Sansbury v. Middleton , 11 Md. 296 ( 1857 )

Barton, J.,

delivered the opinion of this court.

This is an appeal from an order of the court below, refusing an application of the appellant, for a mandamus to compel the appellee to surrender to him the office of clerk of the circuit court for Prince George’s county.

The record shows, that on the 5th day of November 1851, Owen Norfolk was elected to said office; he died on the 24th day of November 1854, and, in pursuance of the 14th section of the 4th article of the constitution, Edward W. Belt was, by the judge of said court, appointed clerk “until the general election of delegates held next thereafter.” At said election, held on the 7th day of November 1S55, the appellee, Charles Middleton, was elected by the people to said office, and being duly commissioned and qualified, entered upon the discharge of the duties of the office, which duties he has continued ever since to discharge, and is now in possession of said office.

It further appears, that, at the general election of delegates, held on the 4th day of November 1857, the appellant became a candidate for said office, and having received a majority of the votes at said election, was commissioned by the governor, and has duly qualified.

Upon this statement of facts, the question presented for the decision of this court is, whether the appellee is entitled to hold the office of clerk, by virtue of his election in November 1855, for “the term of six years from the time of his election, and until a new election is held;” or only for the residue of the original term of six years, for which Owen Norfolk was elected in November 1851 ? The determination of this question depends upon the true construction of the 14th section of the 4lh article of the constitution.

That section, so far as it is material to this question, is in these words: “There shall be in each county a clerk of the circuit court, who shall be elected by the qualified voters of each county, and the person receiving the greatest number of votes, shall be declared and returned duly elected clerk of said circuit court for the said county, and shall hold his office for the term of six years from the time of his election, and until a new election is held.” * * * *

;£in case of a vacancy in the office of a clerk, the judge or judges of the court of which he was clerk, shall have the power to appoint a clerk until the general election of delegates held next thereafter, when a clerk shall be elected to fill such vacancy. ’ ’

By the express words of the first clause of this section, the term of office of a clerk to be elected by the people, is declared to be “six years from the time of his election, and until a new election is held. ’ ’ This applies not merely to the officer chosen at the first election, but to every one who is legally elected by the people afterwards; and is conclusive of the question before us, unless there be something found in the same section, or in some other part of the constitution, which limits the term of such officer.

This limitation, it has been contended, is to be found in the latter clause of the section which provides for a case of vacancy in the office, and after authorizing a temporary appointment by the court, to continue till the next general election of delegates, directs that a clerk shall then be elected to fill such vacancy.” The argument on the part of the appellant, is, that the use of the term vacancy, necessarily supposes an unexpired term; and that to fill such vacancy, without other Words, imports the filling of the office for the residue of such term. This construction is not warranted either by the words of the section, or by any general and prevailing intent, to be discovered in any other part of the constitution.

. It is true that the word vacancy, when used in written constitutions with reference to a public officer, sometimes signifies an unexpired term; but that is not necessarily so. It often relates merely to the office, without reference to the term; and, in this case, the very words of the section under consideration, so limit and define it. The case provided for, is a vacancy in the office of clerk, and the election is to fill such vacancy. What vacancy? Clearly in the office, not in the term.

The correctness of this construction, sufficiently obvious from the words of the section itself, is placed beyond all doubt or difficulty, when we examine the other parts of the constitu ■ tion. Wherever provision is made for filling a vacancy in an office, for the residue of an unexpired term only, appropriate words are used to express that intention, and the absence of any such words in the latter clause of the 14th section of the 4th article, is a plain indication of the intention of the framers of the instrument, that whenever a vacancy in the office of clerk is filled by a popular election, the person so elected shall hold for the whole term of six years, as fixed in the constitution. This view is sanctioned by precedent and authority. In the constitution of New York was the following clause: “Sheriffs and clerks of counties, including the register and clerk of the city and county of New York, shall be chosen by the electors of the respective counties once in every three years, and as often as vacancies shall happen: and the governor may remove any such sheriff, clerk, or register, at any time within the three years for which he shall be elected,” &c.

Under this clause a sheriff was elected to fill a vacancy, and the supreme court of New York decided that the sheriff so elected held for the full term of three years. The People vs. Green, 2 Wend., 266. In that case, as in this, it was argued that the election to fill a vacancy necessarily imported a tenure for an unexpired term. But the Hon. Wm. L. Marcy, then judge, who delivered the opinion of the court, uses the following language: “Green was elected, as I understand the provision, to fill the vacant office, and not merely to serve out the vacant term of his predecessor. I am inclined to think that a diversity of opinion on this subject has arisen from the different applications of the term ‘vacaticies,’ in the section of the constitution which we are considering. It has been sometimes applied to the office as contradistinguished from the term of service, and at others to the term of the office. I understand it is applicable to the office alone. When Green came into the office, he took it with all the rights, powers and incidents belonging to it, under any circumstances, one of which was a tenure of three years.”

