Magruder v. Tuck

Bowie, C. J., delivered the opinion of this Court: In the preceding case of the Appellant vs. Thomas Swarm,, Governor of Maryland, all the points made in the present-case have been considered" and" decided with the exception of the'objecfion-peculiar to this, that the petitioner, not having received his commission from the Governor, could not be legally qualified by the clerk of Calvert county, and until so commissioned and" qualified was" not entitled to the possession of the office. It will be seen from the decision in the case vs. the Governor, that the Constitution requires a commission to be issued to the person elected to the office of judge. No clerk has authority to qualify a person before he has been- commissioned. , y y The-10th sec., Art. 08) entitled “official oaths,” indicates that the commission is a prerequisite where the law or Constitution requires one to be issued: “ Any person, whether elected' or appointed' to office, who shall decline or neglect to take and'subscribe the oaths prescribed by the Constitution or by law or ordinance, for the period of thirty days from the day when the commission of such officer has been received at the office of the respectivo clerks, or in those cases in which no commission is sent to the clerks, or within thirty days after receiving his commission or notice of his appoint [219] meut, shall be deemed to have refused acceptance of said office. In the absence of sucli a commission, the clerk Gould have no sufficient evidence of an election or appointment, and consequently no right to administer the oaths of office. Eor this reason the petitioner must fail in his application for a mandamus in this case, and the order of the Court below will be affirmed. (Decided June 28th, 1866.) Order affirmed.