Townsend v. Kurtz

34 A. 1123, 83 Md. 331, 1896 Md. LEXIS 69

• Court: Court of Appeals of Maryland
• Decided: June 19, 1896
• Status: Published

Opinion

Boyd, J.,

delivered the opinion of the Court.

■ This case involves the title to the office of Insurance Commissioner of the State of Maryland, and was brought to this Court by an appeal from an order of the Superior Court of Baltimore City directing the issue of a peremptory writ of mandamus, commanding the appellant, the defendant below, to deliver to the appellee all books, papers, etc., belonging to or in anywise appertaining to the said office, ánd to surrender the office to him. A brief statement of the facts will ■suggest the points involved in the controversy. On December 30, 1892, I. Freeman Rasin was appointed Insurance Commissioner for the the term of four years from the date of his appointment, by the Board of Public Works, which was then composed of his Excellency, Frank Brown, Governor; Hon. Marion DeK. Smith, Comptroller, and Hon. Spencer C. Jones, Treasurer. On November 30, 1895, Mr. Rasin tendered his resignation, which was accepted on December 11, 1895, and on the 18th day of the latter month the board unanimously elected the appellant Insurance Commissioner. On the same day Governor Brown issued a commission to him to “ hold and execute said office justly, honestly, and faithfully for the term of four years from the date of this commission, or until you shall be duly discharged therefrom.” The minutes of the proceedings do not show the time for which he was elected, but section 121 of Article 23 of the Code of Public General Laws provides that the chief officer of the Insurance Department “ shall be appointed by the Governor, Treasurer and Comptroller for the term of four years, and shall be known as the Insurance Commissioner * * * and shall hold his office during the term for which he is appointed, or until his successor is appointed and qualified, unless sooner removed by the Governor, Treasurer and Comptroller.” Under that appointment the appellant regularly qualified by giving the bond prescribed by the statute and taking the oath of office, and entered upon the duties of his office. On March the 12th, 1896, the Board of Public Works, which was then composed of his Excellency, Lloyd Lowndes, Governor ; ITon. Robert P. Graham, Comptroller, and Hon. Thomas Shryock, Treasurer, adopted a resolution that “ Thomas P. Townsend, Insurance Commissioner, be removed from office to take effect upon the appointment and qualification of his successor,” and on the next day unanimously elected the appellee for the term of four years from the date of his appointment. On the 17th day of that month Governor Lowndes issued a commission to the appellee, who filed his bond, took the oath of office as required by law, and subsequently made a demand on the appellant for the transfer of his office, etc., which was refused. No charges were filed against the appellant for misconduct, incompetency or other cause, and he was removed without prior notice or hearing.

The case was tried before the Court without a jury and the above facts were admitted. The appellee offered a prayer, which was granted, and the appellant one which was rejected, and the ruling of the Court on the prayers presents the question before us for review. The right of the appellee to have the writ of mandamus issue is by his prayer made to depend upon the finding by the Court that the appellant was removed from the office by the Governor, Comptroller and Treasurer, whilst that of the appellant asked for a verdict in liis favor because the attempted removal was not for cause and was without any previous notice or hearing.

It is contended on the part of the appellee that the tenure of this office is not for a fixed term, but its duration is uncertain and indefinite, and therefore the incumbent is removable at the will of the appointing power. It is well settled that where there is no limit fixed to the term office and the appointee holds merely at the will of the appointing power, he may be removed without notice and without charges being preferred or reasons assigned. But it would seem clear that under the very terms of the statute the tenure of this office is not for such an indefinite term as that. The statute says he shall be appointed “ for the term of four years,” and that he “ shall hold his office during the term for which he is appointed, or until his successor is appointed and qualified, unless sooner removed by the Governor, Treasurer, and Comptroller.” We will have occasion to discuss later on the effect of this power of removal, but it cannot properly be said that the appointment is not originally for a definite term, although subject to removal by the action of all of the officers above named. It is true he may not hold the office four years by reason of death, resignation, or his removal, if done in the way authorized by law, but that is the time designated-by the statute for which he shall hold it, subject to these contingencies. It is therefore distinguished from that class of cases in which the appointing power is authorized to appoint officers without naming some fixed term. Most, if not all, officers provided for by the Constitution, may be removed under the express authority given by that instrument, but-the fact that they may be removed, does not convert their offices from those for definite terms into those held at the will of the persons making the appointment. The Constitution, for example, in section 13 of Art. 2, says that the term of all civil officers appointed by the Governor and Senate, except in cases otherwise provided for, shall “ continue for two years (unless removed from office) until their successors respectively qualify according to law,” and section 15 of the same Article authorizes the Governor to “ remove for incompetency or misconduct all civil officers who received the appoinment from the executive for a term of years.”- It has never been suggested, so far as we are aware, that such offices were not for the fixed term of at least two years, notwithstanding the fact the incumbents might be removed within that time.

