Dowling v. Smith

²⁶⁶ The Judges delivered separate opinions in the case. Le Grand, C. J.: Looking to the proper interest manifested by a large portion of the community in the questions supposed to be involved in this case, and differing, as I do, in some particulars, from the opinion pronounced by my brother Mason, (which is concurred in, to a considerable extent, by my brother Tuck,) I deem it advisable to briefly indicate the views which I entertain in regard to the matter embraced by these appeals. The case is before us on two appeals. First, on an appeal from an order passed by the judge of the Superior Court for Baltimore city, declaring the office of the clerk, of said court, vacant.

And Secondly, from an order directing the appellant, Dowling, to surrender to the appellee, Smith, all the books, records, &c., belonging to the oiflce of the clerk of said court. The appellant, Dowling, in November 1851, was elected to the office of clerk of the Superior Court, and shortly thereafter gave the necessary bond, and took the oath prescribed by the constitution. There is no question that he was properly inducted into office: that is to say, in strict conformity with the requirements of the constitution and the then existing laws. Nor is there any question as to his compliance with the act of 1853, chap. 409.

If hé be out of office, he is so, only, because of an alleged noncompliance with the act of 1856, chap. 286. The office of clerk to the Superior Court for Baltimore city, is created by the 14th section of the 4th article of the constitution of the State. After reference to other matters, it declares: “There shall also be a clerk of the Court of Common Pleas, in Baltimore city, and a clerk of the Superior Court of Baltimore city, and there shall also be a clerk of the Criminal Court of Baltimore city; and each of the said clerks shall be elected, as aforesaid, by the qualified voters of the city of Baltimore; and shall hold his office for six years from the time of his election, and until a new election is held, and be re-eligible thereto: subject, in like manner, to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law.” ²⁶⁷ The 16th section, of the same article of the constitution, provides, that “All laws relating to the clerks of the Court of Appeals, clerks of the several County courts and Baltimore city court, shall be applicable to the clerks, respectively, of the Court of Appeals, the County courts, the Court of Common Pleas, the Superior Court, and the Criminal Court of Baltimore city, until otherwise provided by law.” By the 14th section of the 4th article, it is provided, that “In case of a vacancy in the office of a clerk, the judge or judges of the court of which he was clerk, shall have the power to appoint a clerk, until the general election of delegates held next thereafter, when a clerk shall be elected to fill such vacancy.” It is under these clauses of the constitution, and the provisions of the act of Assembly of 1856, chap. 286, tire authority is claimed for the judge of tire Superior Court, to vacate the office of the clerk to his court. It is manifest, from these citations, that all laws relating to clerks of the several courts, which were in force at the adoption of the constitution, continued so, and, as applicable to the clerk of the Superior Court, “until otherwise provided by law. ” Until the act of 1853, chap. 409, there was no attempt, since the adoption of the present constitution, to alter or modify, in any particular, (so far as bonds of clerks are concerned,) the laws existing previously thereto.

Dowling entered into his office in the year 1851, and bonded. His bond was, consequently, given under the act of 1800, chapter 82. Its condition covered the whole period “during his continuance in office;” that is to say, for the period of six years, should he continue in office such a length of time. The act of 1853, chapter 409, did not, in any wise, change the condition of the bond, which it required the clerk of the Superior Court to enter into.

Its whole office was to change the amount of the penalty, and to fix the time within which, after the passage of the act, the bond required should be given, The obligation of the bond given under this act, extends over the whole period of his continuance in office, or at least, until such time as he shall give a bond, as required by the act of ²⁶⁸ 1856, chapter 286. If, therefore, the bond executed in 1853 be a good bond, the public are not without security against any neglect, or failure to discharge his official duty, by the clerk. This is my opinion. I entertain no doubt that it was competent to the legislature to pass, (with the exception of the 5th section,) the act of 1856, chapter 286.

The 16th section of the 4th article of the constitution, expressly authorises the legislature to alter.the laws relating to the clerks: but it does not authorise an alteration of the constitution itself. Did such a power exist in the legislative branch of the government there would be, in fact, no constitution. Its provisions would depend wholly upon the wisdom or caprice of the members at each recurring Assembly. To admit of such a power in the Legislature would be to ignore all our consecrated ideas of the protection furnished to our rights of person, liberty and property, by Magna Charta and our Bill of Rights, both of which provide and guarantee, that we shall not be dispossessed of anything, except by the judgment of our peers.

