Townsend v. Kurtz

Boyd, J., delivered the opinion of the Court. ■ This case involves the title to the office of Insurance Commissioner of the State of Maryland, and was brought to this Court by an appeal from an order of the Superior Court of Baltimore City directing the issue of a peremptory writ of mandamus, commanding the appellant, the defendant below, to deliver to the appellee all books, papers, etc., belonging to or in anywise appertaining to the said office, ánd to surrender the office to him. A brief statement of the facts will ■suggest the points involved in the controversy. On December 30, 1892, I. Freeman Rasin was appointed Insurance Commissioner for the the term of four years from the date of his appointment, by the Board of Public Works, which was then composed of his Excellency, Frank Brown, Governor; Hon. Marion DeK.

Smith, Comptroller, and Hon. Spencer C. Jones, Treasurer. On November 30, 1895, Mr. Rasin tendered his resignation, which was accepted on December 11, 1895, and on the 18th day of the latter month the board unanimously elected the appellant Insurance Commissioner. On the same day Governor Brown issued a commission to him to “ hold and execute said office justly, honestly, and faithfully for the term of four years from the date of this commission, or until you shall be duly discharged therefrom.” The minutes of the proceedings do not show the time for which he was elected, but section 121 of Article 23 of the Code of Public General Laws provides that the chief officer of the Insurance Department “ shall be appointed by the Governor, Treasurer and Comptroller for the ³⁴¹ term of four years, and shall be known as the Insurance Commissioner * * * and shall hold his office during the term for which he is appointed, or until his successor is appointed and qualified, unless sooner removed by the Governor, Treasurer and Comptroller.” Under that appointment the appellant regularly qualified by giving the bond prescribed by the statute and taking the oath of office, and entered upon the duties of his office.

On March the 12th, 1896, the Board of Public Works, which was then composed of his Excellency, Lloyd Lowndes, Governor ; ITon. Robert P. Graham, Comptroller, and Hon. Thomas Shryock, Treasurer, adopted a resolution that “ Thomas P. Townsend, Insurance Commissioner, be removed from office to take effect upon the appointment and qualification of his successor,” and on the next day unanimously elected the appellee for the term of four years from the date of his appointment. On the 17th day of that month Governor Lowndes issued a commission to the appellee, who filed his bond, took the oath of office as required by law, and subsequently made a demand on the appellant for the transfer of his office, etc., which was refused.

No charges were filed against the appellant for misconduct, incompetency or other cause, and he was removed without prior notice or hearing. The case was tried before the Court without a jury and the above facts were admitted. The appellee offered a prayer, which was granted, and the appellant one which was rejected, and the ruling of the Court on the prayers presents the question before us for review. The right of the appellee to have the writ of mandamus issue is by his prayer made to depend upon the finding by the Court that the appellant was removed from the office by the Governor, Comptroller and Treasurer, whilst that of the appellant asked for a verdict in liis favor because the attempted removal was not for cause and was without any previous notice or hearing.

It is contended on the part of the appellee that the tenure of this office is not for a fixed term, but its duration is un ³⁴² certain and indefinite, and therefore the incumbent is removable at the will of the appointing power. It is well settled that where there is no limit fixed to the term office and the appointee holds merely at the will of the appointing power, he may be removed without notice and without charges being preferred or reasons assigned. But it would seem clear that under the very terms of the statute the tenure of this office is not for such an indefinite term as that. The statute says he shall be appointed “ for the term of four years,” and that he “ shall hold his office during the term for which he is appointed, or until his successor is appointed and qualified, unless sooner removed by the Governor, Treasurer, and Comptroller.” We will have occasion to discuss later on the effect of this power of removal, but it cannot properly be said that the appointment is not originally for a definite term, although subject to removal by the action of all of the officers above named.

It is true he may not hold the office four years by reason of death, resignation, or his removal, if done in the way authorized by law, but that is the time designated-by the statute for which he shall hold it, subject to these contingencies. It is therefore distinguished from that class of cases in which the appointing power is authorized to appoint officers without naming some fixed term. Most, if not all, officers provided for by the Constitution, may be removed under the express authority given by that instrument, but-the fact that they may be removed, does not convert their offices from those for definite terms into those held at the will of the persons making the appointment. The Constitution, for example, in section 13 of Art. 2, says that the term of all civil officers appointed by the Governor and Senate, except in cases otherwise provided for, shall “ continue for two years (unless removed from office) until their successors respectively qualify according to law,” and section 15 of the same Article authorizes the Governor to “ remove for incompetency or misconduct all civil officers who received the appoinment from the executive for a term of years.”- It has never been suggested, so far as ³⁴³ we are aware, that such offices were not for the fixed term of at least two years, notwithstanding the fact the incumbents might be removed within that time.

