Little v. Schul

Thomas, J., delivered the opinion of the Court. In March, 1912, the Mayor and City Council of Baltimore passed Ordinance Ho. 87, appointing two constables for each of the wards of the City, except the eighth and twelfth wards, for each of which only one constable was appointed, one constable for each of said wards having been previously appointed. By that ordinance, which was approved by the Mayor on the 19th of March, 1912, the appellee, William E. Schul, and James Barnes were appointed constables for the first ward for two years from the date of its passage. The appellee had been a constable for sixteen years, and had always qualified before Thomas A. Campbell, a deputy clerk of the Superior Court of Baltimore City.

He was told by olre of the constables appointed by said ordinance that the ordinance had been signed by the Mayor, and on the 4th of April, 1912, he went to the office of the appellant, the clerk' of the Superior Court, and told Mr. Campbell that he had heard that the ordinance had been signed by the Mayor and that he had come there to qualify. Mr. Campbell told him that he did not have a copy of the ordinance, that it was in the city solicitor’s or the Mayor's office, but that the “People’s Court Bill” had been passed by the Legislature, and that he was no longer a constable and that he could not swear him in. On Saturday, the 11th of May, the appellee went to the office of the appellant with his attorney and requested Mr. Campbell-to administer to him the official oath. Mr. Campbell explained to the attorney that he did not, have a copy of the ordinance or a certificate of the appointment of the appellee, and referred them to the appellant.

Appellee’s attorney then left the office to procure a certified copy of the ordinance, but when he returned the ⁴⁵⁷ appellant was not there. The following Monday, May 13th, the appellee, and his attorney again went to the office of the appellant, and, producing a certified copy of the ordinance and a dnlv executed bond, requested the appellant to administer to the appellee the oath required by law to he taken and subscribed by constables, but the appellant refused to do so. It appears from the testimony of Mr. Campbell that he had been deputy clerk of the Superior Court of Baltimore City for the last fifteen years, and that during that time the constables of Baltimore City have generally qualified before him: that ever since Ex-Governor White was City Solicitor, and for a number of years, it had not been the practice or custom in Baltimore City to issue commissions to constables, but the Clerk of the Superior Court receives from the Mayor’s office a certified copy of the ordinance appointing constables, or a notice of their appointment, and when the constables come to the clerk’s office he gives them a bond, and when it is executed and returned to him and has been approved, he administers to them the official oath, and after the oath has been taken and subscribed, he gives them a certificate showing that, they have duly qualified, and that that certificate is the only commission or certificate1 1hev receive. ITpon the refusal of the appellant, on the 13th of May, 1912, to administer the official oath to the appellee, the appellee, on the same day, filed in the Baltimore City Court a petition alleging that he had been duly appointed constable for the first ward of Baltimore City by ordinance No. 87 of the Mayor and City Council of Baltimore, a copy of which was filed with the petition, and that on the 13th of May, 1912, he exhibited to the appellant, as clerk of the Superior Court of Baltimore City, a certified copy of said ordinance, and tendered to him a bond duly executed, as required by law, and requested the appellant to administer to him the oaih which the law requires to he taken and subscribed by constables, and that the appellant refused to administer said oath to him, and praying for a writ- of mandamus commanding the appellant to administer said oath to him, and, upon ⁴⁵⁸ his taking and subscribing said oath, and presenting the bond, as required by law, and paying the necessary fees, to issue to him a certificate showing that he is a duly qualified constable of Baltimore City: The answer of the appellant alleges that the appellee was appointed a constable of Baltimore City prior to the 19th day of December, 1908, and that he qualified as constable on that day; and that he had since been acting as constable of Baltimore City “under said appointment and qualification.” It admits the passage of ordinance No. 87, but denies that the appellee was thereby appointed constable for the first ward of Baltimore City.

