Sappington v. Slade

McSherry, C. J., delivered the opinion of the Court. This case was decided shortly after it had been argued, and a per curiam order was then filed. We will now proceed to give our reasons in support of the conclusion then announced. In eighteen hundred and ninety-eight, Governor Lowndes appointed William N. Mays, William W. Boyce and Charles A. Councilman, Supervisors of Election for Baltimore County.

The term of office prescribed by the Act of i8g6, ch. 202, sec. 1, is two years. These appointees duly qualified and entered upon the discharge of their duties. In September, eighteen hundred and ninety-nine, Mr. Mays resigned, and á few days later, the Legislature not then being in session, the Governor appointed Purnell F. Sappington for the residue of Mays’ term. When the General Assembly convened in January, nineteen hundred, the appointment of Mr. Sappington was not sent to.the Senate for ■confirmation.

Within the first fifty days of the session of nineteen hundred, Governor Smith nominated, and the Senate confirmed William A. Slade, Thomas M. Hill and Charles H. Wise, as the Supervisors of Election for Baltimore County, for the term of two years, to begin on the first Monday of May following. Commissions were duly issued to them, but Wise being ill was unable to qualify within thirty days after the receipt of his commission by the clerk. This failure to qualify created a vacancy under sec. 10, Art. ⁶⁴⁵ 70 of the Code, which declares that, “Any person whethér elected or appointed to office, who shall decline or neglect to take and subscribe the oaths prescribed by the Constitution * * * * * for the period of thirty days, from' the day when the commission of such officer has been received at the office of the respective clerks ****** shall be deemed to have refused said office.” The Governor thereupon reappointed Wise, vice himself, failed to qualify, and a new commission was issued to him. He qualified under this on the twelfth day of June, nineteen hundred.

Sappington refused to recognize the validity of this latter appointment, and claimed that he legally held the office under the recess appointment, which had been made by Governor Lowndes, in September, eighteen hundred and ninety-nine; but his claim to the office was denied and he then instituted these proceedings to procure a mandamus. requiring Wise to surrender and deliver up the office to him. The precise question raised by the pleadings is : Did the failure of Wise to qualify under the first commission issued to him, authorize Sappington to hold the office until a new appointment should be made by the Governor, and confirmed by the Senate? This question suggests, because it involves, the further question : How long was Sappington lawfully entitled to hold the office to which he had been-appointed in the fall of eighteen hundred and ninety-nine, during the recess of the Legislature ? The answer to these questions will be found in the Constitution of the State.

It must be borne in mind that Sappington’s appointment was not for a full term of two years and until his successor should be appointed and should qualify — it was a recess appointment for the residue of a partially filled term. Section 11, Article 2 of the Constitution makes express provision for just such a contingency. It reads as follows: “ 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 ⁶⁴⁶ of the Legislature, or -until some other person is appointed, to the same office, whichever shall first occur ; and the nomination of the person thus appointed during the recess, or of some other person in his place, shall be made to the Sen-' ate within thirty days after the next meeting of the Legislature.” No matter what language the commission issued to Sappington employed, the words of the Constitution are clear and emphatic, and they declare that the person appointed by the Governor during the recess of the Senate shall hold only until the end of the next General Assembly or until the appointment of some other person to the same office. The organic law thus limits the term of a person appointed by the Executive during a recess of the Senate to fill a vacancy, and nothing can extend that term beyond the limit so set.

The language is explicit — “ In case of any vacancy during the recess of the Senate in any office which the Governor has power to fill, &c.” Under no circumstances could Sappington have held in virtue of the recess appointment beyond the adjournment of the succeeding session of the Legislature. This would have been true even though no one had been nominated to and confirmed by the Senate in his place and stead. To recess appointments like that under which Sappington held, the provisions of sec. ip, Art. 2, of the Constitution do not apply. That section declares : “All civil officers appointed by the Governor and Senate, shall be nominated to the Senate within fifty days from the commencement of each regular session of the Legislature; and their term of office, except in cases otherwise provided for in this Constitution, shall commence on the first Monday of May next ensuing their appointment, and continue for two years (unless removed from office) and until their successors, respectively, qualify according to law * * Under this section a civil officer holds for the term of two years and until his successor shall qualify ; whereas a recess appointment cannot, under section 11, continue beyond the close of the next ensuing Legislature, Nor can the General Assembly disregard sec ⁶⁴⁷ tion 11 when the office is a civil office which must be filled in the first instance by Executive appointment.

It is true the statute — Act of 1896, ch. 202, sec. 4 — declares that “ in case of any vacancy in the number of said supervisors of election occurring when the Legislature is not in session, the Governor