Watkins v. Watkins

| Md. | Dec 15, 1852

Le Grand, C. J.,

delivered the opinion of the court.

This cause comes before us on appeal from an order passed by the circuit court of Anne Arundel county, refusing to direct the issue of a writ of mandamus, requiring the appellee to surrender and deliver into the possession of the appellant all the books, papers, records and archives, and all other matters and things appertaining to the office of the Adjutant General of the Maryland Militia.

The appellee was Adjutant General, duly commissioned and qualified under the late constitution of the State, and, as such, Continued to' act up to the 21st day of July 1852. During the session of the senate, the executive nominated the appellant’ for the office of Adjutant General, but the senate refused either to confirm or reject the nominee, on the ground, that the appellee, as the then Adjutant General, held his office by the same tenure as before the adoption of the present constitution, until his successor should be appointed and duly qualified; and that this tenure being for life, there was nothing in the constitution' which expressly or by implication' fixed the time for the appointment of his successor, and that it was not designed to submit the period thereof to the discretion of the executive, and could only therefore, as alleged by the senate, be provided for by the legislature.

After the adjournment of the senate, the governor issued a commission to the appellant. The appellee refusing to surrender the papers, &c., belonging to the office into his custody, he filed his petition, asking that he be required to show' cause why a mandamus should not issue commanding him to-make the delivery. On the hearing of the matter, the circuit court refused to direct the issue of the writ.

On this state of facts, this court is called upon to determine upon the correctness of the action of the court below.

Under the old constitution the Adjutant General held his office during good behavior .■

By the second section of the ninth article of the present constitution it is provided, “the Adjutant General shall be appointed by the governor, by and with the advice and consent of the senate;” and that “he shall hold his office for the term of six years, and receive the same salary as heretofore, until changed by the legislature.”

The eleventh section of the second article of the same instrument declares, 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..” And by the twelfth section of the same article it is made the duty of the governor, in case of any vacancy during the- recess of the senate,, in any office w-hich he has power to fill, to appoint some suitable person to said office whose commission shall continue in force to the end of the next session of the legislature, or till some other person is-appointed to the same office, which ever shall first occur, &e.

Under these clauses of the constitution it is contended on behalf of the appellant, that he is rightfully in office, and being so, entitled to all matters pertaining to it-

In this view we’ do not concur. The eighth section of the tenth- article of the constitution declares, that “the- governor and all officers, civil and military, now holding commissions under this State, shall continue to hold and exercise their offices, according to their present tenure, until they shall be superseded, pursuant to the provisions of this constitution, and until their successors be duly qualified.”

The appellee, at the adoption of the constitution, held a military commission- under this State,, and by force of the sec-i'icm last quoted lie was to continue to hold it until he should be superseded, pursuant to the provisions of the constitution, and his successor should be duly qualified.

The question then is, how could the appellee be superseded pursuant to the provisions of the constitution ?

This question is answered by the second section of the ninth article, which provides, that the Adjutant General shall be appointed by the governor, by and with the advice and consent of the senate. It requires a concurrence of action on the part of the executive and senate, and, in our judgment, until this takes place the incumbent under the old constitution holds under his commission.

It is clear to our minds, that it was the intention of the framers of the constitution to abolish the life tenure, by which most of the offices under the constitution and laws of this State may heretofore have been held, and in the particular case of the Adjutant General to limit his term of service to the period of six years. But it is equally plain to our minds, that the person who held the office when the new constitution went into operation, continues to hold it until such time as he be superseded by the concurrent action of the governor and senate, or shall resign, or shall be removed by death, or in pursuance of the sentence of a court martial, as is provided in the fifteenth section of the second article of the constitution.

We do not consider the twelfth section of the second article as conferring on the executive the power to issue the commission to the appellant. That section only authorises him to fill vacancies, and if none existed in the case now before us, that section did not apply to it. Our opinion is, that until the governor and senate concurred in the appointment of an Adjutant General, the appellee held under his commission, and as no such concurrence has been had, he still continues to do so.

We do not wish to be understood as saying, that under no circumstances could the governor issue a commission to a person as Adjutant General without the concurrence of the senate. In the event of resignation, death or removal of the officer during the recess of the senate, we are of opinion the governor would have the right to issue a temporary commission, because in that case there would be a vacancy which he would be authorised to fill, but as the case is presented to us, we are of opinion the office was filled at the time the commission issued to the appellant.

In regard to that part of the argument of the learned counsel for the appellant which was based on the supposititious case, that if the foregoing reasoning be correct, the senate might defeat both the spirit and letter of the constitution by a failure to obey its injunctions, we have only to observe, that in all human contrivances confidence must be reposed somewhere, and that under the distribution of the powers of government in our State, it is not given to the judiciary to compel action on the part of a co-ordinate branch of the government. Its authority is confined to restraining the potency of its enactments when they transcend constitutional limits.

We see no error in the decision of the circuit court, and therefore affirm its order.

Order affirmed.