Nor can we receive any aid in our consideration of this point from the language “ or until his successor is appointed and qualified.” “Or” in that connection is frequently if not generally equivalent to “ and,” as in the case of Lynn et al. v. Mayor, etc., of Cumberland, 77 Md. 449 , where by an ordinance a tax collector was required to be elected annually and it was provided that he should “ hold his office for one year, or until his successor was duly elected and qualified.” This Court held that his bond given after such an election was responsible for the second year, although the liability of securities was involved, because his successor had not qualified. But the Legislature having expressly said that-the Insurance Commissioner should be appointed for the term of four years, and knowing that his term might be shortened by resignation or in some other legal way, declared that he should hold the office during the term for which he is appointed, or until his successor is appointed and qualified. The duties of the Commissioner are important, and the Legislature wisely provided against a vacancy, and that is evidently all that provision was intended for. If there could be any doubt about this construction of the statute, the case of Miles v. Stevenson, 80 Md. 358 , would seem to be conclusive of it.

The Act of 1890, chapter 113, which was then under consideration, expressly provided that the road supervisor should hold his office “ for two years, or until his successor is duly appointed and qualified,” and should be subject to removal for incompetency, wilful neglect of duty, or misconduct in office. But this Court held that the incumbent, Stevenson, could only be removed for one of the causes mentioned in the statute, whilst if the construction of the appellee be correct, that the language “or until his successor is appointed and qualified” terminated the term of office of Townsend when Kurtz was appointed and ³⁴⁴ qualified, the same would have applied to that case and Miles’ appointment would have been valid. But there can be no question that the Governor, Comptroller and Treasurer have the power to remove this officer under some circumstances, and hence it becomes important to determine whether their action in removing Mr. Townsend without assigning any cause or giving him notice or hearing was lawful.' It must be conceded that if the appellant could only have been removed for cause he was entitled to notice and an opportunity to defend himself, for, unless the statute authorize it, no one appointed for a definite term can be removed for cause without having an opportunity to be .heard in his defence. The great weight of authority is to that effect, and Miles v. Stevenson, supra, conclusively settles it as the law of this State.

But the real question is whether the statute under consideration is to be so construed as to limit the power of removal to one for cause. The statute makes no express declaration on the subject, and we must be guided by the meaning of the language used, by the provisions in the Constitution and other statutes in reference to the removal of officers, by the history of the law in establishing this office and by the reasoning of such authorities as we find applicable to the case. It is contended on the part of the appellant that it is the policy of the State to continue in office for the term the incumbent who has been elected or appointed for a definite term, provided he competently and faithfully performs the duties of the office, unless there is something clearly to manifest a contrary intention in the law under which he is elected or appointed. It is true that both our Constitution and our statute laws do designate causes for which most of our officers can be removed, but it is also true that the Legislature has the undoubted right to authorize the appointing power to remove its appointees without assigning any cause when they are appointed under statutory laws.

Most of the officers referred to in the Constitution are either elected by the people or appointed by ³⁴⁵ the Governor, by and with the consent of' the Senate, and are not, as in this case, subject to removal by the action of those who have the exclusive power to appoint. The causes for removal usually given in the Constitution are incompetency, wilful neglect of duty and misconduct in office. But does the fact that most of the officers provided for by the Constitution and the statutes can only be removed for cause aid the appellant in his contention ? When we find that the framers of the Constitution and the Legislatures have generally named the causes for which officers can be removed before the expiration of their terms, and that in this case no causes for removal are given, does it follow by a necessary or reasonable implication that the Legislature nevertheless intended to limit the power of removal to that for cause ?

Is not the contrary inference rather to be drawn —that, inasmuch as the practice has been to name the causes for which officers can be removed, when they are omitted, the Legislature did not intend to limit the power of removal to any particular cause or causes, but intended to leave it to the discretion of the persons vested with the power of removal ? The Legislature authorized these three officers to make the appointment and the removal could only be accomplished by their unanimous consent. The Governor is elected by the people for four years, the Comptroller for two years and the Treasurer by the Legislature every two years, and the lawmakers who gave them this power to appoint this officer might well assume that they would only exercise the power of removal given them when the interests of the public demanded it. After the appointment was made they might see that the appointee was not exactly the right man for this important position, although it would be difficult to establish charges of incompetency or misconduct in office.

The law requires the Insurance Commissioner to report annually to the Governor his official acts on or before the 1st day of June, and to report to the Comptroller annually on the 1st day of December, the fees received and the ex ³⁴⁶ penses and disbursements, and to pay into the treasury all excess of receipts over disbursements. So while it is a distinct department, it is kept in close contact with those who appoint its chief officer. But the history of the organization of the Insurance Department throws some light on this question. By the Act of 1872, chapter 388, the Comptroller was authorized and directed “ to assign a clerk in charge of said