Smith v. Thursby

28 Md. 244, 1868 Md. LEXIS 18

• Court: Court of Appeals of Maryland
• Decided: February 14, 1868
• Status: Published

Opinions

Bartol, C. J.,

delivered the opinion of this Court.

This is an application by the appellants for the writ of mandamus to oust the appellee from the office of constable of the nineteenth ward of the city of Baltimore.

It appears from the record that the appellants claim the office in question by virtue of an appointment for two years, made by the Mayor and City Council, on the 8th day of October, 1867. They were commissioned, gave bond and took the oath of office as prescribed by the Constitution and laws. The Mayor and City Council elected under the provisions of the Constitution of 1867, considering that the appointment of the appellants made by their predecessors was invalid, on the 21st day of November, 1867, appointed the appellee to the office, to hold for two years from that date, and he having been commissioned and qualified according to law, claims to be legally entitled to the office. The single question therefore which is presented by this appeal is the legality of the appointment of the appellants, made on the 8th day of October, because if that be valid, they are entitled to the writ, as no more than two constables can be lawfully appointed for the nineteenth ward at the same time.

The decision of this question depends upon the true construction of the provisions of the new Constitution, which went into operation on the 5th day of October, 1867. Under the Constitution of 1864, Art. 4, sec. 47, the apellants Smith and Davis, had been appointed constables, the former for the 15th ward and the latter for the 19th ward; their appointments were made on the 18th day of November, 1865, for two years, they were in office at the time the new Constitution went into operation. By Art. 15, sec. 3, it is provided that “ The Governor and all officers, civil and military, now holding office under this State, whether by election or appointment, shall continue to hold, exercise and discharge the duties of their offices (unless inconsistent with, or otherwise provided in this Constitution) until they shall be superseded under its provisions, and until their successors shall be duly qualified.”

Under this provision, the appellants were continued in office, not until the end of the term for which they had been originally appointed; but “until they should be superseded under the provisions of the new Constitution.” That is until new appointments should be made, in the manner and by the authority prescribed in the new Constitution, for the appointment of constables. See Watkins vs. Watkins, 2 Md. Rep., 341; Taylor vs. Hebden, 24 Md. Rep. 202. From the principles established by these decisions it follows that after the new Constitution went into effect, the appellants might at any time have been displaced or superseded by the appointment and qualification of others in their place, or by the reappointment of themselves in the manner and for the term prescribed in the new Constitution.

No valid objection therefore can be made to the appointments of the 8th day of October, on the ground that the term for which the incumbents had originally been appointed had not expired. They were not continued in office till the end of that term, but until superseded.

Were they then legally superseded by the appointments of the 8th of October, the acceptance by them of their new commissions and their qualifications thereunder? This is the point upon which the decision of this case must turn. Had the Mayor and City Council the power to make that appointment on the 8th day of October?

The Constitution, Art. 4, sec. 42, provides that “The Mayor and City Council of Baltimore shall appoint such number of constables for the several wards of the city of Baltimore, as are now, or may hereafter be prescribed by law, who shall hold their office for two years.” This clause confers upon the Mayor and City Council the power of making the appointment, in the plainest and most comprehensive words. But it has been argued that the power thus conferred could be exercised only by the new incumbents of the offices of Mayor and City Council, whose election was provided for in the instrument, and who were to go into office on the first Monday of November thereafter. This argument is unsupported by any thing contained in the section conferring the power. The words are general and unrestricted, and in respect to the exercise of the power make no distinction between the Mayor and City Council then in office and those who were to succeed them.

The argument has been based upon the words of the continuing clause already cited. Under that clause, the Mayor and City Cotmcil then in office, were continued in office until superseded by the election and qualification of their successors as provided in the 11th Article.