Nor can we receive any aid in our consideration of this point from the language “ or until his successor is appointed and qualified.” “Or” in that connection is frequently if not generally equivalent to “ and,” as in the case of Lynn et al. v. Mayor, etc., of Cumberland, 77 Md. 449, where by an ordinance a tax collector was required to be elected annually and it was provided that he should “ hold his office for one year, or until his successor was duly elected and qualified.” This Court held that his bond given after such an election was responsible for the second year, although the liability of securities was involved, because his successor had not qualified.

But the Legislature having expressly said that-the Insurance Commissioner should be appointed for the term of four years, and knowing that his term might be shortened by resignation or in some other legal way, declared that he should hold the office during the term for which he is appointed, or until his successor is appointed and qualified. The duties of the Commissioner are important, and the Legislature wisely provided against a vacancy, and that is evidently all that provision was intended for. If there could be any doubt about this construction of the statute, the case of Miles v. Stevenson, 80 Md. 358, would seem to be conclusive of it. The Act of 1890, chapter 113, which was then under consideration, expressly provided that the road supervisor should hold his office “ for two years, or until his successor is duly appointed and qualified,” and should be subject to removal for incompetency, wilful neglect of duty, or misconduct in office. But this Court held that the incumbent, Stevenson, could only be removed for one of the causes mentioned in the statute, whilst if the construction of the appellee be correct, that the language “or until his successor is appointed and qualified” terminated the term of office of Townsend when Kurtz was appointed and qualified, the same would have applied to that case and Miles’ appointment would have been valid.

But there can be no question that the Governor, Comptroller and Treasurer have the power to remove this officer under some circumstances, and hence it becomes important to determine whether their action in removing Mr. Townsend without assigning any cause or giving him notice or hearing was lawful.' It must be conceded that if the appellant could only have been removed for cause he was entitled to notice and an opportunity to defend himself, for, unless the statute authorize it, no one appointed for a definite term can be removed for cause without having an opportunity to be .heard in his defence. The great weight of authority is to that effect, and Miles v. Stevenson, supra, conclusively settles it as the law of this State.

But the real question is whether the statute under consideration is to be so construed as to limit the power of removal to one for cause. The statute makes no express declaration on the subject, and we must be guided by the meaning of the language used, by the provisions in the Constitution and other statutes in reference to the removal of officers, by the history of the law in establishing this office and by the reasoning of such authorities as we find applicable to the case. It is contended on the part of the appellant that it is the policy of the State to continue in office for the term the incumbent who has been elected or appointed for a definite term, provided he competently and faithfully performs the duties of the office, unless there is something clearly to manifest a contrary intention in the law under which he is elected or appointed. It is true that both our Constitution and our statute laws do designate causes for which most of our officers can be removed, but it is also true that the Legislature has the undoubted right to authorize the appointing power to remove its appointees without assigning any cause when they are appointed under statutory laws. Most of the officers referred to in the Constitution are either elected by the people or appointed by the Governor, by and with the consent of' the Senate, and are not, as in this case, subject to removal by the action of those who have the exclusive power to appoint. The causes for removal usually given in the Constitution are incompetency, wilful neglect of duty and misconduct in office. But does the fact that most of the officers provided for by the Constitution and the statutes can only be removed for cause aid the appellant in his contention ? When we find that the framers of the Constitution and the Legislatures have generally named the causes for which officers can be removed before the expiration of their terms, and that in this case no causes for removal are given, does it follow by a necessary or reasonable implication that the Legislature nevertheless intended to limit the power of removal to that for cause ? Is not the contrary inference rather to be drawn —that, inasmuch as the practice has been to name the causes for which officers can be removed, when they are omitted, the Legislature did not intend to limit the power of removal to any particular cause or causes, but intended to leave it to the discretion of the persons vested with the power of removal ? The Legislature authorized these three officers to make the appointment and the removal could only be accomplished by their unanimous consent. The Governor is elected by the people for four years, the Comptroller for two years and the Treasurer by the Legislature every two years, and the lawmakers who gave them this power to appoint this officer might well assume that they would only exercise the power of removal given them when the interests of the public demanded it. After the appointment was made they might see that the appointee was not exactly the right man for this important position, although it would be difficult to establish charges of incompetency or misconduct in office. The law requires the Insurance Commissioner to report annually to the Governor his official acts on or before the 1st day of June, and to report to the Comptroller annually on the 1st day of December, the fees received and the expenses and disbursements, and to pay into the treasury all excess of receipts over disbursements. So while it is a distinct department, it is kept in close contact with those who appoint its chief officer.