Whilst I hold, with the exception of its 5th section, the act of 1856, to be a legitimate exercise of legislative power, I am still clearly of opinion, that that section is an infraction of the organic law, and in this, that it seeks to provide for the removal of a clerk, in a manner directly in conflict with the one prescribed by the constitution. If the legislature exact of a clerk the renewal of his bond, and he refuse to comply, such refusal is a neglect of duty, inasmuch as he is bound to conform to all laws relating to him as clerk, and to his office as such; and he may be convicted for the same, in a court of law, and amoved. It is proper, however, to observe, that the mere failure to give bond, within the time prescribed, is not, ex necessitate, such a "wilful " neglect of duty as would, under every possible state of circumstances, command a conviction. It is not every neglect of duty which will, under the constitution, justify a conviction; it must be a "wilful” neglect.

The importance of this word, in this connection, is made manifest by contrasting the section of the constitution, in which it is found, with the language of ²⁶⁹ the 3rd section of the 4th article. In the latter it is said: «The Court of Appeals shall appoint its own clerk, who shall hold his office for six years, and may be re-appointed at the end thereof; he shall be subject to removal by the said court, for incompetency, neglect of duty, misdemeanor in office, and for such other causes as may be prescribed by latv.” By this part of the constitution, it will be seen, the clerk of the Court of Appeals may be removed by the court for any neglect, wilful or not; and that the power is reserved to the Legislature to prescribe other causes of removal than those specified in the constitution. This is not so in regard to the clerks of the Circuit Courts, nor of the clerk of the Superior Court, nor of the clerk of tire Court of Common Pleas, nor of the clerk of the Criminal Court. So far as they are concerned, the judge of the particular court has no power to remove; they must be convicted «in a court of law; ” and if the conviction be for a neglect of duty, such neglect must be «wilful, ” and of the wilfulness in the particular instance, the jury must be the judges.

The distinction in the constitution, between the power of the judges of the Court of Appeals over their clerk, and that of the judges of the other courts over their clerks, is obvious and broad, and wé cannot but hold, that to the convention which framed the instrument it was apparent, and was by it intended to be so. The fact is, the constitution, in regard to nearly all the officers recognized by it, points out the manner, mode and causes of removal; and it is a well settled principle of construction, that where a right or franchise is conferred, subject to be divested in a manner specified, the manner so designated must be pursued. It is to such cases the maxim, expressio unius est exclusio alterius, properly applies. And so, accordingly, it has been frequently held, both by courts of law and legislative bodies, that where certain qualifications are specified, as those constituting the right of a party to hold and enjoy an office, and no power by the constitution be reserved to the legislature to add to or take away therefrom, the enumerated requisites are all that can be insisted upon.

I agree with my brother ²⁷⁰ Eccleston in what he has said in regard to the action of the Superior Court. The matter was coram non judice, and, therefore, of non-effect. The result of the opinion pronounced by the judges of this court is, that the orders of the Superior Court, in the premises, be reversed. Order reversed.

Eccleston, J.: Although the clerk of the Superior Court of Baltimore city may have failed to procure the approval of his official bond, according to the provisions of the act of 1856, ch. 286, within the time prescribed by that act, still I do not think, that for such failure, the judge of the court had the right to declare the office vacant, and to pass the orders which he did, for the purpose of filling the vacancy. The language of the act must be construed with reference to the provisions of the constitution on the subject; and, in my opinion, notwithstanding the failure to procure the approval of the bond in due time, the judge had no authority to treat the office as vacant whilst Dowling continued to claim it, until, for such failure, he was convicted in a court of law of “wilful neglect of duty” in office, according to the 14th section of the 4th article of the constitution. Believing the action of the court below was erroneous, I think there should be a reversal, and therefore need not inquire whether the proceedings, in point of form, were irregular or not. Mason, J.: The main question for our determination upon the present appeal is, whether the act of 1856, chap. 286, is a constitutional exercise of power upon the part of the legislature?

