delivered the following dissenting opinion:
This is an appeal from a judgment of the Superior Court of- Baltimore city, refusing the writ of mandamus and dismissing the petition of the appellants.
The agreed facts, as we find them in the record, are that on the 18th day of November, 1865, the appellants were appointed by the then Mayor and City Council of Baltimore, constables, one for the 15th and the other for the 19th ward of said city, to serve as such for two years from that date; that they were commissioned, gave bond, took the oaths, as prescribed by the Laws and the Constitution of 1864, and entered upon the discharge of the duties pertaining to said office; that they were holding said offices of constables, under said appointment, on the 8th day of October, 1867, and had not resigned said offices at that time, or at any time since then; that on the said 8th day of October, 1867, three days after the Constitution of 1867 was adopted and went into operation, the then Mayor and City Council, whilst the appellants were still holding their offices under the appointment of 18th of November, 1865, appointed them to the same offices for the 19th ward of the city, to serve for two years. It is further agreed that the new Mayor and City Council of Baltimore, elected under the provisions of the Constitution of 1867, on the 21st day of November, 1867, appointed, and the Mayor commissioned, as constables for the *263same ward, the 19th, the appellee, and that he qualified and bonded under the present Constitution and Laws, and entered on the discharge of his duties as such constable. The question submitted to this Court for solution is, which of these parties is entitled to hold and exercise the office of constable for the 19th ward of the city of Baltimore? Its solution depends upon a proper interpretation of the Constitution, and it may be well to enquire, by what rule of construction the Court should be governed in giving an interpretation to that instrument. There are many rules laid down for our guidance, sometimes we are to be governed by the rule which requires a strict construction, sometimes by the rule which requires a large or liberal construction, depending upon the object the legislators had in view in framing, and the circumstances surrounding the instrument. The Court of Appeals have given us the rule by which we are to be governed in the construction of such an instrument as we. have now before us. Chief Judge Le Gbaud, delivering the opinion of the Court in the case of The State vs. Mace, 5 Md. Rep., 350, says: “ We think the Constitution ought to have a common sense interpretation, by which we mean the sense in which it was understood by those who adopted it. Although it is a well recognized canon of construction, that when legal terms are used in a statute, they are to receive their technical meaning, unless-the contrary plainly appears to have been the intention of the Legislature, the principle, however, does not apply to the interpretation of the orgaidc law, which is to be construed, according to the acceptation of those who adopted it, as the supreme rule of conduct both for officials and individuals.” What did the framers of this instrument mean when they gave it to the people for their adoption or rejection? Did they mean that the Mayor and Council of Baltimore, whom they had retained in office for a limited time, that the wheels of government should not stop, should exercise their reserved powers in such mode as to defeat that provision, which provides that all officers should be superseded, when others should *264be elected or appointed to take their places ? For it is manifest from the 1st section of the 11th Article, they intended to supersede them by the election of a new Mayor and Council to whom they gave “such powers” as was then or might thereafter be prescribed by law; among those powers, was the power to appoint constables for the wards of Baltimore city. What did the people, those who voted for and adopted the 42d sec. of Art 4, and the 3d see. of Art. 15, understand those sections to mean? What was their intent when they adopted them as part of the organic law ? Did they understand and mean that the Mayor and City Council, retained in power only to exercise the duties of their offices as they then held them, with no new or other duties conferred, and who were holding their offices by the mere sufferance of the Convention, should seize upon new power and put into place the officei's who by the 3d sec. of the 15th Art., they determined and declared should be superseded? Or did they understand and mean that those sections should rid them of the then Mayor, City Council and all their appointees? I cannot doubt for a moment they understood and meant the latter. But it is not necessary to invoke, this rule; there is sufficient on the face of the instrument to show what Avas intended by its framers. The Mayor and Council, in office . at the time of the adoption of the present Constitution, had once had the power to appoint constables to serve for two years; they had exercised that power on the 18th day of November, 1865, and exhausted it, they had no power any where given them to make other appointments till two years from that date had expired; and when the present Constitution provided that their appointees should be superseded, they could hardly have meant that the then Mayor and Council should have the power given them to defeat that provision by re-appointing them for two years longer, and thus deprive the Mayor, they had provided should be elected in October, of all power to select his own subordinates.
*265It is argued by the counsel for the appellants that on the 5th day of October, 1867, when the present Constitution went into operation, the Constitution of 1864, was abrogated and annulled, and that the Mayor and Council then in office were immediately invested with all the powers under' that Constitution, given to the Mayor and City Council of Baltimore, and among them to make new appointments to office. This is in direct conflict with the 3d sec. of the 15th Art.; that section provides that all officers now holding office, whether by election or appointment, shall continue to hold until they shall be superseded under its provisions; where then does this Mayor get his power to appoint to these offices of the 19th ward; those offices were filled, and the Constitution said they should hold on until superseded ;0 and just here let us enquire how the Convention intended they should be superseded; is it not manifest they intended they should be superseded by officers appointed by the Mayor and Council, who should be elected on the fourth Wednesday of October, 1867? They had given to him, when he should come into office, all the powers that was then or might thereafter be prescribed by law, and the power to appoint constables was among the powers given.
