Commissioners of the county in which the vacancy occurs, or the Mayor and City Council of Baltimore, as the case may be, shall appoint a person to serve as constable for the residue of the term.” By section 19 of Article 4 of the Constitution of 1851, justices of the peace and constables were elected by the legal and qualified voters of the election districts and wards of the city respectively, and held their office for two years from the time of their election and until their successors in office were elected and qualified. It will be observed that this extension of the term of office “until their successors in office are elected and qualified,” is not found in section 42 of Article 4 of the present Constitution. And it is because of this omission that the appellant contends that the term for which the said Wells and Davis were appointed justices of the peace expired at the end of two years from the first Monday in May, 1910, and that inasmuch as no action was taken by the Senate upon the nomination made to it by the Governor, as above stated, no appointment of their successors in ⁴⁸² office was made by the Governor by and with the advice and consent of the Senate, and thus after the expiration of said term of two years from the said first Monday in May, 1910, as contended by the appellant, the office became vacant and the Governor was empowered to fill such vacancy.

It is on the other hand contended by the appellees that we must not look alone to section 42 of Article 4 of the Constitution to ascertain the full term of office for which Wells and Davis were appointed, but that in connection with section 42 we are to consider section 13 of Article 2 of the Constitution, which 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 in 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 in March next ensuing their appointment.” If section 13 of Article 2 of the Constitution is to be read into section 42 of Article 4, and the provisions thereof in respect to the term of office — “until their successors respectively qualify according to law” — be made to apply to the office of .justice of the peace, then we would have no difficulty in reaching the conclusion contended for by the appellees, that the term of office of Wells and Davis continued until the qualification of their successors, appointed by the concurrent action of the Governor and the Senate, and as there has been no such appointment, no vacancy could be said to exist to be filled by the Governor. It thus becomes necessary for us in the determination of the question presented by this appeal to determine whether or not section 13 of Article 2 of the Constitution should be read info section 42 of Article 4 of the Constitution and made to apply to the term of office of justices of the peace. ⁴⁸³ Our predecessors in discussing the case of Taylor v. Hebden, 24 Md. 202 , relied upon by the appellee, said: “Whilst (the appellee was) thus in office, the People of the State in convention assembled, framed and adopted a new Constitution, which went into effect on the first day of November, 1864. By it the tenure of office of justices of the peace was changed from election by the people, to appointment by the Governor, by and with the advice and consent of the Senate, the term of office to be two years. Arc.

(4), Part 6, see. 47. And by Article 2, section 16 (Constitution of 1864), it is provided that call civil officers appointed by the Governor and Senate, shall he 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 in May next ensuing their appointment, and continue for two years (unless sooner removed from office) and until their successors, respectively, qualify according to law.’ ” (It will he observed that this section is practically the same as section 13 of Article 2 of the present Constitution. ) “These provisions regulate the original appointments of justices of the peace (as distinguished from filling of vacancies), and fix the time for the commencement and termination of {'heir office. The regular sessions of the General Assembly are biennial; the appointments of justices of the peace are to he made at each regular session; and their term of office shall commerce on the first Monday in May next ensuing their appointment. No other time is fixed for this purpose in the Constitution.

This mode allows a full session for the appointments to he made, and reasonable time for issuing their commissions and for their qualification for office. By it order and regularity are observed, and after the first appointments under the Constitution shall have been made, the machinery of government in this branch of the public service will move on without interruption. ⁴⁸⁴ Such is the obvious design of the Constitution in this respect.” In the case from which we have just quoted, the appellant was, in December, I860, nominated to and confirmed by the Senate at an extra session of the General Assembly, for justice of the peace. Sec. 16 of Art. 2 of the Constitution of 1864, then in force, provided that all civil officers appointed by the Governor and Senate should be nominated to the Senate within fifty days from the beginning of each regular session of the General Assembly. It was because of the fact that the nomination was so made to the Senate at an extra session, and not at a regular session of the General Assembly, that the validity of the appointment was assailed.

In deciding the question there raised, it was not necessary for the Court to have held, as it did, that the termination of the term of office of justices of the peace was regulated and fixed by Sec. 47 of Art. 4, and Sec. 16 of Art. 2 of the Constitution of 1864. Hebden, the appellee in that case, was in November, 1863, elected justice of the peace under the Constitution of 1851, for the term of two years from the time of his election and until his successor in office was elected and qualified, and upon the adoption of the Constitution of 1864, he was protected in his tenure of office by Sec. 6 of Art. 12 thereof, which provided that he should hold and exercise his office according to his present tenure until he should be superseded pursuant to its provisions and until his successor be duly qualified. Such successor was to be nominated by the Governor to the Senate within fifty days from the beginning of a regular session of the General Assembly, and upon confirmation by the Senate his term of office v^s to commerce on the first Monday of May thereafter. To this extent only were the provisions of section 16 of Article 2 (Constitution of 1864), involved in the determination of the question presented in that case.

The provision therein contained that those to "whom the section was ⁴⁸⁵ applicable should continue in office “for two years (unless sooner removed