That case is very analogous to the one before us, and the language of the learned judge, which we have quoted, applies with equal force to this case as to the one which he was deciding.

’The same provision of the constitution of New York was again brought before the courts of that State for consideration, in the case of The People vs. Coutant, 11 Wend., 132. It was a controversy involving the tenure of office of the register of the city and county of New York, elected to fill a vacancy. The supreme court, Savage, Chief Justice, delivering the opinion, adhered to the same construction of the constitutional provision. This last case was taken, by appeal, to the court of errors, and after full argument and mature consideration, was affirmed, Chancellor Walworth delivering an able and lucid opinion. 11 Wend., 511. With reference to that case it may be remarked, that the tenure or term of office of the register was not defined in express language by the constitution, but the court determined that by implication it was a term for three years; which determination, while it governed their decision of the question involved, assimilates the case to this, except that here the official term of the clerk is declared, by express words, to be for six years.

In the case of Hughes vs. Buckingham, decided by the high court of errors and appeals of Mississippi, 5 Sm. & Mar., 632, it was held, that the clerk of the superior court of chancery, chosen to fill a vacancy, was entitled to hold the office for the whole term of four years, that having been fixed, by a general law of the State, as the term of all offices not otherwise provided for.

By the constitution of Tennessee, art. 7, sec. 1, it was provided, i£That there shall be elected in each county, by the qualified voters therein, one sheriff, one trustee, and one register; the sheriff and trustee for two years, and the register for four years.” In the 2nd section it was provided, that 4fShould a vacancy occur, subsequent to the election, in the office of sheriff, trustee, or register, it shall be filled by the justices, *' * * * and the person so appointed shall continue in office until his successor shall be elected and qualified ; and such office shall be filled, by the qualified voters, at the first election for any of the county officers.”

Under that provision Evans was elected register in 1836, died on the 4th of April 1837, when ITurst was appointed, by the justices, to fill the vacancy in the office of register, and at the first election of county officers thereafter, on the 3rd day of March 1838, was elected by the people. Afterwards, in 1840, at the expiration of the term of four years for which Evans had been elected, Powers was elected, and claimed the office. But the supreme court decided that Hurst was entitled to hold the office for the whole term of four years. 2 Humph. Rep., 24, Powers vs. Hurst.

In the case of Banton vs. Wilson, 4 Texas, 400, it was decided by the supreme court, Hemphill, C. J., delivering the opinion, that where the tenure of an office is fixed, by the constitution, at four years, each succeeding incumbent, although elected to fill a vacancy, is entitled, unless it be otherwise provided in the constitution itself, to hold the office for the full period.

These decisions, by distinguished jurists in other States, of cases analogous to the one before us, are strong authorities in support of the views which we have already presented, and sustain the conclusions at which we have arrived from an examination of the provisions of our own constitution, governing the subject. These conclusions are not in conflict with any general or prevailing intent to be found in the instrument, nor are we able to perceive any mischievous' consequences or public inconvenience to result from such an interpretation.

It is manifest that the prominent designs of the framers of the constitution were to make the office of clerk, and almost all others, elective, to limit their tenure, and to avoid the necessity for special elections. These designs are all gratified by the construction which we have adopted. The order and 'harmony of the system is in no respect disturbed. There is nowhere to be found any expression of a purpose that an election for a clerk shall be held at the end of every six years, in all the counties of the State; nor can we perceive any good end that could be subserved by such an interpretation. The plain intent of the 14th section, is to direct that a vacancy shall be filled temporarily by the court, till the general election, and then that the office shall be filled, by an cléction, for the constitutional term. The power of the people, at a general eleclion, to fill the office whenever it becomes vacant, either by the efflux of time or by other cause, is clearly conferred by the constitution.

In other parts of the constitution provision is made for filling various offices, by election, at regular stated periods of two or four years. In such case appropriate words are used to express such intention. This is the case with the j udges of the orphans courts, art. 4, sec. 17, which directs that elections for those officers shall be held in every fourth year, in each county and in the city of Baltimore. When a vacancy in that office occurs, it is filled, under the 26th section of the same article, necessarily for the residue of the term only, although not so expressly declared; because the 26th section must he construed in connection with the 17th section. But no such provision as that contained in the 17th section, is to be found with reference to the office of clerk.

Being of opinion that Middleton, the appellee, is entitled to hold the office for the whole constitutional term, from the time of his election in 1855, and that the election of the appellant, in 1857, was unwarranted by the constitution, and void, we affirm the judgment.

Judgment affirmed.