State Tax Commission v. Harrington

Pattison, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Anne Arundel County sustaining a demurrer to the appellant’s petition and dismissing said petition. The prayer of the petition asks that a writ of mandamus be issued directed to the defendant, Emerson C. Harrington, Comptroller of the Treasury of the State of Maryland, commanding and requiring him to pay to the petitioner, the State Tax Commissioner, the sum of $1,750.00, consisting of two items each for the amount of $875.00, for the payment of the salaries of its general counsel, Edward M. Hammond and William W. Beck, for the period of the seven months from the first day of June, 1914. The facts are undisputed.

The State Tax Commission, •created and established by Chapter 841 of the Acts of 1914, •on or about the first day of June, 1914, under the alleged authority conferred upon it by the provisions of said Act, •appointed the said Edward M. Hammond and William W. Beck, general counsel to said commission. The said Edward M. Plammond and William W. Beck are now and were at the time of the passage of said Act of 1914 and at the time of their appointment as general counsel to said • commission, State senators from Howard and Kent Counties, respectively. The demurrer to the petition assails the validity of the said appointment of Senators Hammond and Beck, 1st. Because, ¹⁵⁹ as urged by tbe appellee, it is in violation of section 17 of Article 3 of the Constitution, which provides that “No senator or delegate, after qualifying as such, notwithstanding he may thereafter resign, shall during the whole period of time for which he was elected be eligible to any office which shall have been created, or the salary or profits of which shall have been increased, during such term;” and 2nd.

Because the provision of said Act authorizing and empowering the commission to “appoint an attorney at law of the State of Maryland to be and act as the general counsel of said commission,” conferred no power upon it to appoint more than one attorney as such general counsel, and that in appointing both Senators Hammond and Beck it exceeded the power so conferred upon it. We will consider and decide these questions in the order in which they are presented. We will, first, determine whether “general counsel” to the commission is an office within the meaning of said section 17 of Article 3 of the State Constitution. So far as we have been able to find, this Court has never defined nor has it been called upon to define what is or what is not an office within the meaning of this section of the Constitution.

It has, however, determined in a number of cases what is and what is not an office within the meaning of other sections of the Constitution and certain statutes of the State. As it is easier to conceive the general requirements of an office than to express them with precision in a definition that shall be entirely faultless, the Courts have ordinarily, in the different cases considered by them, passed upon the facts of each case and reached their conclusion from such facts whether the essential requirements of an office were or were not found therein. It will be found, however, by consulting the cases and the authorities, that the most general distinction of a public office is that it embraces the performance by the incumbent of a public function delegated to him as a part of the sovereignty of the State. Thus, in Mechem Pub.

Off., par. 4, it is said: “The most important characteristic which dis ¹⁶⁰ tinguishes an office from an employment or contract is that the creation and conferring of an office involve a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.” Atty. General v. Jennings (Ohio), 49 N E. 404. As was said by this Court in School Commissioners v. Goldsborough, 901 Md. 206 : “The nature of the duties, the particular method in which they are to be performed, the end to be attained, the depository of the power conferred and the whole surroundings must be all considered when the question as to whether the position is a public office or not is to be solved.” In that case the question presented was whether a school commissioner was an officer under section 15 of Article 2 of the Constitution, which provides that the Governor may remove, for incompetency or misconduct, all civil officers who receive appointment from the executive for a term of years.

It was there held that a School Commissioner was not an officer under said section and Article of the Constitution, and Iudge McSherby, speaking for the Court, said: “Civil Officers are governmental agents—they are natural persons— in whom a part of the State’s sovereignty is vested or reposed, to be exercised by the individuals so entrusted with it for the public good. The power to act for the State is confided to the person appointed to act. It belongs to him upon assuming the office.” And quoting from Collins v. N. Y., 3 Hun. 680 , the Court also said: “Probably the true test to distinguish officer's from simple servants or employes is the obligation to take the oath prescribed by law.” In Baltimore City v. Lyman, 92 Md. 591 , the question presented was whether the Superintendent of Public Instruction in the City of Baltimore is a municipal official within the meaning and intent of section 26 of the City Charter, which provides that “No person shall at any time ¹⁶¹ hold more than one office yielding pecuniary compensation under the Mayor and City Council of Baltimore, All municipal officials, except females, shall be registered voters of the City of Baltimore.” This Court in that case, quoting from Judge Cooley in the case of Throop v. Langdon, 40 Mich. 683 , said: “The officer is distinguished from the employee in the greater importance1, dignity and independence of his position; in being required to take an official oath and perhaps to give an official bond, in the liability to be called to account as a public offender for misfeasance in office, and usually, though not necessarily, in the tenure of his position. In particular cases other distinctions will appear which are not general.” And in the discussion of that case this Court said, speaking through Judge Briscoes “The Superintendent of Public Instruction is not appointed by the Mayor, or elected by the people, or appointed by joint-convention of the two branches of the Council.

