Summary
holding that the Governor did not have to obtain the consent of the Senate for the appointment of a candidate when the first candidate had been rejected by the Senate, the Senate was not in session at the time that the second candidate was appointed, and because the Legislature, which created and therefore controlled the office, did not require by statute that the Governor seek the Senate's approval in those circumstances
Summary of this case from Schisler v. StateOpinion
Decided October 22d 1918.
Supervisors of Elections: civil officers, under Section 10 of Article 2 of Constitution; power of Governor to appoint; Section 1 of Article 53; after rejection by Senate.
At the January Session of the General Assembly of 1916, the Governor, by and with the advice and consent of the Senate, appointed the appellee L., and also C. and F., to constitute the Board of Supervisors of Elections for Somerset County. These appointees were commissioned and qualified, and entered upon the duties of their office. In January, 1918, the Democratic State Central Committee for Somerset County submitted to the Governor the names of four eligible persons, with the request that he select one of said persons to represent the Democratic Party of Somerset County as an Election Supervisor for that county for two years, beginning May 1, 1918. From these four names the Governor selected Q. to represent the Democratic Party and, from a list submitted by the Republican State Central Committee for Somerset County, he selected F. These two persons, together with W., the Governor's personal selection, were, within fifty days from the commencement of the Session of 1918, nominated to the Senate for appointment and confirmation as the Board of Election Supervisors of Somerset County for two years, beginning May 1, 1918, to succeed the Board of Election Supervisors first above mentioned, then holding office in Somerset County. The Senate confirmed the nominations of F. and W., but within ten days next before the adjournment of the Legislature, i.e., on March 27, 1918, rejected the nomination of Q. After the adjournment of the Legislature, the Governor, on May 20, 1918, appointed and commissioned the appellant R., who was one of the persons submitted for appointment by the Democratic State Central Committee for Somerset County, as Supervisor of Elections to represent the Democratic Party, vice Q., rejected. R. qualified as Supervisor, under the appointment, by taking the required oath of office on May 25, 1918. L. refused, upon the request of R., to vacate and surrender to him the office of Supervisor of Elections to which he had been appointed in 1916, and, in his answer to a petition filed by R. for a writ of mandamus to command him to vacate and surrender to R. the office of Supervisor, alleged that he, L., was originally appointed by the Governor, with the concurrence of the Senate, from a list of qualified persons submitted to the Governor by the then Democratic State Central Committee for Somerset County to represent the Democratic Party of said county on said board, in accordance with the provisions of the election law of Maryland; that, having been so appointed, he was entitled to serve in such capacity until his successor should be appointed and qualified according to law; that Q. having been rejected by the Senate of Maryland upon his nomination as aforesaid to that body by the Governor as the representative of the Democratic Party aforesaid on said board, the respondent L. lawfully continued in office as a member of said board under his appointment aforesaid, and was entitled to so serve until the appointment and qualification according to law of his successor; that the Senate of Maryland having rejected the nomination of Q., in the manner and at the time aforesaid, and at a time when the Governor was afforded ample opportunity before the adjournment of the Legislature of 1918, to nominate to the Senate some other suitable person to serve in said office, if he so desired; the Governor was not authorized, required or permitted by law, after the final adjournment of the Legislature, under the conditions and circumstances above set forth, to make an appointment of Supervisor of Elections for Somerset County to take the place of the respondent L., without the Senate's consent, and at a time when such consent could not be obtained; that no vacancy existed in said office and that the Governor could not create a vacancy, and the respondent L. continued in office as the only legal and qualified member of said board to represent the Democratic Party of said county thereon. To this answer the appellant R. demurred. Held, that the Governor had the power to appoint the appellant R. at the time the appointment was made, and that the demurrer to the answer should have been sustained and a writ of mandamus issued as prayed. pp. 149-153
Whilst the office of Supervisor of Elections is a civil office within the meaning of Section 10, Article 2 of the Constitution, it is an office of statutory creation, and as to such class of offices it is within the power of the Legislature to modify, control or abolish them and to change the mode of appointment, without violating any provision of the Constitution. p. 153
The Code, Section 1, Article 33, provides that the Governor biennially, by and with the advice and consent of the Senate, if in session, and if not in session, then the Governor alone, shall appoint in each and every county of the State and in the City of Baltimore, three persons who shall constitute and be styled "The Board of Supervisors of Elections of the respective counties and of said city." It further prescribes the qualifications of such appointees and declares that they shall "hold office for two years and until their successors are appointed and qualified." Admitting that there was no vacancy in the office at the time the appellant R. was appointed, and that the appellee L. was legally occupying the office until the appointment and qualification of his successor, Held: pp. 153-155
1. That the statute creating the office clearly contemplates that the members of the board should be primarily appointed biennially by the Governor, by and with the advice and consent of the Senate, and further provides that two of its members shall be selected from the two leading political parties of the State from lists of four eligible persons submitted by the State Central Committees of said respective parties. p. 154
2. That if the position of the appellee L. were sustained, he would hold said office in defiance of one of the main provisions of the statute, as he was not recommended for appointment by the State Central Committee of Somerset County. p. 154
3. Supervisors of Elections being civil officers, it was the plain duty of the Governor, both by the statute and under Section 13, Article 2 of the Constitution, to send the names of the nominees to the Senate within fifty days of the commencement of its session; that the Governor discharged this duty, but the Senate having rejected one of his nominees, while he might have submitted another name in the place of the one rejected, there is no provision either in the Constitution or the statute requiring him to do so. p. 154
4. That the Senate not being in session at the time the appointment of the appellant R. was made, the Governor had the power, under the express provision of the statute, to appoint him in the place of Q., whom the Senate had rejected. p. 154
5. That the appellant R. was legally appointed and, having qualified, the demurrer to the answer should have been sustained and a writ of mandamus issued as prayed. p. 155
Decided October 22d 1918.