By force of these provisions the then existing Mayor and City Council were continued in office from the 5th day of October, till the first Monday in November, clothed with the powers then appertaining to their offices. But it is said their official powers and duties during that period, were-such only as they possessed under the old Constitution, and not such as appertained to their offices under the Constitution of 1867. If this be so, then they had no power to make the appointments on the 8th day of October; tor the power of superseding incumbents in the office of constable Avas conferred upon the Mayor and City Council by the new Constitution only, and did not before exist. We proceed then to consider the nature of the powers and duties belonging to the old Mayor and City Council, while they remained in office after the new Constitution went into effect.

The effect of the adoption and promulgation of the Constitution of 1867, was to repeal and abrogate the pre-existing Constitution; and, therefore, all officers whether continued in office by its provisions, or elected under it, could hold and exercise only those powers which it authorizes, and in the manner it prescribes. This is, upon general principles, the effect of every repealing statute; the law repealed is abrogated and annulled, and is regarded as if it never existed. Key vs. Godwin, 4 Moore & Payne, 341; Sedgwick on Stat. and Const. Law, 129.

The same principle applies to the repeal of a State Constitution, Avhich is the organic laAV. Where the new Constitution, however, by its terms, continues in force or operation any provisions of the old, such provisions are made pro hao vice parts of the new. An example of this may be found in the 2d sec. of the 15th Art., which declares that “the several Courts, existing at the time of the adoption of this Constitution, shall, until superseded under its provisions, continue .with like powers and jurisdiction, and in the exercise thereof, in all respects, as if this Constitution had not been adopted.”

By this clause we would be bound to look at the provisions of the Constitution of 1864, to ascertain the jurisdiction and powers possessed by the several Courts continued in operation, in the interval between the adoption of the new Constitution, and the organization of the new Courts therein provided for. But in sec. 3, Art. 15, the general continuing clause applicable to other officers, there are no such provisions. They are “ to hold, exercise and discharge the duties of their offices, until they shall be superseded.” That is all the duties which by the existing Constitution and Laws, appertain to the offices they hold; not those which appertained to them by the pre-existing Constitution which has been repealed. The words (unless inconsistent with, or otherwise provided in this Constitution,) are evidently designed to qualify the whole sentence; they mean that the officers shall hold over until superseded, unless it is otherwise provided in the Constitution, as where offices are abolished; and they apply also to the duties to be discharged, these continue the same as before, unless the new Constitution provides otherwise; thus conclusively showing where the duties have been changed, other duties imposed or other powers conferred, we are to look in the provisions of the new Constitution, under which the officers are continued, to ascertain their nature, extent and limitations.

This construction is the more manifest, when we refer to other parts of the Constitution. The Governor was continued in office, under the same clause we have been considering. The 2d Article prescribes the duties and powers of the Governor, among them are new powers not conferred by the Constitution of 1864, such as the veto power. There can be no doubt that these may be exercised by the present Governor, though he is an officer continued in office. The construction of the 3d sec. of Art. 15, contended for by the. appellee, would limit the powers of the present executive, to such as were conferred by the Constitution of 1864; contrary to the plain and manifest meaning of the Constitution.

The only difference between the case of the Governor and that of the Mayor and City Council of Baltimore, so far as this question is concerned, consists in the fact that the Governor is continued in office for a longer period. The words of the Constitution so far as they provide for his continuance in office, are the same. The provisions of the 2d Article, enumerating the powers and duties of the Governor, are no more general and unrestricted than those found in the 42d sec. of the 4th Art., conferring on the Mayor and City Council of Baltimore, the power to appoint constables; and in each case, it seems to us clear from the plain language of the Constitution, that the officers continued in office under the 3d sec. of the 15th Art., may exercise all the powers appertaining to their respective offices under the new Constitution.

