Marshall v. Harwood

5 Md. 423 | Md. | 1853

Mason, J.,

delivered the opinion of this court.

There is but one clause in the constitution relating to the office of librarian, and that is the 7th section of the 7th article, which provides, that “the State librarian shall be elected by the joint vote of the two branches of the legislature, for two years, and until his successor shall be elected and qualified.”

The import of this language, taken in its usual sense, is free from doubt. Unless then it be repugnant to sound sense and reason, and to the manifest intention of the framers of the constitution, as gathered from other analogous portions of the instrument, we must give it its natural and ordinary interpretation. We can discover no such repugnancy. First, then, the librarian is to be elected by the joint vote of the two houses of the legislature. Mr. Harwood was so elected. In the next place the office is to be held for two years. Mr. Harwood was elected on the 23rd April 1853. We think he is elected for two years from that date. There is no intimation in express terms in the constitution, nor can we infer by analogy from any of its other provisions, that it was the duty of the legislature to regard the term of Mr. Bateman, thp former incumbent, as still subsisting at the time of the election of Mr. Harwood. Nor can we discover any sound reason why it should lie so regarded. Neither the public interest, nor any wise design of the constitution, that we can discover, would be promoted by coupling Mr. Harwood’s election with the previous term of Mr. Bateman. The only reason that can be assigned why the appellee’s election should not be regarded as the commencement of a new term, is; that it would expire at a time when the legislature would not be in session, and that it was the design of the constitution that the terms of this office should only expire during the sessions of the legislature. We have already said that we can discover no authority for this position, either in the enactments of the constitution, or in sound sense and' good policy. Suppose the first election under the constitution had taken place in April" 1852, instead of January, this being a session of the legislature which was exempted from the constitutional limit, and that there had been no resignation, would the election have been less valid because of the fact that the two years would have expired in. April 1854, during the recess of the legislature? Clearly not. It would then follow that this term would have ended in April 1854, during the recess, and that the legislature next preceding that time would either have had to elect in anticipation of the vacancy, or have curtailed the term by declaring the office vacant at the moment of the new election; or if there was no power in the legislature to do either, then the anomalous result would follow that the first incumbent would hold the office, (not from any omission or neglect to elect on the part of the legislature, but from a legal or constitutional inability to do so,) for Jour years, when the constitution .expressly limits the term to two. In the case we have put, we are clear the legislature would have no power to curtail the term, by making it end during the session at wdiich the election took place, nor would the incumbent have a right to hold over, merely because the election took place before the term had actually expired. It would clearly have been competent for the legislature in such a case to hare anticipated the vacancy and to have elected in advance.

Regarding Mr. Harwood’s term of two years to have commenced with his election and qualification, we think it should be governed by the same rules. The qualification or addition which the constitution annexes to the term, that the incumbent shall hold the office, ia addition to his two years, until his successor shall be elected and qualified,” must relate to an omission or neglect in the legislature to make the election, or to the unwillingness or inability of the new appointee to qualify. We repeat, that ia our opinion Mr. Harwood was elected for two years from the 23rd of April 1853, or until a successor is duly elected and qualified. The point as to the legality of the election of Mr. Marshall is distinctly raised by the record, and we think proper to decide it; by doing so all future confusion and doubt will be avoided. We are of ©pinion that the legislature had the right to elect in anticipation of the expiration of the two years for which Mr. Harwood was elected, and that at the expiration of that time Mr. Marshall will be entitled to be qualified and inducted into office.

Order affirmed, with costs in hath courts.