Thomas v. Owens

Eccleston, J., concurred with the majority of the court in the affirmance of the order, but dissented upon one point, upon which he delivered the following dissenting opinion: I concur with the majority of the court in their conclusions, except in reference to the period at which the salary of the Comptroller commenced. According to my construction of the constitution, he was not qualified to perforin the duties of the office, until he took the oath and gave the bond prescribed by the act of 1852, ch. 12. Believing, as I do, that salary is given as compensation for services, I cannot understand how an officer can be entitled to salary for any period of time, during which he could not legitimately perform his official duties. There can be no doubt that the convention intended this officer should give bond.

And if so, the provision was designed to protect the State against official misconduct. Simply taking the oath prescribed in the 4th sec. of the 1st art. of the constitution, it is manifest, was not deemed sufficient to afford the necessary protection. For after requiring all ²¹⁶ officers to take the-oath just mentioned, it is provided in the' 1st sec. of the 6th art., that the Comptroller shall take such oath and give such bond as the legislature shall prescribe. After making this provision for the security of the State, how can it be supposed the convention did not intend to require a full compliance with the act of the legislature, before the duties of the office could be assumed?

If the bond be necessary for any portion of time during the performance of official duty, it must be equally necessary during the whole term of office; if the protection of the State against misconduct of the officer is the object to be attained. Suppose that subsequent to the act of the legislature the Comptroller had refused to comply with its provisions, insisting that he was already in office, and would perform its duties and demand his salary, upon the ground that he had taken the oath directed in the 1st article, could it be successfully maintained that he had the right to do So? I think not. If not, then why?

It could only be for the reason that he was not qualified. And yet, in the supposed case, every requisite to constitute him Comptroller would exist, except a compliance with the legislative act. There Was no necessity for permitting the officer to enter upon his duties before the action of the legislature, for the 8th sec. of the 10th art. provides, that the officers holding commissions under the old constitution, should continue to hold and exercise their offices, according to their existing tenure, until they should be superseded pursuant to the new constitution, and until their successors should be duly qualified. Under this provision the Treasurer was authorised to continue, and in fact did continue, to perform the duties of the treasury department, until after the passage of the act in reference to the qualification of the Treasurer and Comptroller.

The authority of the legislature to pass such a law, and the imperative obligation of the officer to comply with its terms, are to be found in the 6th article of the constitution. And, in my judgment, not only did that instrument give authority to the legislature to act in the premises, but when, in relation ²¹⁷ to that important branch of the government, the treasury department, it declared that the Comptroller “shall take such oath and enter into such bond, for the faithful discharge of his duties, as the legislature shall prescribe,” it imposed a duty upon the legislature to pass a law on the subject. When passed under such express requirement of the constitution, compliance with the provisions of the act became as necessary preliminary steps in the qualification of the Comptroller, as if the same provisions had been set forth in the constitution itself. It will avail nothing to say that the construction here contended for, would authorise the legislature, by refusing to act, virtually to nullify an election by the people and to repeal the constitution, in regard to the office of Comptroller.

In every constitution there must be trusts or powers confided to the different branches of the government; a failure or refusal to perform which, would render nugatory and void some of the most important provisions of the organic law, and deprive individuals of valuable rights, for which there can be no relief, except through the ballot box, by removing the delinquent officers. Notwithstanding such inconveniences may result from the necessary imperfection of all human affairs, yet when the creation of rights, or the completion of those which are imperfect, depends upon legislative enactments, such rights are not created or perfected, in consequence of the failure to act. If the possibility of neglect to execute, or of a corrupt execution of, a power, is a sound argument against its existence, then there are no constitutional powers, for any of them may be neglected or corruptly executed. Suppose a vacancy in the office of Treasurer, occasioned by death, during the session of the legislature.