That act provides, that the clerk of the Superior Court of Baltimore city shall execute a bond with securities, &c., within thirty days from the passage of the law, and in the event of his not doing so, the 5th section provides, that it “shall be deemed a disqualification within the meaning of the constitution, and thereupon his place shall be filled according to the provisions ²⁷¹ of the 14th and 18th sections of the 4th art. of the constitution.” It is supposed that these requirements are inconsistent with the terms of the constitution which relate to the clerks of the several courts in this, that the act superadds a qualification, and provides a mode of removal from office not contemplated by the letter or spirit of the constitution; and this question is to depend upon the proper construction of that instrument. The true meaning and spirit of the constitution can only be collected from an interpretation of its several parts relating to the same subject, taken in connection with each other. And in determining the constitutionality of statutes, comity requires, that acts of a co-ordinate branch of our government are never to be declared, by this court, to be unconstitutional and void, except upon the clearest conviction that they are repugnant to the organic law. The terms of the constitution, which are to control this question, are to be found in the 14th and 16th sections of the 4th article.

By the 14th section it is provided, that “there shall be a clerk of the Superior Court of Baltimore city elected as aforesaid, by the qualified voters of the city of Baltimore, and shall hold his office for six years from the time of his election, &c., subject in like manner to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law.” If this provision stood alone it might be a very grave question, whether the legislature could require any additional qualification for the clerk, such as giving a bond, inasmuch as no such qualification is enumerated in this section; but we are relieved from any difficulty upon this point, so far as the requirement of a bond is concerned, by the 16th section. That section provides, that “ all laws relating to the clerks of the Court of Appeals, clerks of the several county courts, and Baltimore City Court shall be applicable to the clerks, respectively, of the Court of Appeals, the Circuit Courts, the Court of Common Pleas, the Superior Court and the Criminal Court of Baltimore city, until otherwise provided by law; and the said clerks, when duly elected and qualified according to law, shall have the charge and custody of the records and other papers belonging to their respective offices. ” ²⁷² If there was doubt as to the previous section there is none as to this. It intended to make applicable to the clerks elected under the new constitution, so far as they might relate thereto, all the laws then in existence, relating to the former clerks; and further to empower the legislature, from time to time, to amend or repeal those laws at will. In other words, upon every subject upon which statutes were in force relating to clerks, it was the design of the constitution to empower the legislature to legislate upon the same subjects.

But it was not the purpose of the constitution to authorise the legislature, under the shadow of this power, to impose new duties and qualifications not contemplated by the constitution or the then existing acts of Assembly. Among the laws relating to the former clerks, at the time of the adoption of the present constitution, were those requiring official bonds. We do not deem it necessary to go into an examination as to the precise state of the law upon this subject. It is sufficient for us to know, that the laws required bonds to be executed by the clerks, and therefore the power was vested in the legislature to regulate the subject, if it should be deemed necessary, by subsequent acts.

We think it clear, therefore, that it was within the power of the legislature to pass the act of 1856, chap. 286, so far as it requires the execution of a new bond by the clerk, and for its renewal every two years. It was simply otherwise provided bylaw as to the nature of the clerk’s bond. This leads us to the consideration of other and more difficult questions, namely, whether, in case of the neglect of the clerk to give the bond as required by the act, the effect of such omission would amount, ipso facto, to a vacation of the office; or if not, whether the legislature has power to provide for the removal of the clerk and for the appointment of his successor in case he fails to give the bond as required. We are of the opinion, that unless the omission to give the bond, of itself, vacated the office, the legislature had no power to confer upon the Superior Court the right to turn the clerk out upon any pretext or proceeding whatever, for the reason that the said 14th sec. expressly provides, that he shall be re ²⁷³ moved on conviction in a court of law; and as there could be, under the constitution,-no proceeding in the Superior Court in the nature of a criminal prosecution, against the clerk, there could be no conviction in that court, and, therefore, no removal.

The point then is, has the clerk, by omitting to give the bond, in the spirit of the constitution and laws, actually vacated his office, in the same manner as if he had resigned, removed from the State, or the like; or has he only done, or omitted to do, an act which amounts to such a wilful neglect of duty, that, upon conviction of which, he forfeits his office? If -the first, “ it was a case of vacancy in the office, ” and the Superior Court was right in filling the place, as is required by the aforesaid 14th section; but if it was the second, the court was wrong in attempting to fill the office before it had been made vacant by a conviction in a court of law. ' We cannot shut our eyes to the fact, that it was the design of the constitution, and the laws existing at the time of its adoption, that this clerk should give bond, and that such bond should constitute an essential qualification for the office. It would hardly be contended, that Mr. Dowling could have entered rightfully upon the duties of his office upon the mere force of. his election alone, without giving a bond under the constitution and laws as they then stood. The language of the constitution, that the clerks, “when duly elected and qualified according to law, shall have the charge