Ash v. McVey

Briscoe, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court of Cecil County granting a peremptory writ of mandamus by which the appellant was ordered to vacate the office of school commissioner for Cecil County and to surrender it to the appellee. The facts are undisputed and the question is simply as to the title to the office in question. This was created by the Act of 1892, ch. 341, amending the Code, Art. 77, sections 6, 18 and 25. This Act provides that in certain counties of the State, Cecil County being one of them, the Governor shall appoint by and with the advice and consent of the Senate, a board of county school commissioners, consisting of three persons, one of whom shall serve for a term of two years, one for a term of four years and one for a term of six years from ist of August next succeeding their appointment, and until their successors shall qualify * * and hereafter the Governor, by — 127 — and with the advice and consent of the Senate, shall appoint at every regular session of the General Assembly * * one county school commissioner to serve for a term of six years from the first day of August next succeeding their appointment, so that one-third of each board of county school commissioners shall be appointed every two years. By section 25 of the Act it is provided in the case of the death of any county school commissioner or his resignation, or removal from the county, or disqualification from any legal cause during the recess of the General Assembly, the Governor shall have power to appoint a qualified person to fill the vacancy for the unexpired term. In 1892, after the passage of this Act, George Biddle was appointed by Governor Brown a school commissioner for Cecil County for the term of four years from August 1st, 1892, and this appointment was confirmed by the Senate. In December, 1892, Biddle resigned, and in that month, during a recess of the Legislature, George R. Ash, the ap-' pellant, was appointed in the place of Biddle, the term of his office, as expressed in his commission, being “for the balance of the term of four years for which the said George Biddle was appointed or until you shall be duly discharged therefrom.” The appellant qualified and entered upon the discharge of the duties of the office, and at the next ensuing session of the Legislature in January, 1894, his appointment was reported to and confirmed by the Senate. At the session of the Legislature beginning in January, 1896, Governor Lowndes nominated to the Senate S. G. Bye as the successor of Ash, for the term beginning August 1st, 1896, but the Senate adjourned, without having either confirmed or rejected this nomination. And on July 20th, 1896, during the recess of the Legislature, the Governor appointed the appellee, McVey, to succeed Ash, for the term of six years from August 1st, 1896. The matter for determination then, is whether there was at that time such a vacancy in the office of school commissioner as the Governor was authorized to fill under the Act — 128 — of 1892. On the part of the appellee it is contended that the appointment of Ash in 1892 was a recess appointmént within Art. 2, section 11 of the Constitution, and that his commission continued in force only until the end of the session of the Legislature in 1894. The appellant, however, contends that his appointment was not a recess appointment within the constitutional provision; that the power conferred upon the Governor by the Act of 1892, to fill vacancies in the office for the balance of the unexpired term is constitutional, and that he is entitled by virtue of his appointment to hold the office until his successor is appointed by the Governor with the concurrence of the Senate. Was then the appellant’s appointment within the constitutional provision and therefore only valid until the end of the next session of the Legislature, although the Act of 1892 provided that an appointment to fill a vacancy should be for the unexpired term ? If section 11 of Article 2 of the Constitution is considered in the light of other provisions of the Constitution, it cannot be construed as denying the right of the Legislature to confer power upon the Governor to appoint to offices which are of statutory creation, without the consent of the-Senate, or to fill vacancies in such offices without confirmation by the Senate. This power is given by section 10 of the same Article, which provides that 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. In Anderson v. Baker, 23 Md. 627, this Court said: “ When the office is of legislative creation the Legislature can modify, control or abolish it, and within this provision is embraced the right to change the mode of appointment.” And to the same effect is the case of Warfield v. County Commissioners, 28 Md. 76. This power of the Legislature to provide for the appointment or removal of officers by the statutes creating — 129 — the offices is fully considered by this Court in the recent case of Townsend v. Kurtz, 83 Md. 331, and need be only referred to here. The provision of section 11 of Article 2 of the Constitution was intended to control and regulate appointments to offices which the Governor and Senate together are