Dyer v. Bayne

| Md. | Jun 18, 1880

Alvey, J.,

delivered the opinion of the Court.

This is an application for the writ of mandamus, and the question for decision arises upon demurrer to the answer of the defendant.

The defendant was duly appointed to and held the office of Tobacco Inspector, in the State Tobacco Warehouse Ho. 1, in the City of Baltimore, from the first Monday of March, 1878; and on the 24th day of February last, and within fifty days from the commencement of the last session of the Legislature, the Governor nominated, and sent to the Senate for the advice and consent of that body, the name of the plaintiff, as the successor of the defendant in office, as required by the Constitution, Art. 2, sec. 13. The Senate did not act upon this nomination until the 5th of April, when it was confirmed. The Governor issued the commission to the plaintiff on the 12th of April, 1880, whereby he is declared to he appointed and commissioned to the office of Inspector in Warehouse No. 1 for the term of two years, from the first Monday of March, 1880. The commission was duly accepted, and the plaintiff thereupon gave bond, and took the oath of office, as required by law; and, on the 17th of April, 1880, made formal demand of the defendant for the surrender of the Tobacco Warehouse No. 1, together with all the books, &c., but which demand was refused by the defendant, who is still in possession, and hence the application for the writ of mandamus by the plaintiff.

The defendant by his answer, and also in argument, takes the position that inasmuch as the Senate did not act upon the Governor’s nomination of the plaintiff until after the first Monday of March, 1880, the term of office for which the plaintiff has been appointed does not, by the terms of the Constitution, commence until the first Monday of March, 1881, that being the first Monday of March next ensuing the appointment, according to the construction contended for by the defendant. And as he is entitled to hold over until his successor is duly qualified, and can rightfully enter into the possession of the office, he contends that he is entitled to hold over until the first Monday of March, 1881; and thus hold for three years instead of two. And whether this contention be well founded or not is the question for decision, and that depends upon the proper construction of the 13th sec. of the 2nd Art. of the Constitution. That section is as follows:

“All civil officers appointed by the Governor and Senate, shall be nominated to the Senate within fifty 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; hut the term of office of the Inspectors of Tobacco shall commence on the first Monday of March next ensuing their appointment.”

It is not difficult to discover the main and leading purposes of this section. They were two; and the first was to limit a time within which the Governor should make his nominations to the Senate; and the second was to declare and make uniform the term of office for the officers to be nominated; and the particular day for the commencement of the term was but incidental to this last mentioned primary purpose. The term was declared to he two years, and the appointments áre required to be made biennially, during the regular sessions of each Legislature. It was manifestly the purpose of the framers of the Constitution that the term of office should commence and terminate with reference to the end of each regular biennial session of the Legislature, and that for obvious reasons. It was certainly never contemplated that the term of these offices, or any of them, should begin or terminate,' as the defendant contends it may, at a time in the intervening year between the regular sessions of the Legislature. Indeed, there is no clause or provision in the Constitution that gives the slightest countenance to the idea that the term could so commence and terminate. On the contrary, it would contravene the whole scheme and spirit of the instrument. The nomination and confirmation of the plaintiff, therefore, was intended for the term of office commencing with the first Monday of March, 1880. That intention, however, must be disregarded, according to the contention of the defendant, and we are to be confined to the terms of the section of the Constitution which declare that the term of office of the -Tobacco Inspectors “shall commence on the first Monday of March next ensuing the appointment,” regardless of the consequences that such a construction may produce. But are we compelled to adopt this strong proposition, in the face of the manifest general intention of the framers of the instrument, and regardless of the discordant results that would he produced in its general operation ? To adopt the construction contended for by the defendant, several anomalous results would he produced, which never could have been contemplated by the authors of the Constitution.

In the first place, that construction would secure to the defendant the enjoyment of a term of office for three years, when the term for which he was appointed is declared by the Constitution in express terms to he only for two; and that holding is claimed to he, not simply, in the terms of the Constitution, until his successor shall he duly appointed, and qualifies, but for a definite term, that is to say, until the first Monday of March, 1881; notwithstanding his successor has been duly appointed and qualified, and has demanded the possession of the office.