The answer further alleges that the appellee did not make, or offer to make the declaration of religious belief, and did not take and subscribe, or offer to take and subscribe the oath required by the constitution within thirty days after his appointment or the passage of ordinance No. 87, and that -the appellee did not offer to give a bond, with good and sufficient security, approved by the Judge of the Superior Court of Baltimore City, as required by law, and that by reason of such failure and neglect on the part of the appellee he was not entitled to have said oath administered to him. The ninth paragraph of the answer charges as á further reason why the writ should not be granted, that section 206 of the charter of Baltimore City, in pursuance of which ordinance No. 87 was passed, was repealed by the Act of 1912, Chapter 823, commonly called the “People’s Court Bill,” which went into effect on the 2nd of May, 1912, and that at the time the appellee offered to qualify, on the 13th of May, 1912, his appointment had, by said Act, been annulled and made void, and that, therefore, he was not entitled to qualify as a constable of Baltimore City. The appellee demurred to the ninth paragraph of the answer, and after the taking of the testimony to which we have referred, the Court below passed an order sustaining the demurrer, and directing the writ to issue as prayed, and this appeal is from that order. ⁴⁵⁹ The contentions of tlie appellant are, first, that ordinance Xo. 87, appointing the appellee, was not passed in accordance with the provisions of section 25 of the charter of Baltimore City, and is, therefore, void and of no effect; second, that the appellee failed to qualify within the time prescribed by law and thereby forfeited his right, to the office, and third, that section 200 of the charter of Baltimore City, in pursuance of which the ordinance appointing the appellee was passed, was repealed by the Act of 1912, Chapter 823, which wont into effect on the 2nd day of May, 1912, and his appointment was thereby annulled before he offered to qualify on the 13th of May, 1912. 1. Taking up these several contentions in the order in which they were presented in this Court, without meaning to question the validity of the Act of 1912, Chapter 823, which in our view of the ease is not involved in this controversy, we think it quite clear that where an appointment to a public office is made in pursuance of the provisions of the Constitution, and the Constitution fixes the term of office, the appointment cannot be revoked or annulled, or the term of office abridged or extended by the Legislature unless it is authorized to do so by the Constitution.

It is said in 23 Ency. of Law (2nd ed.), on page 406, where many cases are cited in support of the text, that, “In the United States the terms of certain officers are not infrequently fixed by the State Constitutions. Where this is the case the Legislature cannot extend or abridge the terms so fixed, either directly or indirectly,” and it is stated on page 431, “When the Constitution has declared the grounds or mode of removal of an incumbent before the expiration of his term, the Legislature has no power to authorize the removal or suspension of the officer for any other reason or in any other mode.” In the case of Marshall v. Harwood, 5 Md. 423 , the Court, referring to the term of State librarian, which was fixed by the Constitution at “two years, and until his successor shall be elected and qualified,” said, “we are clear the Legislature would have no power to curtail the term, by making it end ⁴⁶⁰ during the session at which the election took place.” It was said by the Supreme Court of Ohio in State v. Brewster, 44 Ohio St. 589 , 9 N. E. Rep. 849: “The assumption of counsel that there is no power in the general assembly to extend the term of an office, which is limited by the Constitution, is abundantly warranted by State v. Howe, 25 Ohio St. 588 , where it is said by MoIlvaike, C. J.: “After a careful examination of the question, in the light of both principle and authority, we are led to the conclusion that the general assembly may provide against the occurrence of vacancies by authorizing incumbents to hold over their terms, in cases where the duration of their terms is not fixed and limited by the Constitution. Also — in cases where the duration of the term of office is limited by the Constitution, of course its duration cannot be extended by statute.” And in the case of People v. Knopf, 198 Ill. 340 , 64 N. E. Rep. 842, the Court, after citing Mechen, Pub. Off., sec. 387, in support of the statement that the Legislature had no control over a term of office fixed by the Constitution, and “could not extend or diminish it,” and after referring to the authority given the Legislature to increase the number of judges of the Superior Court, then said, “but the term for which judges should be elected was not entrusted to such discretion, and the Legislature had no power over it.

