Smoot v. Somerville

Grason, J., delivered the opinion of the Court. The determination of the questions, presented on this appeal, depends upon the construction of the eleventh, thirteenth and fourteenth sections of the second Article of the Constitution of this State. The thirteenth section provides that “ All civil officers appointed by the Governor and Senate, shall he nominated to the Senate within fifty — 87 — days from the commencement of each regular session of the Legislature; and their term of office, except in cases otherwise provided for in this Constitution, shall commence on the first Monday of May next ensuing their appointment, and continue for two years (unless removed from office,) and until their successors, respectively, qualify according to law; but the term of office of the Inspectors of Tobacco shall commence on the first Monday of March next ensuing their appointment.” The eleventh section provides that, “In case of any vacancy, during the recess of the Senate, in any office which the Governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue in force until the end of the next session of the Legislature, or until some other person is appointed to the same office, whichever shall first occur; and the nomination of the person, thus appointed during the recess, or some other person in his place, shall be made to the Senate within thirty days after the next meeting of the Legislature.” By the fourteenth section it is provided that “If a vacancy shall occur, during the session of the Senate, in any office which the Governor and Senate have the power to fill, the Governor shall nominate to the Senate, before its final adjournment, a proper person to fill said vacancy, unless such vacancy occurs within ten days before said final adjournment.” The thirteenth section, above quoted, is exactly similar to the fourteenth section of the Constitution of 1851, and to the sixteenth section of the Constitution of 1864, except with respect to the time at which the term of office of Inspectors of Tobacco is to commence. From the language employed in these sections it is manifest that the power of appointment to all civil offices was intended to be, and was, confided, not to the Governor alone, but to the Governor and Senate, and that the Gov — 88 — ernor has no power to appoint to office, without the advice and consent of the Senate, except to fill vacancies.in offices, which may occur during the recess of the Senate, or, as provided by the fourteenth section, within ten days before its final adjournment. It has been contended that, inasmuch as the term of office of tobacco inspectors commences on the first Monday in March and is to continue two years, a vacancy occurs immediately upon the expiration of the term of two years; and such would he the case were it not for the further provision of the thirteenth section by which all officers are to continue in office until their successors, respectively, qualify according to law.” It is true that the Governor may appoint, by and with the advice and consent "of the Senate, at a regular session of the Legislature, a successor to an incumbent in office, and the successor, so appointed, would be entitled to take possession, and enter upon the discharge of the duties of the office, immediately upon the expiration of the term of two years of his predecessor, and in such case there would he no vacancy. But even if no appointment he made by the Governor and Senate, the thirteenth section still guards against a vacancy, by providing that the incumbent shall remain in office until his successor “shall qualify according to law,” which cannot be, until one shall have been appointed in accordance with the requirements of the thirteenth section; that is, by the appointment of the Governor, by and with the advice and consent of the Senate. If a successor he not so appointed, the incumbent will continue in office, not as a mere defacto officer, hut as an officer de jure by the express language of the thirteenth section. These views have been sanctioned by this Court in the cases of Watkins vs. Watkins, 2 Md., 341, and Marshall vs. Harwood, 5 Md., 433. The same construction has been given to similar provisions in the Constitutions and laws of other States of the Union. See State vs. House, 25 Ohio, 588; Tappan vs. Gray, 9 Paige, 501; Common — 89 — wealth vs. Hanley, 9 Pa., 513; Brady vs. Howe, 50 Miss., 607; People vs. Bissell, 49 Cal., 407; State vs. Lusk, 18 Mo., 333; Walker, et al. vs. Ferrill, 58 Georgia, 516, 517, 518. In the convention of 1851, while a section, from which section thirteen of the present Constitution seems to have been copied, was the subject of discussion, the chairman of the committee on the Executive Department stated that the provision of that section, by which incumbents were to continue in office until their successors should be qualified according to law, was inserted for the purpose of preventing detriment to the public interests from interregnums, whether arising from the refractory temper of the Governor, or the Senate, or both. 1 vol. Debates, 468. The convention which framed the present Constitution seems to have been unwilling to confer the power of appointment to office upon the Governor alone, excepting cases of absolute necessity, by confining such power to filling vacancies, which might occur either during the recess of the Senate, or within ten days before its final adjournment, and even in such cases, he is required to nominate to the Senate, within thirty days after the meeting of the next Legislature, the person so appointed, or some