McBlair v. Bond

Alvey, J.

delivered the opinion of the Court.

This is an appeal from a judgment of the Circuit Court for Anne Arundel County, refusing to the appellant the writ of mandamus to restore him to the office of Adjutant General of the State, of which, as he alleges, he has been wrongfully and unlawfully dispossessed by the appellee.

The facts of the case are all disclosed in the pleadings, and the questions thereon are raised by demurrer.

The case has been argued with rare ability by the counsel of the contestants, and every argument has been urged in support of their respective positions that ingenuity could suggest. Several questions of grave importance have been discussed, but in the view we have of the case, it will not be necessary to decide more than one of the questions raised on the pleadings; and that question is, whether the appellant was liable to be removed from the office of Adjutant General, to which he had been legally appointed, simply by the appointment and qualification of a successor, without the sentence of a court-martial having been pronounced against him; it being admitted that the appellee, during the last session of the Legislature, was appointed to the office by the Governor, by and with the advice and consent of the Senate, and that, after being commissioned, and having qualified, he entered the office and excluded the appellant from the further discharge of its functions.

This question depends for its solution upon the proper construction of certain provisions of the Constitution of the State.

By Art. 9, sec. 2, it is provided that there shall be an Adjutant General, appointed by the Governor, by and with the advice and consent of the Senate ; and that “ he shall hold his office until the appointment and qualification of his successor, or until removed in pursuance of the sentence of a Court-martial.”

By Art.. 2, sec 10, defining the powers of the Governor, it is declared that he 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 may not be otherwise provided for ; and by sec. 11 of the same Article, it is provided that in case of any vacancy, during the recess of the Senate, in any office which the Governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue -in ■force until the end of the next session of the Legislature, or until some other person is appointed to the same office, whichever shall first occur. And by sec. 15 of the same Article, the Governor has power to remove any military officer of the State, in pursuance of the sentence of a Court-martial.

The Adjutant General, prior to the adoption of the Constitution of 1851, held his office during good behaviour, removable only by sentence of a Court-martial. Watkins vs. Watkins, 2 Md., 341. But, by the Constitution of 1851, Art. 9, sec. 2, it was provided that the Adjutant General should be appointed by the Governor, by and with the advice and consent of the Senate, and that he should hold his office for the term of six years. By the Constitution of 1864, Art. 9. sec. 3, while the Adjutant General was to be appointed by the Governor, with the concurrence of the Senate, he was to hold his office at the pleasure of the Governor.

It has been contended in this case, that, the appellant being rightfully in office, there was no power in the Governor, with the concurrence of the Senate, to remove him, except in the single event of conviction and sentence by Court-martial; and the argument in support of this position is- mainly derived from the fact that the Convention which framed the present Constitution, declined to readopt the tenure of office that had been prescribed either by the Constitution of 1851, or that of 1864 ; and ás it prescribed no specific time for which the incumbent should hold, it must be supposed to have been the intention of the Convention to restore to the office the tenure by which it was held under the old Constitution of 1776, which was in force until superseded by the Constitution of 1851. But in this conclusion, from the best consideration we have been able to give the subject, we cannot agree.

It is true, the Constitution, by Art. 9, sec. 2, does not prescribe any certain or particular term for which the Adjutant General shall hold his office, but it has, we think, plainly designated the event and manner by which his holding shall terminate, and that is, the appointment and qualification of his successor. The Governor has no power, as he had under the Constitution of 1864, to remove the incumbent at his own mere will and pleasure; but with the concurrence of the Senate, a successor may be appointed, and upon the qualification of the appointee, the incumbent’s right to hold will, eo instanli, terminate. This, we think, is the plain meaning of the Constitutional provision under consideration, for if it be not the meaning, it is difficult to conjecture the purpose for which the terms, “until the appointment and qualification of his successor” could have been employed. These terms, according to our understanding of the provision, were intended as terms of limitation, and to allow them any meaning at all, we must accept them as expressive of the event upon the occurrence of which the incumbent’s right to exercise the functions of the office shall cease. They refer to no preceding tenure or limitation, and they must be taken, by their own force, as prescribing the tenure by which the office was to be held.

According to this Constitutional provision, there are two modes by which the Adjutant General may be removed from or superseded in his office, the first is, the appointment by the Governor, with the concurrence of the Senate, of a successor; and the second is, on conviction and sentence of a Court-martial. In regard to the first of these, the appointment and qualification of a successor operate immediate removal; while the second, that of conviction and sentence of Court-martial, only form the basis or justification for the action of the Governor in removing the incumbent, under section 15, of Art. 2 of the Constitution. It is there that the Constitution has provided for removal of the incumbent both during the session and the recess of the Senate. During the session of the Senate the removal may be effected by the nomination and confirmation of a successor, while during the recess, in pursuance of a sentence of a court-martial, the Governor alone has the power of removal; and upon such removal he has •power, under sec. 11, of Art. 2, to fill the vacancy thus created, until the end. of the next session of the Senate, or until another appointment bfe made as authorized by the Constitution.

• It is plainly manifest that it was the design of the framers of the Constitution to change the tenure of the office from what it-had been under the preceding Constitution of 1851 and 1861, to some different limitation ; but if it had been their purpose to restore the life tenure, such as existed under the old Constitution of lllfí, as contended by the appellant, we must suppose that apt and appropriate terms would have been employed to express that intent, especially as there was a familiar formula at hand, •in respect to which there was no ambiguity. It would be by mere implication, and that without any intrinsic evidence of an intention on the part of the framers of the Constitution, that there could be predicated of the terms used a life tenure in the office. Instead of declaring that the incumbent should hold his office during life or good ■behaviour, or for a specific term of years, or at the pleasure of the Governor, as by former Constitutions, it was declared that he shall hold until the appointment and qualification of his successor, or until removed in pursuance of the sentence of a Court-martial. These terms, while they do not expressly declare that the Governor shall have power, with the concurrence of the Senate, to remove the incumbent, do, by the strongest ¡possible implication, declare that such power shall exist, and that, upon its exercise, the right of the incumbent to hold the office shall thereby terminate and give place to the right of the new appointee. It was certainly competent to the Convention to fix such limitation to the holding of the office, and, from the language employed, we conclude such to have been the intention.

(Decided 1st July, 1874.)

In the course of the argument, it was strongly urged that such construction should not he adopted, if any other could be maintained, as thereby the incumbent of the office would be subject to causeless and unwarranted removal by the executive. But in answer to this it may he 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.

Having concluded that there was power in the Governor, with the concurrence of the Senate, to supersede the appellant in office by the appointment of a successor, it becomes unnecessary for us to consider the question of the supposed disqualification of the appellant, under the XIVth amendment to the Constitution of the United States.

It follows that the judgment appealed from must be affirmed.

Judgment affirmed.