Appeal from Circuit Court for Somerset County. (DUER, J.)
The facts are stated in the opinion of the Court.
The cause was argued before BOYD, C.J., BRISCOE, BURKE, THOMAS, PATTISON, URNER and CONSTABLE, JJ.
The case was submitted on briefs by Gordon Tull, for appellant.
Joshua W. Miles, for appellee.
At the January Session of the Legislature of Maryland for the year 1916, the Governor by and with the advice and consent of the Senate, appointed Edward B. Lankford, Lambert W. Cox and George H. Ford to be and constitute the Board of Supervisors of Election for Somerset County. These appointees were commissioned, and qualified, and entered upon the duties of their office.
In January, 1918, the Democratic State Central Committee for Somerset County submitted to the Governor the names of four eligible persons, viz: Lorie C. Quinn, Jr., John W. Riggin, William J. Phillips and John W. Morris, with the request that he select one of said persons to represent the Democratic party of Somerset County as an Election Supervisor for that county for two years beginning the first day of May, 1918. From this list the Governor selected Lorie C. Quinn, Jr., to represent the Democratic party, and from a list submitted by the Republican State Central Committee for Somerset County, he selected George H. Ford. These two persons, together with Henry J. Waters, who was the Governor's personal selection, were, within fifty days from the commencement of the session of 1918, nominated to the Senate for appointment and confirmation as the Board of Election Supervisors of Somerset County for two years beginning on the first day of May, 1918, to succeed the Board of Supervisors of Election above mentioned, then holding office in Somerset County. The Senate confirmed the nomination of George H. Ford and Henry J. Waters, but within ten days next before the adjournment of the Legislature, to wit, on the 27th of March, 1918, rejected the nomination of Lorie C. Quinn, Jr. After the adjournment of the Legislature the Governor, on the 20th day of May, 1918, appointed and commissioned the appellant, John W. Riggin, who was one of the persons submitted for appointment by the Democratic State Central Committee for Somerset County, * * * a Supervisor of Elections to represent the Democratic Party vice L.C. Quinn rejected. Riggin qualified, under the appointment as Supervisor of Elections for Somerset County by taking the required oath of office before the clerk of the Circuit Court for Somerset County on the 23rd day of May, 1918. He possessed the qualifications prescribed by law for the office of Supervisor of Elections.
Edward B. Lankford, who, as above stated, was appointed and qualified in 1916 as a Supervisor of Elections, claiming that the appointment and qualification of John W. Riggin was illegal, refused upon the request of said Riggin, to vacate and surrender to him the office of Supervisor of Elections to which he had been appointed in 1916, together with certain books and papers of said office then in his possession. He is now in the possession of said office and is discharging the duties thereof.
The appellant filed a petition in the Circuit Court for Somerset County in which, after stating the essential facts which we have set forth, together with certain other facts, which, for the purposes of this case need not be considered, in which he prayed "that a writ of mandamus may be issued directed to the said Edward B. Lankford, former member of the Board of Supervisors of Elections for Somerset County, as aforesaid, commanding him to vacate, give up and surrender to your petitioner the office of Supervisor of Elections for Somerset County, which is by him unlawfully held and exercised to the damage of your petitioner and to the detriment of the public service; and also commanding him to return to the office of the Board of Supervisors of Elections for Somerset County the said Minute Book, and all other property belonging to said board in his possession, whatsoever may be its nature, kind or description, and further, commanding him, his agents, servants, employees and assistants to desist from interfering or intermeddling in any manner with your petitioner or his associates in office in the legal performance of their duties as the Board of Supervisors of Elections for Somerset County."