other person, for the office; and the commission of the person appointed to fill the vacancy, is limited to the end of the next session of the Legislature after said appointment, or to the time of the appointment and qualification of the person appointed by the Governor and confirmed by the Senate, whichever may first occur; so that in no event can the person appointed to fill a vacancy, hold his commission and perform the duties for any longer time than the session of the Legislature, which meets next after his appointment, while it is evidently the intention of the Constitution that he shall remain in office as short a time as possible, consistently with the convenience of the Governor and Senate, by requiring his nomination or that of some other person to be made to the Senate in thirty days after the meeting of the Legislature. — 90 — The power and authority of the Governor alone to make appointments, being limited to the filling of vacancies occuring during the recess of the Senate, or within ten days before the final adjournment of the Legislature, it becomes necessary to look at the facts of the case now before us, for the purpose of ascertaining whether the appointment of the appellant to the office of Inspector of Tobacco was a constitutional exercise of power by the Governor. The answer of the appellee to the petition filed against him having been demurred to, all the material facts stated in it are to he considered as admitted to be true. Looking at the answer then, we find that, in January, 1880, the appellee was nominated by the Governor to the office of Inspector of Tobacco at warehouse No. 2. and was confirmed by the Senate at a regular session of the Legislature, and received his commission, gave bond as required by law, which was filed for record in the clerk's office of the Superior Court of Baltimore City, and that, on the 8th day of April, 1880, he took and subscribed the oath required by the Constitution and laws of this State as such Inspector, and took possession of said office and entered upon the discharge of its duties, and has ever since so continued, and now is in possession of said office and discharging its duties. That in February, 1882, the Governor nominated to the Senate as Inspector of Tobacco at warehouse No. 2, G. W. Jones, and that on the 22nd day of March, 1882, said nomination was rejected by the Senate, and that, on the third day of April, 1882, which was the day on which the Legislature adjourned sine die, the Governor nominated to the said office, Andrew J. Smoot, the appellant, and that the Senate finally adjourned that day without having taken any action on said nomination. That, after the final adjournment of the Legislature, the Governor, while the appellee was still in possession of said office and discharging the duties thereof, did ‘on the — 91 — tenth day of April, appoint the appellant to said office and did issue a commission therefor to him. These facts show that the Governor nominated Mr. Jones to the Senate, in conformity to the 13th section of Article 2, of the Constitution, as Inspector of tobacco at Warehouse No. 2, as successor to the appellee, whose term would expire on the first Monday of March following. But as that nomination was rejected by the Senate, no appointment was made, and the appellee still held the office, and was lawfully in discharge of its duties under that clause of the thirteenth section of the Constitution which provides that incumbents of the offices shull continue in office “until their successors, respectively, qualify according to law.” On the third day of April ensuing, the Governor again nominated to the Senate for Inspector of Tobacco at said Warehouse the appellant; but the Senate, whether on account of the pressure of legislative business, usually existing near the close of the session, or whether from other causes, we are not informed, finally adjourned, without having either rejected or confirmed said nomination, and thus again there was a failure of an appointment of a successor to the appellee, who continued to hold the office and discharge its duties under the clause of the thirteenth section of the Constitution, to which we have before referred. No vacancy, as we have said, existed from the first Monday in March, on which day the Constitution provides that the term of office of Inspectors of Tobacco shall commence, down to the time of adjournment of the Legislature, nor did its final adjournment without any action by the Senate, on the nomination of the appellant cause a vacancy, which had not occurred before. There was no vacancy in the office, which the Governor was authorized by the Constitution to fill during the recess of the Senate, and, consequently the appointment of the appellant is void and of no effect, and the appellee is entitled to hold the office until his successor shall have been appointed and qualified — 92 — in accordance with, the directions of the thirteenth section of the second Article of the Constitution. (Decided 13th July, 1882.) It becomes unnecessary, in the view we have taken of this case, to notice the commission, which was issued to the appellant, further than to say, that, even if the appointment of the appellant had been constitutionally made to fill a vacancy, its terms as to mode of appointment and continuance in office of the appellant, are not in accordance with the provisions of the Constitution relating to, and governing, appointments to fill vacancies occurring during the recess of the Senate. The order appealed from will be affirmed with costs. Order affirmed. Stone, J., dissented.