He takes no official oath, gives no official bond, has no commission issued to him, and has no fixed or definite tenure of office, but is appointed at the pleasure of the School Board. * * * And all executive power, relating to educational matters is vested in the department known as The Department of Education,’ and this department is composed of the Board of School Commissioners. The Superintendent of Public Instruction exercises no power except what is derived from and through this board. He is simply, then, an employee or the agent of the School Board and not a municipal official, within the meaning of the Charter.” In the case of Clark v. Harford Agri. & Breed. Asso., 118 Md. 608 , the question was, are the members of the Racing Commission appointed under the Act of 1912, Chapter 132, persons “elected or appointed to any office of profit or trust under the Constitution or under the laws made pursuant thereto, and as such required to take and subscribe the oath required by the Constitution before they enter upon the duties of the position to which they were appointed.” We there held that it was not an office of profit and trust and ¹⁶² that they were not required to take the oath, prescribed by tbe Constitution, and in reehing this conclusion we followed the reasoning in tbe cases of the School Commissioners v. Goldsborough and Baltimore City v. Lyman, supra.

In Truitt v. Collins, 122 Md. 526 , in which tbe question here involved was last before us, after stating tbe law as we have here stated it and as laid down in tbe cases of School Commissioners v. Goldsborough, Baltimore City v. Lyman, Clark v. Harford Agri. and Breed. Asso., and other cases therein mentioned, including tbe case of Attorney-General v. Tillinghast, 203 Mass. 539 , reported in 17 Am. & Eng. Anno-Cases, 449, we held that the position of councilman in the municipal corporation of the Mayor and Council of Snow Hill was an office of profit within tbe meaning of Article 35 of tbe Declaration of Nights, and that it was an office of profit and trust within tbe meaning of section 6 of Article 1 of the Constitution, In reaching this conclusion, Judge Burke, in speaking for tbe Court, said: “That it is an office in some sense can not be denied. It is spoken of in tbe Act as an office and it certainly is one of profit and trust.

An examination of the charter will disclose that many of tbe powers of sovereignty were conferred upon tbe corporation. An 'enumeration of some of these sovereign powers of government will be found in section 16 of tbe charter. Section 6 of tbe charter declares that any person elected as Mayor or Councilman shall, before be enters upon tbe duties of bis office, make oatb before tbe Clerk of tbe Circuit Court for Worcester County, that be will diligently and faithfully, without favor, partiality or prejudice, perform tbe duties of such Mayor and Councilman.” And it was “in view of the duties and tbe nature and extent of tbe powers conferred by the Act of 1894, Chapter 455, upon tbe Mayor and Council of Snow Hill and of tbe fact that the Mayor and Oouncilmen were required to take an oatb of office before entering upon their duties” that we held that such position was an office of profit within tbe meaning of Article 35 of tbe Declaration ¹⁶³ of Nights, and an office of profit and trust within the aforesaid provision of the Constitution. The meaning of the word “office” necessarily varies with the connection in which it is used, and to determine it correctly in a particular instance, regard must be had to the intention of the Constitution or statute, as the case may be, and the subject-matter in reference to which the term is used.

It is true the meaning of the term “office” as given in the cases to which we have referred had reference to other sections of the Constitution and to certain statutes of the State, and not to the section of the Constitution now before us, and the meaning placed thereon in those cases was more or less dependent, as we have said, upon the connection in which said term was there used, but after a careful examination of this section, with the view of determining the meaning of the term “office,” we are unable to find such a distinguishing difference in the connection in which it is there used, and the connection in which it is used in the cases to which we have referred, as to warrant us in giving to it