The municipal corporation known as the Mayor and City Council of Baltimore, was not for the first time created by the Constitution of 1867. It had existed for many years as a continuing body, established by law. The 11th Article of the Constitution of 1867, recognizes its existence, provides for an election of a Mayor and City Council to succeed those then holding those offices, and prescribes when the new officers so elected shall enter upon the discharge of their duties. By the general continuing clause, the corporation officers were continued in office till that time. During that period they were in office under the provisions of the new Constitution, charged with the duties and clothed with all the powers appertaining to their offices, prescribed and conferred under the existing Constitution and laws; among these is the power to appoint constables, conferred in the plainest and most unqualified terms by the 42d sec. of the 4th Art. There is nothing in the Constitution which authorizes this Court to say, that this power could only be exercised by their successors in office. It is said the Convention so intended. If that be so then quod voluit non dixit. It is no where so expressed. In construing the instrument, our duty is to interpret it, according to its language; where that is plain and unambiguous, we are not at liberty to conjecture what may have been the possible intentions of its framers, not expressed in its language. This is a cardinal and universal rule of interpretation. Bosley vs. Mattingly, 14 B. Monroe, 89; Fisher vs. Blight, 2 Cranch., 358, 399. We have examined carefully the case of The State vs. Manly, 1 Md. Rep., 135, which was cited by the appellee, and do not understand it as establishing any doctrine in conflict with the views we have expressed.

The decision in that case was that the removal of a cause from Baltimore City Court, and the recognizance of the party to appear before “Howard County Court” were null and void, there being no such Court in existence. That decision does not touch the point involved in this case. In the opinion delivered by Judge Eggleston, he considered the construction of Art. 10, sec. 8, of the Constitution of 1851, which was similar though not identical with the continuing clause in the Constitution of 1867.

The learned Judge said: “ That it could only be gratified to any practical useful extent by giving it the construction that the officers continued, had all the powers which were given them by the old Constitution and the laws under it, to be exercised in the same manner, unless altered by some clear and manifest provision in the new Constitution.” The subject he was considering was the powers or rather the name of the “Court of Howard District of Anne Arundel county” as affected “by the provisions of the Constitution of 1851, which erected Howard District of Anne Arundel county into Howard county.” In construing Art. 8, sec. 1, he held “ that the old Court of Howard District of Anne Arundel county was continued in office as such until the election and qualification of officers under the new Constitution.” Thus giving to that provision, so far as Howard county was concerned, the same meaning as is plainly expressed by the 2d sec. of Art. 15, of our present Constitution in relation to the Courts. Taking together the two sections of the Constitution of 1851, which the learned Judge was considering, there is nothing in the conclusions stated by him which it is necessary for us to question or impugn in deciding the present case. The continuing clause in the Constitution of 1851, contained the words “according to their present tenure,” which are not found in the 3d sec. Art. 15, of the Constitution of 1867, and their omission may justify a different interpretation of the clause without impugning the reasoning of the learned Judge in The State vs. Manly. The decision of the Court however in that case did not rest upon the construction of the continuing clause alone, and cannot therefore be considered as a controlling decision in the present case, where we are called on to construe other and widely different constitutional provisions.

We have been fortified in the conclusions we have reached on this subject, by the decision of the Court of Appeals of New York in The People vs. Connover, 17 N. Y. Rep., 64. That was a case very similar to the present. By a statute passed in June, 1857, provision was made for the re-organization of the city government of New York. The law provided for an election of a new Mayor and Aldermen, and continued in office for the mean time the then Mayor and Aldermen.

The same law conferred in general terms upon the Mayor and Aldermen, new powers not before possessed, among them the power to appoint a Street Commissioner and repealed preexisting laws.

The officers thus continued in office proceeded to make an appointment of Street Commissioner, and the validity of the appointment was questioned, on the ground that such appointment could only rightfully be made by the new Mayor and Aldermen who were to come into office under the Act. But the whole Court were of opinion the appointment was legal. The reasons stated in the opinion of the Court are very clear and to onr minds quite conclusive and altogether applicable to the case before us.

(Decided 14th February, 1868.)

For the reasons already stated, this Court is of opinion that the Mayor and City Council of Baltimore, had the constitutional power to make the appointments of the appellants on the 8th day of October, and the judgment of the Superior Court must therefore be reversed.

Judgment reversed and cause remanded.