Purnell v. State Board of Education

Constable, J., delivered the opinion of the Court. This appeal involves the construction and interpretation of section 5, Article 77, of the Code, being a portion of Chapter 584 of the Acts of 1904, and relates to the formation of the State Board of Education. The appellant filed a petition, praying that the writ of mandamus issue directing the State Board of Education to recognize him as a member of said board, and ordering the appellee, .Henry' Shriver, to vacate the office of membership in said hoard, unlawfully held by him. . ²⁶⁸ The petition alleged that the petitioner had been appointed .a member of said board on the 27th day of April, 1908, for n term of six years from said date, and until his successor should be duly appointed and qualified; that the Gtovemop, •during the session of the General Assembly, in the year 1914, nominated to the Senate as his successor, the appellee, Henry . Shriver, bnt that the Senate adjourned without acting upon said nomination; that after the adjournment of the General ’ Assembly, the Governor on the 30th day of April, 1914, undertook to appoint the said Henry Shriver to said office, •as the successor of the petitioner, without the advice and consent of the Senate, and issued a commission to him; that at the next succeeding session of the State Board the said board refused to recognize the petitioner as a member, but >did recognize the said Henry Shriver as a member thereof.

The appellees demurred to the petition, and upon the lower Court sustaining the demurrer and dismissing the petition, this appeal was taken. The statute involved is as follows: “The Governor, by and with the advice and consent of the Senate, if in session, and without said advice and consent when not in session, shall appoint before the first Monday in May, next ensuing, six persons, at least two of whom shall he from the political party which at the last preceding election for Governor received next to the highest number of votes, said minority representation of at least two members as aforesaid to be continued thereafter, to he members of the State Board of Education, two of whom shall hold office for a term of four years from the first Monday in' May next succeeding their appointment and until their successors shall qualify; the Governor shall, at the time of making said appointment, designate the term of years of each of said members when first appointed under this article; the term of office of said members, after the expiration of the term for which first appointed, shall be a term of six years, and to take the places of the members of said hoard whose terms of •office shall so expire, the Governor shall, every two ²⁶⁹ years after April 12, 1904, before tbe first Monday in May in such years, appoint two persons as members of said board to serve for terms of six years from tbe first Monday in May next succeeding tbéir appointment, and until their successors shall qualify; said persons shall be of high character, integrity and capa- 1 city; these six members, together with the Governor and the State Superintendent of Public Education, shall constitute the State Board of Education, but principals of the state normal schools and of the normal department of any school or college under the control of the State Board of Education whose certificates are recognized by it shall be ex officio honorary members of this board, but with no vote. In case of a vacancy by death, resignation, disqualification or otherwise, the Governor shall fill such vacancies.” It is not claimed that the appointment was made by virtue of the power contained in the last sentence of the section, relating to the filling of vacancies, for although the term for which the appellant had been appointed had expired, yet as he was 1» continue to hold the office until his successor was appointed and qualified, there would be no vacancy between the expiration of the definite term and the appointment and qualification of the successor. In other words to authorize an appointment under the vacancy clanse, the vacancy must actually exist at the time the appointment is sought to be made, for otherwise the incumbent holds on with all the powers and duties of his appointment.

Smoot v. Somerville, 59 Md. 84; Ash v. McVey, 85 Md. 119 . It is claimed, however, by the appellant that the appointment of his successor without the advice and consent of the Senate, was an illegal appointment, and without any effect, and that, therefore, he is entitled to hold the office until his successor is legally appointed and qualified. "Whether or not the Governor is authorized, except in cases of vacancies, under the provisions of section 5, Article 17, to appoint successors to the State ²⁷⁰ Board of Education without concurrence of the Senate, is the sole question to he determined in this case. This Board is of legislative creation, and no question can now be raised in this State as to the powers of the Legislature to modify, control or abolish it, embracing therein the power to change the manner of appointment of its members, for this Court has many times expressly emphasized this.

Anderson v. Baker, 23 Md. 627 ; Warfield v. County Comm., 28 Md. 76 ; Townsend v. Kurtz, 83 Md. 331 , and Ash v. McVey, supra. The State Board of Education was created by Chapter 311 of the Acts of 1870, by which, and by all amendments thereto until the present Act, all