In the second place, if the present incumbent were to resign, or die, or become disqualified for any cause, before the first Monday of March, 1881, the defendant’s position, to be consistent, compels him to contend that, in such event, it would become necessary for the Governor to make a new appointment to fill the vacancy, until the first Monday of March, 1881; notwithstanding the plaintiff had been long previously duly appointed, commissioned, and qualified for the office. And yet, if we look to sec. 11th of Art 2nd of the Constitution, which authorizes the Governor to fill vacancies occurring during the recess of the Senate, we find that the commission of the party thus appointed is to continue in force until the end of the next session of the Legislature, or until some other person is duly appointed, whichever shall first occur; “ and the nomination of the person thus appointed during the recess, or, of some other person in his place, shall he made to the Senate within thirty days after the next meeting of the Legislature.” If, therefore, the defendant were to die or resign during the term for which he now claims to hold, and the Governor were to appoint to fill a vacancy, as the defendant contends he would have to do, there would be a palpable conflict, upon the defendant’s construction, between the incumbent, appointed to fill the vacancy, and the plaintiff, upon the arrival of the first Monday of March, 1881, when, as it is contended, the term of office of the latter would begin. The question then would be, which provision of the Constitution should be modified by construction or made to yield its literal force.

Then, again, if the term of office for which the plaintiff has been appointed should not commence until the first Monday of March, 1881, either one of two things must result; either the term must be reduced to one year, notwithstanding the Constitution declares that it shall be for two, or the two years term must be allowed to terminate on the first Monday of March, 1883,—a year in which there will be no regular session of the Legislature. In this latter alternative, the Governor, with the concurrence of. the Senate, would be required to appoint a successor to the office a year in advance of the expiration of the current term, and so on repeatedly; and to do this, there is no warrant whatever to be found in ..any part of the Constitution.

A construction, then, that leads to such anomalous consequences cannot be sound, nor can it be justified, upon any reasonable principle of construction, though the letter of a particular provision of the Constitution would seem to require it. We must loolc to the Constitution as a whole, and adopt such construction of its parts as- will maintain in force and harmonious operation the main and leading provisions of the instrument. And looking therefore at the principal objects of the 13th section of the 2nd Article of the Constitution, and seeing the necessity for conforming the construction of it to what is imperatively required for the harmonious and consistent operation of the instrument, it would seem to he clear that the words, “ shall commence on the first Monday of March next ensuing their appointment,” must he restrained, and their literal import to some extent qualified. In some particular cases no other mode of construction would relieve of embarrassment, and avoid inconsistent and discordant results. Suppose, for instance, that the Senate, instead of confirming had rejected the plaintiff after the first Monday in March ; or that he had at once declined the office after that time; and the Governor had thereupon made a new nomination to the Senate, which had been duly confirmed ; could it he reasonably, contended that, in such cases, the new appointee would not be entitled to the office at once, upon due qualification, hut that he would have to wait a year before he could he installed, owing to an ordinary circumstance that may attend any nomination ; and this, notwithstanding the existing incumbent had held his full term, and was only allowed to hold over until his successor was duly appointed and qualified ? Such contention, we think, could in reason find no support, and yet that case in no manner differs from what is contended for by the defendant. His contention is entirely founded upon the idea that the appointment did not precede the first Monday of March, occurring during the period assigned for the session of the Legislature; and that would he the case equally in the instances supposed as in the case now before us.

But, while we regard the view of the subject already stated as a full answer to the contention of the defendant, there is another view quite conclusive of the case.

The Governor made the nomination of the plaintiff within the fifty days, and before the first Monday of March, 1880. The Senate was under no restriction as to time within which-it should act upon that nomination; and having confirmed the nomination during the' regular session, the appointment was complete from the time of such confirmation. United States vs. Bradley, 10 Pet., 364. The Governor had no discretionary power over the appointment after confirmation, nor had he power to withhold the commission; for the issuing of the commission was a mere ministerial act. The efficient and only discretionary act of the Governor in making the appointment, was in making the nomination; and the Senate having no other power over the nomination than to concur or non-concur in it, the act of the Governor became complete and effective with the concurrence of the Senate, and it related hack to the time of the nomination. The act of the Senate, and the subsequent ministerial act of the Governor in issuing the commission, both related to the principal act of the Governor in making the nomination; the commission being evidence only of the appointment. And the appointment being thus allowed to speak as from the time of the principal act done in making it, all difficulty upon the terms of the Constitution is at once removed. There can he no good reason why the principle of relation should not he applied in a case like the present, as it is constantly applied in many others, for the advancement of justice, and to give full and complete effect to legal proceedings. We think it shquld he so applied.

(Decided 18th June, 1880.)

It therefore follows that the order of the Court below, awarding the writ of mandamus, must he affirmed. And in the several cases, Nos. 19, 20, and 21, being the cases of Hilton vs. Somerville, Owens vs. Hawkins, and Carpenter vs. Hayden, as they stand upon the docket of this Court, the facts in those cases being in all respects the same as in the case just considered, the several orders therein, awarding the writ of mandamus, must likewise he affirmed.

Orders affirmed.