Gary v. Board of Trustees

Hammond, J., delivered the opinion of the Court. Benjamin Gary, the appellant, served as deputy State auditor from 1951 to January 1959 and by virtue of his position was a member of the Employees’ Retirement System. Just before he was to leave State service, he applied for continuation of his membership in the retirement system, relying on Code (1957), Art. 73B, Sec. 4, which provides that any member of the retirement system who is “currently a member by virtue of being an elected or appointed official” has the option to continue membership following the end of the term of office for which he was last elected or appointed, contingent upon his continuing to pay all sums which would have been ⁴⁴⁸ due by him and by the State if he had continued to be a member by virtue of holding elective or appointed office. His application was turned down on the ground he was not an official, and his petition for mandamus to require the retirement system to recognize his claimed rights followed soon after he had left State service, and was denied by Judge Harlan. 1 The parties agree that the question the case presents is whether the deputy State auditor, referred to in Code (1957), Art. 19, Sec. 29, is an “appointed official” within the meaning and intent of Code (1957), Art. 73B.

Some courts, relying on indications that the law-making body so intended, have said that the term official has a broader meaning than has the term officer in its technical sense, but generally the two words have been regarded as synonymous. Black’s Law Dictionary (4th Ed.) defines official as “an officer; a person invested with the authority of an office.” 67 C. J. S. Officers Sec. 2b (p. 102) says that the term official has been said to mean “an officer or the incumbent of an office created by statute or valid municipal ordinance.” Article 73B gives internal evidence that the legislatures which enacted it used the word official as another word for officer. Section 1 defines an employee as “any regular classified or unclassified officer or employee of the State for whom compensation is provided by State appropriation.” (Emphasis supplied.) Section 3(1) requires that every one who becomes “an employee as herein defined” must, as a condition of employment, become a member of the retirement system. Sections 4 and 5, the statutes relied on by the appellant, refer to elected or appointed officials who would have continued to be members of the system by virtue of holding “such elective or appointed office.” (Emphasis supplied.) ⁴⁴⁹ As we see it the case turns on whether the appellant was or was not an officer during his period of service as deputy State auditor. 2 This Court has laid down tests to aid in drawing the line between an employee and an officer, although it has said consistently that each case must be decided on its own facts, that no one of the tests is conclusive, and, from time to time, has varied the emphasis put on the respective tests.

Indications as to whether a public servant is or is not an officer are found in the presence or absence of the following: is he required to take an official oath; is he issued a commission; is a bond required; is the position called an office; is the position one of dignity and importance; does the public servant exercise in his own official right some of the sovereign powers of government for the benefit of the public; does he have a fixed tenure ? 3 The two tests which would seem to have been deemed most significant are the requirement of the oath and the delegation of sovereignty. School Com’rs v. Goldsborough, 90 Md. 193, 207 ; Truitt v. Collins, 122 Md. 526, 531 ; State Tax Commis ⁴⁵⁰ sion v. Harrington, 126 Md. 157, 159, 160; Buchholtz v. Hill, 178 Md. 280, 283 ; Jackson v. Cosby, 179 Md. 671, 675 ; Pressman v. D’Alesandro, 211 Md. 50, 55 ; Hetrich v. County Com'rs of Anne Arundel County, 222 Md. 304, 307. Appellant finds support for his claim that he was an officer in (1) the fact that Code (1957), Art. 19, Sec. 29, provided that the deputy shall “hold office” at the pleasure of the State Auditor; (2) that the position is one of dignity and importance in that the occupant supervises some thirty assistant auditors and the appointment by the State Auditor requires the approval of the Governor under the statute; (3) that the statutory qualifications for the office are almost as exacting as those of the State Auditor; and (4) that the statute requires the deputy to file a substantial bond. The force of his arguments as to the necessary qualifications of the deputy and the requirement of filing bond is weakened by the fact that the assistant auditors, who admittedly are employees and not officers, are also required to have high accounting qualifications and to file substantial bonds.

The position of deputy State auditor is certainly one of dignity and importance but these intangible attributes are relative and their precise value as tests of office somewhat elusive. There is force in appellant’s contention that the reference in the statute in effect while he was serving to the deputy holding “office” is helpful to his view. While the drawing of the line in this case is not free from difficulty, we think that when the Legislature did not require an official oath of the deputy and did not invest him in his own official right with any part of the sovereign power of the State, it showed that he was to be regarded as an employee rather than an officer. Appellant seeks to overcome these important and significant weaknesses in his claim to being an officer by saying (1) that in fact he took the oath before the State Auditor and, in any case, because his principal, the Auditor, was an officer he, the deputy, was impliedly required to take the oath even though the statute did not so specify; and (2) that during the illness, absence or incapacity of the Auditor he had the implied right ⁴⁵¹ to exercise the duties of that office and in fact did so when the Auditor became ill.

We think the determinative thing is that the statute did not require the deputy to take the oath prescribed by the Constitution as it did the Auditor. It is not the taking of the oath that is decisive but rather the statutory requirement that it be taken, which offers legislative indication that the position is an office. The statutes reiterate the importance the Constitution attaches to the requirement of the oath. Code (1957), Art. 70, Sec. 7, requires each elected and appointed officer to take the oath before the clerk of the appropriate court, and Section 8 directs that he shall inscribe opposite his signature in the Test Book the title of the office to which he shall have been elected or appointed.

The appellant did not do either. Section 11 of Article 70 provides that any person, whether elected or appointed to office, who shall decline or neglect to take and subscribe the prescribed oath “for the period of thirty days from the day when the commission of such officer has been received at the office of the respective clerks, or, in those cases in which no commission is sent to the clerks, within thirty days after receiving his commission or notice of his appointment, shall be deemed to have refused said office.” No commission was issued to appellant as is customarily done to every officer, and he did not take and subscribe the oath before the clerk as the statute requires. In the argument that because the Auditor is required to take the oath it is to be inferred that his deputy shall, appellant attempts to lift himself by his bootstraps, with no more success than is to be expected from such a maneuver. We read the applicable statutes as giving the deputy no authority to act in his own official name or right and, therefore, as showing that no part of the sovereignty of the State has been delegated to him.

Section 30 of Article 19 directs the State Auditor “with the aid of the deputy