Watkins v. Watkins

Le Grand, C. J., delivered the opinion of the court. This cause comes before us on appeal from an order passed by the circuit court of Anne Arundel county, refusing to direct the issue of a writ of mandamus, requiring the appellee to surrender and deliver into the possession of the appellant all the books, papers, records and archives, and all other matters and things appertaining to the office of the Adjutant General of the Maryland Militia. The appellee was Adjutant General, duly commissioned and qualified under the late constitution of the State, and, as such, Continued to' act up to the 21st day of July 1852. During the session of the senate, the executive nominated the appellant’ for the office of Adjutant General, but the senate refused either to confirm or reject the nominee, on the ground, that the appellee, as the then Adjutant General, held his office by the same tenure as before the adoption of the present constitution, until his successor should be appointed and duly qualified; and that this tenure being for life, there was nothing in the constitution' which expressly or by implication' fixed the time for the appointment of his successor, and that it was not designed to submit the period thereof to the discretion of the executive, and could only therefore, as alleged by the senate, be provided for by the legislature.

After the adjournment of the senate, the governor issued a commission to the appellant. The appellee refusing to surrender the papers, &c., belonging to the office into his custody, he filed his petition, asking that he be required to show' cause why a mandamus should not issue commanding him to- ³⁵⁴ make the delivery. On the hearing of the matter, the circuit court refused to direct the issue of the writ. On this state of facts, this court is called upon to determine upon the correctness of the action of the court below.

Under the old constitution the Adjutant General held his office during good behavior .■ By the second section of the ninth article of the present constitution it is provided, “the Adjutant General shall be appointed by the governor, by and with the advice and consent of the senate;” and that “he shall hold his office for the term of six years, and receive the same salary as heretofore, until changed by the legislature.” The eleventh section of the second article of the same instrument declares, the governor “shall nominate, and by and with the advice and consent of the senate, appoint all civil and military officers of the State, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office..” And by the twelfth section of the same article it is made the duty of the governor, in case of any vacancy during the- recess of the senate,, in any office w-hich he has power to fill, to appoint some suitable person to said office whose commission shall continue in force to the end of the next session of the legislature, or till some other person is-appointed to the same office, which ever shall first occur, &e. Under these clauses of the constitution it is contended on behalf of the appellant, that he is rightfully in office, and being so, entitled to all matters pertaining to it- In this view we’ do not concur. The eighth section of the tenth- article of the constitution declares, that “the- governor and all officers, civil and military, now holding commissions under this State, shall continue to hold and exercise their offices,