Hetrich v. County Commissioners

Hammond, J., delivered the opinion of the Court. The appeal is by taxpayers who sought unsuccessfully to have the Circuit Court for Anne Arundel County issue the writ of mandamus to compel Frank W. Wilde to vacate the office of County Commissioner by reason of having accepted the office of County Business Manager. Wilde was elected in 1958 to a four year term as commissioner, was made president of the Board of Commissioners, and is still serving in both capacities. The County Business Manager resigned on March 24, 1959, and that same day the Board accepted the resignation as of March 31 and “appointed Frank W. Wilde as Acting County Manager without pay until a permanent County Manager is appointed.” Wilde took over the duties of Manager on April 1, and on April 17 executed a bond for faithful performance in the amount of $25,000 as required of that officer by Sec. 2-37 of the Anne Arundel County Code (1957 Ed.).

On May 28, 1959, the petition for mandamus was filed, and on June 9 Wilde ceased acting as Manager. It is stipulated that he received no salary other than as County Commissioner and took no oath of office. Below, as in this Court, the case proceeded on the recognition that a County Commissioner holds an office of profit within the meaning of Article 35 of the Declaration of Rights of the Maryland Constitution. The trial judge held that the position of County Business Manager was also an office of profit and one incompatible with the office of County Commissioner under common law rules, so that the acceptance of ³⁰⁷ the second office may have caused Wilde automatically to have vacated the first.

He held, however, that in the exercise of a sound discretion the writ need not issue because it would serve no useful purpose in that Wilde at the time of trial had vacated the second office. We concur in the result reached by the trial judge, although for reasons that differ from his. We agree that the County Business Manager of Anne Arundel County is an officer. A number of tests have evolved as aids in recognizing an office—is an oath prescribed, does the holder exercise some part of the sovereign power in his own right, is a commission issued, is there a definite term or tenure fixed by law, is a bond required?

None of itself necessarily is determinative. In Pressman v. D’Alesandro, 211 Md. 50, 55 , the ultimate test was succinctly stated in this fashion: “This Court has stated that a position is a ‘public office’ where it has been created by law and casts upon the incumbent duties which are continuing in their nature and not occasional and call for the exercise of some portion of the sovereignty of the State. Buchholtz v. Hill, 178 Md. 280 , 13 A. 2d 348 .” See also State to Use of Clark v. Ferling, 220 Md. 109, 113 . The Act which provided for a County Business Manager—Chapter 638 of the Acts of 1947, codified as Sections 2-35 through 2-42 of the Anne Arundel County Code (1957 Ed.), says in Sec. 2-35: “There is hereby created the office of county business manager.” Sec. 2-36 refers to “the duties of his office.” Sec. 2-39 provides that “[i]n the performance of his duties * * * the county business manager shall represent the county in all departments of the county government.

It is the intent of this article to place under his direct supervision all departments, offices and agencies of the county government within the limits now or hereafter imposed upon the jurisdiction of the board of county commissioners * * Sec. 2-40 requires the manager, among various other things, to “[a'Jppoint and, when necessary for the good of the service, remove any officers and employees of the county * * *” (other than in the police department and board of licensing commissioners). Sec. 2-37 requires the manager to file a bond in the sum of $25,000. Clearly, the manager exercises continuously a substantial part of the governmental power in Anne Arundel County. ³⁰⁸ We agree with the trial court also that the offices oí County Business Manager and County Commissioner are incompatible. The fundamental test of incompatibility at common law is whether there is a present or prospective conflict of interest, as where one office is subordinate to the other or subject to supervision by the other, or where the incumbent of one office has the power to appoint or remove or to set the salary of the other.

McQuillen, Municipal Corporations, Sec. 12.67 (3rd Ed.); 67 C.J.S., Officers, Sec. 23 (a). The statute puts the power of appointment and removal of the Manager in the County Commissioners and they fix his salary over a minimum. “He shall be responsible to the board of county commissioners for the proper administration of all affairs of the county * * *.” In Lilly v. Jones, 158 Md. 260, 266 , in holding that one who was a member of both the City Service Commission and the Port Development Commission held incompatible offices, this Court adopted this standard: “The test of incompatibility is the character and relation of the offices; as where one is subordinate to the other, and subject in some degree to its revisory power; or where the functions of the two offices are inherently inconsistent and repugnant. In such cases it has uniformly been held that the same person cannot hold both offices.” The language is apposite here, and the applicable code provisions makes it clear that the two offices are incompatible. The general rule at common law is that if an officer accepts a second office which is incompatible with the first, he vacates the first.

Lilly v. Jones, supra. Many courts have adopted a qualification to the general rule if the one who accepted the second office was ineligible for that office. It is held in such instances that the attempted appointment was void, a nullity, and that the second acceptance was illusory, some courts deciding that the incumbent was not even a de jacto officer, others that he was. In Kimble v. Bender, 173 Md. 608 , Kimble was appointed a justice of the peace for Allegany County, an office created while he was a State senator.

The Court held that he was ineligible as a justice because Sec. 17 of Art. III of the Con ³⁰⁹ stitution of Maryland specifies that no senator shall during the term for which he was elected “be eligible to any office, which shall have been created * * * during such term.” Judge Parke, for the Court, said (p. 622) : “The appointment of an ineligible person is a nullity, except that the official acts of such a person are regarded as the acts of an officer de facto. So the official acts of the ineligible respondent, who has acted as a justice of the peace at large under a valid act but under an invalid appointment are the acts of a de facto officer, * * * are as valid and effective, where they concern the public or the rights of third persons, as though he were an officer de jure.” The ineligibility which makes the appointment to a second office a nullity has not been limited to that created by constitution or statute. Even in the absence of these formalized prohibitions, at common law, on the ground of public policy a member of an