But the history of the organization of the Insurance Department throws some light on this question. By the Act of 1872, chapter 388, the Comptroller was authorized and directed “ to assign a clerk in charge of said department, who was to be known as the Insurance Commissioner for the State of Maryland, and he * * * shall hold his office during the term of the Comptroller making the appointment, or until his successor is appointed and qualified, unless sooner removed by the Comptroller.” Now, it can scarcely be doubted that the Comptroller could have removed this clerk thus assigned to this office without preferring charges, for although he was known as Insurance Commissioner and his term of office was fixed and he received the same salary that the Commissioner now receives, he was a mere subordinate officer of the Comptroller. The Act of 1878, chapter 106, which is now section 121 of Article 23, of the Code, used the same language as to the removal as the Act of 1872. If we are correct in assuming that the Comptroller could have removed the clerk known as Insurance Commissioner, concerning which there would seem to be but little if any doubt, why could not the Governor, Comptroller and Treasurer have the same privilege when the Legislature has vested tlie power of removal in them by the identical language used in the former case ? It would have been an easy matter for the Legislature to have said “ unless sooner removed for cause,” etc., or to have designated the cause for removal, if such was the intention. But as it did not do so we do not feel justified in reading this law as if words which were left out had been inserted in it, when we can so easily see that it is possible, if not probable, that they were never intended to be there. We are not unmindful of the effect of this construction,' but, as was said by Judge Alvey in McBlair v. Bond, 41 Md. 157: “In the course of the argument it was strongly urged that such construction should not be adopted if any other could be maintained, as thereby an incumbent of the office would be subject to causeless and unwarranted removal by the executive. But in answer to this it may be said, that, in the organization of government, confidence must be reposed somewhere, and that no more effectual check could well be imposed upon the undue exercise of the Governor’s power over this office than has been imposed by requiring the concurrence of the Senate before removal can be accomplished. The Governor and the Senate are alike the immediate representatives of the people and whatever they do in their official capacity they do under a solemn responsibility to their constituents. The Courts have no right to assume that there has been or will be any undue and improper exercise of power by a co-ordinate branch of the government.”

In this case the confidence of the Legislature was reposed in these three high officers that the powers vested in them would not be ruthlessly exercised, and if at any time the law has been or shall be abused it can easily be remedied by the Legislature itself.

We find few analogous provisions in the laws of this State. Section 22, of Article 2, of the Constitution, provides that “ A Secretary of State shall be appointed by the Governor by and with the advice and consent of the Senate, who shall continue in office unless sooner removed by the Governor, till the end of the official term of the Governor.” But the appointment must be sanctioned by the Senate, and he is such an officer as is included in section 15 of Article 2, and therefore can only be removed for one of the causes named therein unless possibly with the consent of the Senate without cause, although we do not deem it necessary to pass upon that question. The State Reporter is appointed by the Court of Appeals, who “ shall hold his office for the term of four years, unless sooner removed by the said Judges.” Although that question has never arisen, there would seem to be little doubt that this Court could remove the Reporter before the expiration of the four years without preferring charges. The nature of his duties requires him to come in close and frequent contact with the members of this Court and it is important for the proper discharge of his duties that he and the Judges work harmoniously together. It may be that shortly after he is appointed it is discovered that the public interests may suffer by his continuance in office, although it would be difficult to establish a charge of incompetency, neglect of duty or misconduct in office, and such charges should be 1 fully established when made. The Legislature having authorized the Judges of this Court to appoint him, fixed his term of office, but made it contingent upon the act of this Court if it sees proper, to remove him and did not deem it necessary to limit that removal to any particular cause or causes, but left it to the discretion of the Court. The language used in the case of the Reporter is the same as in that of the Insurance Commissioner.

The authorities on this question are, as might probably be expected, conflicting. In the case of the State v. Mitchell, 50 Kansas, 289, Mitchell was elected a railroad commissioner under a statute which provided for the election of three persons to hold the office for the term of one, two and three years, respectively, and that “ the executive council shall in like manner, before the first day of April in each year thereafter, elect a commissioner to continue in office for the term of three years from said date. * * * The executive council may at any time remove such commissioner, or any of them, and elect others to fill the vacancy,” etc. The Court, through Chief Judge Horton, said: “ The statute, in our opinion, may be construed to read as continuing in office a commissioner for the term of three years, unless sooner removed by the executive council. If the statute be construed in this way, some operation is given to all its provisions—that the term of office of railroad commissioner is for three years, unless removed before the expiration from it by the executive council ; but if there is no removal or resignation, the term expires in three years.” It held that it must give effect to. all the provisions of the statute—that giving the power to remove as well as that fixing The term, and that to construe the provision to mean a removal for cause or upon charges after notice, “ we must judicially interpolate into the statute words to change its meaning.” It is true that the Court referred to the fact that the journals of the Senate and House showed that there had been an effort to insert in the statute a provision for removal “for good cause shown,” which was rejected by the Legislature, but it did not base its decision on that fact alone, but on such reasoning as we think is peculiarly applicable to this case. Tt will be observed that in reaching the same conclusion we have reached, it construed the statute to be equivalent to the very language used in the statute we are now considering.

