Munroe v. Wells

Fowler, J., delivered the opinion of the Court. This appeal presents a question growing out of the repeal of Article 33 of the Code, title “ Elections,” and the re-enactment of said Article with amendments. At the November election of 1895 George Wells and Washington G. Tuck were candidates for the office of Clerk of the Circuit Court of Anne Arundel County. Wells was declared elected, was commissioned, took possession of the office, the duties of which he has since performed.

His election was contested by Tuck before the House of Delegates, which declared that Wells had not been duly elected, and thereupon ordered a new election to be held on the twenty-first of last April. The Act of 1896, ch. 202, re ⁵⁰⁹ pealing Article 33 of the Code, took effect from the day of its passage, namely, the 2nd day of April. On the eighth of April the appellants were appointed by the Governor to be supervisors of elections of Anne Arundel County upon the theory that the provisions of the Code relating to elections and registration, having been repealed by chapter 202, the supervisors who had been acting thereunder, had been legislated out of office and that, therefore, a vacancy existed which it was the duty of the Governor to fill. It appears, however, that just before the passage of the Act of 1896 the Governor had appointed these very appellants as supervisors for Anne Arundel County, under the then existing law, and it is provided by the second section of that Act that although so appointed before its passage, yet they should hold, and their appointments so made should to all intents and purposes be as if made under the said Act of 1896, by which their duties, term of office and mode of appointment are prescribed.

But under the provision of the Constitution, section 13, Art. 2, the appellants, as supervisors of election under the Act of 1896, could not enter upon the discharge of their duties until the first day of May, which was after the time fixed for the special election ordered to be held by the House of Delegates. It was, therefore, to fill a supposed vacancy between the second of April when the old law was repealed, and the first Monday of May, when the officers under the new law could enter upon their duties, that the appellants were, as we have said, again appointed by the Governor on the eighth of April. At the hearing of this case counsel for both parties united in a request that because of the public importance of the issue involved we would as soon as possible announce our conclusions upon the questions involved. This we did immediately after the argument, and we will now briefly state the grounds upon which that conclusion is based.

The controlling question is whether there were such a vacancy when the appellants were appointed by the Governor on the eighth day of April, as under the Constitution ⁵¹⁰ and laws of the State he was authorized to fill. If there was such a vacancy it must have been a vacancy in the office under the previous law or under the Act of 1896. It seems obvious there was no vacancy under the former, for it is conceded it was swept out of existence by the present law by which an entirely different method of appointment was provided. This being so, it follows that the previous law from the second of April when it was. repealed became absolutely inoperative for any purpose whatever.

Wade's case, 43 Md. 178 ; Dashiell's case, 45 Md. 615 . Hence the offices under the previous law have no existence after the second of April, and of necessity there could be no vacancy in them. Was there a vacancy under the Act of 1896 ? Confessedly not, for, as we have seen, the Governor had already appointed these