It is in conflict too with the decision of the Court of Appeals, and, therefore, unsound. In the case of The State vs. Manly, 1 Md. Rep., 140, Judge Eccleston, construing the same words of the 3d sec. of Art. 15, of the present Constitution, says: “The expression 'all civil and military officers holding commissions under this State, shall continue to hold and exercise their offices, according to their present tenure, until they shall be superseded/ can only be gratified to any practical, useful extent, by giving it the construction that they 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.” Is there in the present Constitution any “ clear and manifest provision ” to alter the manner of *266exercising the reserved powers, by the Mayor and Council, under the Constitution of 1864?
This decision clearly repudiates the assumption that the old Mayor and Council held new powers under the present Constitution; they held the powers which had been given them by the old Constitution of 1864, and which were reserved to them by the present one. They had been given the power to appoint these constables for two years by the Constitution of 1864; they exercised that power and it was sound; the Mayor and Council were themselves to be. superseded before the two years expired, and they could no longer wield that power of appointment. They could not have dismissed them ; they had not resigned; they were continued in office as the Mayor and Council were, only to prevent an interregnum, and that the wheels of government might not stop.
Again, it is contended by the appellants, that “if the newly appointed constables, meaning the constables appointed by the late Mayor and Council, were old constables, their acceptance of the new commissions was, in law, a resignation of the old term, and in case of vacancy the new appointments must be for a new term, under the new Constitution, because the provision continuing officers applies only to those in office when the new Constitution went into effect. Either the vacancy must be filled for the whole term or not at all. The Constitution does not continue the term, but the officers.” We confess we do not see the force of this reasoning. When the Mayor and Council were about to appoint the appellants to office on the 8th of October, 1867, there were two acts to be done and two parties to do them; the appointment by the Mayor and Council and the resignation by the constables, one act must have preceded the other, which took place first? Was the appointment by the Mayor and Council the first? then it was void because the offices were filled and he could not appoint as we have shown. Was the resignation the first? then there was a vacancy and the then Mayor and Council could only fill it for the residue of the term, which the resign*267ing officer had to serve, under his appointment of 1865. But say the counsel “ concede the office was not vacant at the time of the appointment, it was not necessary to wait until the old term had expired to make the appointment.”
Pratt vs. Allen, 13 Conn., 119, and Marshall vs. Harwood, 5 Md. Rep., 423, are cited to sustain this proposition; when these cases come to be examined it will be found they sustain no such principles. The case referred to in 17 N. Y. Rep., I do not regard as an authority in this Court on this subject, before us, more especially as it conflicts with the principle settled in the case of The State vs. Manly, decided by the Court of Appeals of this State.
But suppose I am mistaken in these.views, and that the late Mayor and City Council of Baltimore, derived their powers from and under the new Constitution and there was not (as there really was not) any vacancy in these offices, in what section of that Constitution do the Mayor and Council find their power to vacate these offices ?
They had been appointed for two years, their time had not expired, the power was not in the Mayor and Council to turn them out, that power belonged to the Court having criminal jurisdiction, the Constitution provided they should hold their offices until superseded, did that instrument give or intend to give the then Mayor and Council power to turn them out, (I say turn them out, for if he could make new appointments for a new term, he could as well have appointed others as those then holding,) did they mean that the then Mayor and Council should be the agents to supersede them ? If they did so mean, the Mayor and Council have greatly violated their duty, for instead of superseding them, they have added two years to their term of service, and kept them in the very places they were to leave upon being superseded by their successors. We think the present Constitution gave the Mayor and Council no such power. If there had been a vacancy, and the then Mayor and Council possessed powers, as claimed for them under the Constitution of 1867, the question would be different, the 43d *268sec. of the 4th Art. is in these words: “ In the event of a vacancy-in the office of a justice of the peace, the Governor shall appoint a person to serve, as justice of the peace, for the residue of the term: and in case of a vacancy in the office of constable, the County Commissioners of the county in which the vacancy occurs, or the Mayor and City Council of Baltimore, as the case may be, shall appoint a person to serve as constable for the residue of the term.” It is contended, as I have before said, that if these constables accepted the new appointment of the Mayor and Council it created a vacancy. How was it to be filled ? By giving them an appointment for two years ? Certainly not, for that would violate the section of the Constitution referred to, because that says they should be appointed for the residue of the term of the resigning or vacating officer. But these offices' were not vacant, the incumbents had not been dismissed by the Court; it is admitted in the record that at the time of the appointment on the 8th of October, 1867, these constables, the appellants had not resigned nor have they at any time since. Then by what authority did the Mayor and City Council make these appointments on the 8th of October, 1867. "We can see none, we think they transcended their powers, therefore I agree with the Court below and think their judgment ought to be affirmed.