In Sweeney v. Stevens, 46 N. J. L. 345, a jailer was appointed “ for the term of five years and until another be appointed in his stead, but such jailor may at any time be removed from office by a vote of two-thirds of all the chosen free-holders of said county for the time being.” He was removed without hearing or assigning any cause, and just two days before the board had commended him for his efficiency. The Court said : “ This language is plain and seems cleariy to authorize the removal of the defendant in the mode in which it has been attempted. We have been referred to no judicial decision and are aware of none which would justify an engrafting upon it of any provision to defeat the power it appears to confer. The Legislature, in creating the office, had the right to provide for its vacation in such manner as they saw fit, and in ascertaining what the manner is we must take their language in its ordinary import.” After referring to the claim of the counsel that the fact that the board had commended the defendant for his efficiency, showed there was no cause for removal, the Court said : “But these incidents, although they may show that the removal did not grow out of anything connected with the discharge of his official duties, do not indicate that there was no other reason satisfactory to the members voting for the resolution, and it was not illegal for them to vote upon other considerations.”

In Eckloff v. District of Columbia, 135 U. S. 240, the Court held that “ the grant of a general power to remove carries with it the right to remove at any time or in any manner deemed best, with or without notice.” See also Commonwealth v. Harriman, 134 Mass. 314; Ex parte Hennen, 13 Pet. 250 ; State v. Somers, 35 Neb. 322 ; Speed v. Common Council, 98 Mich. 360.

On the other hand, we have been referred to the cases of State v. Brown, 57 Mo. Appeals, 199, and Hallgreen v. Campbell, 82 Mich. 255. The Missouri case was not decided by the Court of last resort in that State, although by a Court entitled to very great respect for its learned decisions. The charter of St. Louis gave the commissioners of charitable institutions power to remove an appointed officer by an unanimous vote, but did not prescribe the method of procedure before removal. The Court held that the incum'bent of a definite term was not removable, except for cause, when the removal was not expressly declared to be exercisable at pleasure. But there was an ordinance of the city in force which declared that “ before any removal should be made, the person accused shall have a full, open and impartial hearing before the commissioners,” and although the general doctrine was asserted in an unmistakable manner, it was not necessary for the purposes of the case, as the ordinance required a hearing.

In the Michigan case there was also a statement that would seem to sustain the appellant’s contention, but in Trainor et al. v. Board of County Auditors, 89 Michigan, 162, reported in 15th L. R. A. 95, the Court, in answer to the citation of Michigan cases to sustain the position that the policy of the system of government of that State favored appointments for fixed periods and almost entirely rejected the policy of removals at will, said that three of the cases cited were elective and the terms fixed by the Constitution, that in two the law expressly stated the method of procedure to be taken in removals, and that “in Hallgreen v. Campbell the power to remove certain officers at the pleasure of the council was expressly given in the same section of the charter that mentioned the marshal as an officer. He was not included among those that might be so removed. But this last case recognizes, as do others, in this State, the authority of the Legislature to authorize the removal of the appointive officers, such as the relators, at the will of the appointing power.” Trainor and the other relators were appointed for a year, and were removed under a statute which gave the auditors power to remove any officer or agent appointed by them when in their opinion he was incompetent to execute properly the duties of his office or when, on charges and evidence, they shall be satisfied that he had been guilty of official misconduct or willful neglect of duty, etc. The Court held that no prior notice was necessary to remove for incompetency, as the statute made a distinction between the two classes of cases.

Without attempting the hopeless task of reconciling the authorities on all the questions, there is no conflict between them on some points. When the statute has given the appointing power authority to remove the appointee, although originally appointed for a definite term of years, it can be exercised. The point of divergence between the cases is as to how the removal can be accomplished when the law granting the power is silent on the subject. On the one side it is said that m such case it must be implied that the power can only be exercised for cause which admittedly requires notice, hearing, etc., while the other line of cases refuses to permit the Court to interpolate words that the Legislature did not see fit to use. As we see our lawmakers have declared the various causes for which certain officers may be removed, and have thereby declared they can only be removed for cause, but have in this instance been silent on the subject, we think the safer rule to be to hold that they have thus manifested an intention not to limit the Governor, Treasurer and Comptroller to any particular cause or causes for removal of the Insurance Commissioner, and have thereby practically left it to their discretion, which of course must be honestly and fairly exercised. The order of the Court below will be affirmed.

(Decided June 19th, 1896).

Order affirmed with costs to the appellee.