authorized to fill, and does not affect appointments to offices which the Legislature has authorized the Governor to make without the concurrence of the Senate, or to cases where in the event of a vacancy in a statutory office the Legislature has empowered the Governor alone to appoint for the residue of the term. The case of Kroh v. Smoot, 62 Md. 172, relied on by the appellee, related to the office of Tobacco Inspector, which is recognized by the Constitution. In the case of the office, under consideration in that case, the Governor was not authorized to fill the vacancy for the balance of the unexpired term. The purpose of the Act of 1892, as expressed in the sixth section, was to create a term of office of six years for each commissioner and to change only one-third of the board every two years. The original appointments for a six-year term are to be made by the Governor with the concurrence of the Senate, but in the event of a vacancy in one of these terms during a recess of the Senate the provision of section 25 is “ that the Governor shall have power to appoint a qualified person to fill the vacancy for the unexpired term.” The plain meaning of this section of the statute is that a person appointed to fill a vacancy holds for the same term as the person whose place he takes. In the case of the first appointment the statute requires a confirmation by the Senate, while in the latter it is not required, unless the Senate be in session. It is therefore clear, we think, that the appointment of the appellant as school commissioner in December, 1892, was for the unexpired term of his predecessor, and that this appointment was not within section 11 of Article 2 of the Constitution. The action of the Governor in 1894, in send — 130 — ing appellant’s name to the Senate for confirmation, can have no effect upon the term for which the appellant had been appointed. Under the statute all appointments of school commissioners to begin new terms must be made by the concurrent act of the Governor and Senate, and the Governor can appoint alone, only in case of a vacancy occurring during a recess of the Senate. As the Legislature of 1896 adjourned without having taken any action upon the nomination of appellant’s successor made by the Governor during the then session, the question is, whether upon the expiration of the appellant’s term in July 31st, 1896, there was such a vacancy as the Governor was authorized to fill. The Act 1892, ch. 341, in the case of school commissioners appointed and confirmed for an entire term, provides that they shall remain in office “ until their successors shall qualify.” When an appointment is made to fill a vacancy and for the unexpired term, such appointee holds in the same manner as the person whose place he takes held, for the residue of the term and until his successor shall qualify. The rule being that the incumbent of a public office holds over after the expiration of his term until the qualification of his successor. Thomas v. Owens, 4 Md. 221; Robb v. Carter, 65 Md. 321. In the latter case, it was held, unless there is some clearly expressed and positive prohibition which by its terms operates as an ouster the person filling the office should continue to discharge those duties until a successor is qualified, no matter whether the office is created by the Constitution, by an Act of the General Assembly or by a municipal ordinance. And in Lynn v. Mayor, &c., of Cumberland, 77 Md. 454, it was said : “ The Maryland cases * * uniformly hold that even when an officer has been appointed for a definite term, he-is entitled to hold after the expiration thereof until his successor is elected and qualified — the superadded period being in fact a part of his rightful term of office.” It is manifest, therefore, that although the appellant’s term — 131 — of office expired on July 31st, 1896, he was still an officer de jure and de facto, until the qualification of a duly appointed successor. If, then, on August 1st, 1896, he was in the lawful discharge of the duties of the office, there was no vacancy in the office, and there being no vacancy, there was no power in the Governor to appoint another commissioner. Smoot v. Somerville, 59 Md. 84. (Decided January 7th, 1897). The Act of the Governor in appointing the appellee could' not ipso facto, create a vacancy in this office. “ The vacancy must actually exist before the power of appointment can be exercised; for it is only the existence of the vacancy that can call into activity the power to appoint.” Smoot v. Somerville, supra. We are, therefore, of opinion, that the appellant was lawfully appointed school commissioner for a term of office ending July 31st, 1896, and until the qualification of his successor; that, except in the event of a vacancy his successor could only be appointed by the Governor with the concurrence of the Senate ; that as no successor has been appointed and there was no vacancy, the appellant continues to hold over under his original appointment, and there was no vacancy in the office which the Governor was authorized to fill. The order of the Court will be reversed and the petition for 77ianda7mis dismissed. Order reversed and mandamus dis-77iissed with costs.