The answer of the appellee to this petition did not deny any of the essential facts, but set out in the third paragraph of his answer the following facts and constructions of law as constituting good cause why the writ of mandamus should not issue:
"(1) That the time of his original appointment as a member of the Board of Supervisors of Elections for Somerset County, during the session of the Legislature of 1916, as alleged in the first paragraph of said petition, his said appointment was made by the Governor of Maryland, by and with the consent of the Senate, from the list of qualified persons submitted to the Governor by the then Democratic State Central Committee for Somerset County, to represent the Democratic Party on said board, and your respondent was so appointed to represent said Democratic Party of said county on said board, in accordance with the provisions of the election laws of Maryland in such case made and provided; (2) that he is advised and alleges that having been so appointed he is entitled to serve in such capacity until his successor shall be appointed and qualified according to law; that the said Lorie C. Quinn, Jr., having been rejected by the Senate of Maryland, upon his nomination as aforesaid to that body by the Governor of Maryland, as the representative of the Democratic Party aforesaid on said board, your respondent lawfully continued in office as a member of the Board of Supervisors of Elections of Somerset County under his appointment aforesaid, and is entitled to so serve until the appointment and qualification according to law of his successor; (3) that the Senate of Maryland having rejected the nomination of Lorie C. Quinn, Jr., in the manner and at the time set out in plaintiff's petition, and at a time also when the Governor of Maryland was afforded ample opportunity before the adjournment of the Legislature of 1918, to nominate to said Senate some other suitable person to serve in said office, if he so desired, the said Governor is not authorized, required, or permitted by law, after the final adjournment of the Legislature, under the conditions and in the state of circumstances above set forth, to make an appointment of Supervisor of Elections for Somerset County to take the place of your respondent, without the Senate's consent, and at a time when such consent could not be obtained; (4) that he is advised and alleges that no vacancy existed in said office, and that the Governor could not create a vacancy, and your respondent continued in office as the only legal and qualified member of the Board of Supervisors of Elections for Somerset County, to represent the Democratic Party of said county on said board."
To this answer the appellant demurred. The demurrer was overruled, and the appellant declining to plead further the petition was dismissed by order of Court. The appeal before us was taken from that order.
This Court on the 15th day of October, 1918, filed in the case the following per curiam opinion: "The Court being of opinion that the Governor had the power to appoint the appellant, John W. Riggin, at the time the appointment was made and that the demurrer to the answer should have been sustained. It is ordered this 15th day of October, 1918, by the Court of Appeals of Maryland that the order of the lower Court overruling the demurrer and dismissing the petition of said John W. Riggin be reversed and the cause remanded in order that a writ of mandamus issue as prayed. An opinion will be filed later giving the reasons of the Court more fully for the conclusion reached."
The office of Supervisor of Elections is a civil office within the meaning of section 10, Article 2, of the Constitution. Sappington v. Slade, 91 Md. 640.
But it is an office of statutory creation, and as to such class of offices it is within the power of the Legislature to modify, control, or abolish them and to change the mode of appointment without violating any provision of the Constitution. Anderson v. Baker, 23 Md. 627; Warfield v. County Commissioners, 28 Md. 76; Townsend v. Kurtz, 83 Md. 331.
The Code, section 1, Article 33, provides that the Governor biennially by and with the advice and consent of the Senate if in session, and if not in session, then the Governor alone, shall appoint in each and every county of the State and in the City of Baltimore, three persons who shall constitute and be styled "The Board of Supervisors of Election of the respective counties and of said city." It further prescribes the qualifications of such appointees, and declares that they shall "hold office for two years and until their successors are appointed and qualified." It is admitted under the conceded facts of this case that there was no vacancy in the office at the time the appellant was appointed, and it must also be admitted that the appellee was legally occupying the office until the appointment and qualification of his successor. The sole question presented by the appeal is one of law, and is this: Did the Governor have the power to appoint the appellant at the time he did appoint him? The statute creating the office clearly contemplates that the members of the board should be primarily appointed biennially by the Governor by and with the advice and consent of the Senate, and it further provides that two of its members shall be selected from the two leading political parties of the State from lists of four eligible persons submitted by the State Central Committees of said respective parties. If the position of the appellee be sustained he will hold said office in defiance of one of the main provisions of the Statute, as he was not recommended for appointment by the State Central Committee of Somerset County. Supervisors of Elections being civil officers, it was the plain duty of the Governor, both by the Statute and under section 13, Article 2, of the Constitution, to send the names of the nominees to the Senate within fifty days of the commencement of its session. This duty he discharged, but the Senate rejected one of his nominees. While he might have submitted another name in the place of the one rejected, we find no provision either in the Constitution or the Statute requiring him to do so. There may be many reasons why he could not do so, and the law wisely, we think, refrained from imposing that duty upon him. The Senate, not being in session at the time the appointment of the appellant was made, the Governor had the power under the express provision of the Statute to appoint him in the place of Lorie C. Quinn, Jr., whom the Senate had rejected. Under this construction the obvious purpose and intent of the law is maintained and given effect. No other conclusion, in our opinion, could be reached without giving a narrow and restricted meaning to the Statute and by reading into the Constitution and law prohibitions upon the power of the Governor which do not appear therein.
For these reasons we held that the appellant was legally appointed and having qualified, the demurrer to the answer should have been sustained, and accordingly the order dismissing the petition was reversed, and the case was remanded in order that a writ of mandamus issue as prayed. County Commissioners v. Banks, 80 Md. 321; Hardcastle v. M. D.R.R. Co., 32 Md. 32; Hooper v. New, 85 Md. 565.
It is ordered that the costs be paid by the appellee.