Now, if they should neglect or refuse to appoint a successor, and after their adjournment the governor should decline filling the vacancy, the treasury department would be in quite as bad a predicament, as it would be placed by the construction for which I have been contending, even if the legislature bad refused to pass any law in regard to the oath and bond of the Comp- ²¹⁸ trailer, and yet I presume it will not be said that the legislature and governor have no power of appointment under the supposed circumstances. Le Grand, C. J., delivered the opinion of this court. This is an appeal from an order of the circuit court for Anne Arundel county, refusing to grant a writ of mandamus to be directed to the appellee, commanding him to pay the amount of a draft drawn upon him by the late Comptroller of the State treasury. The petition of the applicant stated, that he was duly elected Comptroller of the treasury on the 5th day of November 1851,. and, that after having qualified, according to the constitution and laws of this State, he entered upon the discharge of the duties of the office, and continued therein until the 20th day of April 1853: that on the 15th day of April, he issued a warrant on the appellee, who was then, (and who is still,) the Treasurer of the State, for the sum of $1111.11, “in payment of so much salary due him as Comptroller of the treasury department, to be paid pursuant to the provisions of the constitution, and also pursuant to chapter — of 1853:” that he caused payment of said warrant to be demanded of the Treasurer, and that he refused to pay the same.

To this petition the appellee answered, objecting to the issue on several grounds, which are in substance as follows: 1st. That as Treasurer of the State of Maryland, he is not liable to the supervision or control of the circuit court in the manner prayed for in the petition. 2nd. That no sufficient appropriation has been made by law, specifying a sum applicable to the payment of the amount claimed by the petitioner. 3rd. That the petitioner did not qualify as Comptroller, according to the constitution and laws of this State, until the 24th day of February, in the year 1852, and remained in office until the 20th April 1853: that he has been paid out of the treasury of the State for his services as Comptroller the sum of $2595.83. ²¹⁹ There were other objections interposed, but they are all resolvable into those which we have given.

The difference between the Treasurer and the late Comptroller in regard to the amount of the claim of the latter, consists in this; The Treasurer is of opinion he is only entitled to be paid from the 24th day of February, while the late Comptroller holds, that he is entitled to be paid from the day of his election, the 5th of November 1851. We agree with neither of these opinions. The 1st section of the 6th article of the constitution, provides for the establishment of a treasury department, “ consisting of a Comptroller, chosen by the qualified electors of the State, at each election of members of the House of Delegates, who shall receive an annual salary of two thousand, five hundred dollars; and of a Treasurer, to be appointed by the two houses of the legislature, at each session thereof, on joint ballot, who shall receive an annua] salary of two thousand, five hundred dollars.” The 4th section of the 3rd article declares, that “the members of the House of Delegates shall be elected by the qualified voters of the counties and the city of Baltimore respectively, to serve for two years from the day of their election.’>'> It has been contended on the part of the appellant, that these two sections ought to be considered together, and that they fix the term of service of the Comptroller at two years from the day of his election. This, in our judgment, does not necessarily follow from the language of either or both.

The 1st section of the 6th article merely provides, that the Comptroller shall be “ chosen” at each election of members of the House of Delegates, and not, as in the case of the delegates, that he “shall serve for two years from the day of the election.” There are other clauses in the constitution which have an important bearing on the true interpretation of the language of the constitution in regard to the Comptroller. The time is specified from which the Executive, the Judges of the Court of Appeals, District Attorneys, Lottery Commissioner, and other officers, are to hold. And the 4th section of the 1st article of ²²⁰ the constitution provides, “that every person elected or appointed to any office of profit or trust under the constitution or laws made pursuant thereto, before he shall enter upon the duties of such office, shall take and subscribe” the oath or affirmation given in the section. Now, we hold, that the late Comptroller could not be considered as in office until he qualified by taking the oath prescribed by the 4th section of the 1st article.

After his election and commission by the Governor, he had the right to invest himself with the powers and entitle himself to the salary, by qualifying in the manner pointed out by the constitution; but, until he actually did qualify, he was no more Comptroller than any other citizen; his qualification being an indispensable prerequisite to his investiture with the authority and responsibilities of the office. But, it is said, that although he would not be permitted to discharge the duties of the office until his qualification, yet, when he did qualify, such qualification by operation of law, would relate back to the day of his election, and entitle him to compensation from that time. There is a dictum in the case of Marbury vs. Madison, 1 Cranch., 151, which gives color to such a doctrine. It is there said, “a commission bears date, and the salary of the officer commences from his appointment, and not from the transmission or acceptance of his commission.” This opinion was not necessary to the decision of the case, and, as a proposition applicable to every instance of a commissioned officer, we cannot give it our assent.