The people determined that question for themselves and fixed the term at six years. The Legislature had no authority to inaugurate or put in effect a scheme opposed to that provision, by which judges should be elected for two years, instead of six.” Section 42 of Article 4 of the Constitution of Maryland, relating to justices of the peace and constables, is as follows: “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; and ⁴⁶¹ justices of the peace and constables so appointed shall be subject to removal by the judge or judges having criminal jurisdiction in the county or city, for incompetency, wilful neglect of duty, or misdemeanor in office, on conviction in a Court of 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 judges of justices of the peace, as hath been heretofore exercised, or shall be hereafter prescribed by law.” This section not only declares how constables shall be appointed, but it fixed the term of office at two years, and provides how they may be removed. The Legislature may regulate the number of constables to be appointed for the -wards of Baltimore City and the election districts of the counties, but it cannot in so doing revoke or annul the appointment-, or diminish the term of office of a constable who has already been lawfully appointed, and who is not subject to removal except in the manner provided by this section.

The power to appoint for a definite term is given to the Mayor and City Council of Baltimore and the County Commissioners of the counties, and the authority to remove from office is conferred upon the judges of the Courts having criminal jurisdiction, and then only upon conviction of incompetency, etc., in a Court of law. Where the appointing power thus conferred has been lawfully exercised, the right of the person appointed to the office for the term fixed by the Constitution is beyond the control of the Legislature. It is urged by counsel for the appellant that this rule can only apply to one who has qualified and is in office, and he cites and relies upon the cases of Thomas v. Owens, 4 Md. 189 , and Jump v. Spence, 28 Md. 10 . These cases; however, only go to the extent of holding that one who is appointed or elected to an office is not entitled to the salary attached to that office until he has qualified, and the argument of counsel loses sight of the distinction between the right to receive the salary, which ⁴⁶² cannot arise until there has been a complete investiture of the office, and the right of the person appointed to qualify, in order that he may exercise the functions and enjoy the benefits of the office.

It is this right to qualify, which vests immediately upon the complete and lawful exercise of appointing power, and which is distinctly recognized in the cases relied on by the appellant, that the people, in the adoption of the present Constitution, did not leave, in the case of constables, subject to the control of the Legislature. In Thomas v. Owens, the Court stated that the Comptroller, “after his election and commission by the Governor; had the right to invest himself with the powers and entitle himself to the salary, by qualifying in the manner pointed out by the Constitution.” In the case of Dyer v. Bayne, 54 Md. 87 , Judge Axvey said, “The Governor made the nomination of the plaintiff within the fifty days, and before the first Monday of March, 1880. The Senate was under no restriction as to time within which it should act upon the nomination; and having confirmed the nomination during the regular session, the appointment was complete from the time of such confirmation. United States v. Bradley, 10 Pet. 364 .

The Governor had no discretionary power over the appointment after confirmation, nor had he power to withhold the commission, for the issuing of the commission was a mere ministerial act. The efficient and only discretionary act of the Governor in making the appointment, was in making the nomination, and the Senate having no power over the nomination than to concur or non-concur in it, the act of the Governor became complete and effective with the concurrence of the Senate.” In the case of Marbury v. Madison, 1 Cranch, 137 , the right of an officer who had been duly appointed is stated by the Court in the following clear and concise terms, “Where an officer is removable at the will of the executive, the circumstances which complete his appointment is of no concern; because the act is at any time revocable, and the commission ma.y be arrested, if still in the office. But when the officer is not removable at the ⁴⁶³ will of the executive, the appointment is not revocable, and cannot be annulled; it has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made.

But having once made the appointment, his power over the office is terminated, in all cases where, by law, the officer is not removed by him. The right to the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it.” “Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office gave the officer the right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.” In the case at bar the Constitution authorized the Mayor and City Council of Baltimore to make the appointment for a term of two years, and the ordinance was passed by the City Council and approved by the Mayor before the Act of 1912, Ch. 823, went into effect. The discretion