McBlair v. Bond

Alvey, J. delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court for Anne Arundel County, refusing to the appellant the writ of mandamus to restore him to the office of Adjutant General of the State, of which, as he alleges, he has been wrongfully and unlawfully dispossessed by the appellee. The facts of the case are all disclosed in the pleadings, and the questions thereon are raised by demurrer. The case has been argued with rare ability by the counsel of the contestants, and every argument has been urged in support of their respective positions that ingenuity could suggest.

Several questions of grave importance have been discussed, but in the view we have of the case, it will not be necessary to decide more than one of the questions raised on the pleadings; and that question is, whether the appellant was liable to be removed from the office of Adjutant General, to which he had been legally appointed, simply by the appointment and qualification of a successor, without the sentence of a court-martial having been pronounced against him; it being admitted that the appellee, during the last session of the Legislature, was appointed to the office by the Governor, by and with the advice and consent of the Senate, and that, after being commissioned, and having qualified, he entered the office and excluded the appellant from the further discharge of its functions. This question depends for its solution upon the proper construction of certain provisions of the Constitution of the State. By Art. 9, sec. 2, it is provided that there shall be an Adjutant General, appointed by the Governor, by and with the advice and consent of the Senate ; and that “ he shall hold his office until the appointment and qualification of his successor, or until removed in pursuance of the sentence of a Court-martial.” ¹⁵⁴ By Art.. 2, sec 10, defining the powers of the Governor, it is declared that he shall nominate, and, by and with the advice and consent of-the Senate, appoint all civil and military officers of the State, whose appointment or election may not be otherwise provided for ; and by sec. 11 of the same Article, it is provided that in case of any vacancy, during the recess of the Senate, in any office which the Governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue -in ■force until the end of the next session of the Legislature, or until some other person is appointed to the same office, whichever shall first occur. And by sec. 15 of the same Article, the Governor has power to remove any military officer of the State, in pursuance of the sentence of a Court-martial.

The Adjutant General, prior to the adoption of the Constitution of 1851, held his office during good behaviour, removable only by sentence of a Court-martial. Watkins vs. Watkins, 2 Md., 341 . But, by the Constitution of 1851, Art. 9, sec. 2, it was provided that the Adjutant General should be appointed by the Governor, by and with the advice and consent of the Senate, and that he should hold his office for the term of six years. By the Constitution of 1864, Art. 9. sec. 3, while the Adjutant General was to be appointed by the Governor, with the concurrence of the Senate, he was to hold his office at the pleasure of the Governor.

It has been contended in this case, that, the appellant being rightfully in office, there was no power in the Governor, with the concurrence of the Senate, to remove him, except in the single event of conviction and sentence by Court-martial; and the argument in support of this position is- mainly derived from the fact that the Convention which framed the present Constitution, declined to readopt the tenure of office that had been prescribed either by the Constitution of 1851, or that of 1864 ; and ás it pre ¹⁵⁵ scribed no specific time for which the incumbent should hold, it must be supposed to have been the intention of the Convention to restore to the office the tenure by which it was held under the old Constitution of 1776, which was in force until superseded by the Constitution of 1851. But in this conclusion, from the best consideration we have been able to give the subject, we cannot agree. It is true, the Constitution, by Art. 9, sec. 2, does not prescribe any certain or particular term for which the Adjutant General shall hold his office, but it has, we think, plainly designated the event and manner by which his holding shall terminate, and that is, the appointment and qualification of his successor. The Governor has no power, as he had under the Constitution of 1864, to remove the incumbent at his own mere will and pleasure; but with the concurrence of the Senate, a successor may be appointed, and upon the qualification of the appointee, the incumbent’s right to hold will, eo instanli, terminate.

This, we think, is the plain meaning of the Constitutional