We must give to the constitution under which we live a common sense interpretation, and it is clear to our minds the purpose, in this regard, of its framers, was to make no gratuities, but to pay for services actually rendered, and that no one under it is authorised to claim a salary attached to an office, until he has accepted it and qualified himself by taking the prescribed oath. In fact the constitution expressly declares, that “if any person elected or appointed to office,' shall refuse or neglect to take the said oath or affirmation, he shall be considered as having refused to accept the said office.”' ²²¹ The constitution provided, that the first election Under it should be holden on the 5th day of November 1851; and, as it made an election of Comptroller by the electors of the whole State necessary, it was obvious to every one, that their choice could not be made known at the seat of government on the day it took place, and, as a necessary consequence of this, that he could not be commissioned and qualified at that time. A candidate for public favor must be aware of .this, and be assumed to have agreed to accept the office which he solicits, subject to the effect of the delay incident to the ascertainment of the state of the poll and the issue of his commission; and, as a general thing, he suffers little or no diminution of salary from the circumstance, for the like delay attends the qualification of his successor, which, in most cases, prolongs his term until he is superseded by his successor’s qualification. It is urged, however, that the Comptroller elected in 1851, would not be authorised to hold on until his successor qualified; that his term of service would expire on the 5th day of November 1853.

We have already said, we see nothing in the constitution which fixes his term of service at two years from the day of his election, and although it is not anywhere expressly said in the constitution, that he shall continue in his office until his successor has been duly elected, commissioned and qualified, yet, it is obvious to us, that looking to the spirit and policy of the constitution, as manifested in its provisions affecting the other officers of the government, in regard to whom it is provided, they shall continue in office until superseded by their qualified successors, that it was not the design of the framers of the constitution there should be an interregnum in the office of Comptroller, and thereby suspend for the time the whole operations of the Treasury department of the State. Such a state of things might be fraught with the most calamitous results; the dishonor, for instance, of the State’s faith and credit. And, in this view, we are strengthened by the 1st section of the 6th article, which provides, that when the Governor fills a vacancy in the office of Comp- ²²² trailer, his appointee shall “continue until another election by the people and the qualification of the successor.” From this it follows, we are of opinion, that the appellant was not legally the Comptroller of the treasury, nor entitled to the salary affixed to that office until he qualified, according to the requirements of the constitution, which he did, on the 10th day of December 1851. But it is said, that inasmuch as the 1st section of the 6th article of the constitution declares, that “the Comptroller and the Treasurer shall keep their offices at the seat of government, and shall take such oath and enter into such bonds, for the faithful discharge of their duties, as the legislature shall prescribe;” and as the legislature did not prescribe an additional oath to that set out in the constitution, nor fix the form and penalty of the bond until the passage of the act of 1852, ch. 12, there could be no qualification within the meaning of the constitution.

If this be true, then, in the event of a vacancy occurring by death, resignation or otherwise in the office of Treasurer before the passage of the act of 1852, it would have had the effect wholly to suspend the operations of the department; for, according to the argument, no Treasurer appointed by the governor, or by the legislature on joint ballot, could have rightfully entered on the discharge of the duties of the office until after the passage of that act. All he could have done, before he could have assumed to act as Treasurer, -would have been to take the oath and give the bond which the constitution and the then existing laws prescribed. If the 1st section of the 6th article of the constitution inhibited the late Comptroller from entering on his duties until the passage of the act of 1852, ch. 12; it equally interdicted a Treasurer, for it is, in terms, just as applicable to the Treasurer as it is to the Comptroller; and, therefore, if such a construction of the constitution were sanctioned, it would necessarily follow, that a Treasurer appointed prior to the act of 1852, from the time he assumed to act as such until he gave the bond and took the oath prescribed by that act, would have acted file- ²²³ gaily and in defiance of the requirements of the constitution, and as a consequence, all his acts would have been void as being without warrant of law; in other words, the whole operations of the government would have been stopped. The truth is, there is no force in the argument.

In adopting the constitution, the people designed to secure to themselves all the safeguards which that instrument was intended to cast around their liberties and property; and prominent among these was the supervisory and controlling power of a Comptroller of the treasury department. The instrument provided for his election, commission and qualification, and when these took place he was constitutionally inducted into office. The authority given in the 1st section of the 6th article to the legislature, to prescribe an oath and to require a bond other than those fixed by