The Democratic advocate. [volume] (Westminster, Md.) 1865-1972, 1872-05-18
A Legal Question Settled.

the Juries, for the present term, were
not legally drawn. TIL question was
brought 10 the attention of the Court,
on Monday last, Judge Hayden alone
being present, aud after very full
discussion by the Bar, pro ct con, Judge
Hayden delivered the opinion of the
Court, sustaining the validity of the
acts of Mr.. Blizzard, as Clerk dc tacto.
The following is the opinion
understand it to be admitted that Mr.
James Blizzard was duly appointed Clerk
To the County Commissioners for this conn.
y on the I'd day of December, 1867. and
before entering upon the duties OF the Office
he took and subscribed the oath prescribed
for such officers by the 18th section OF article
I OF the Code Of Public Local laws
whether the oath was taken before oue or
all OF the Commissioners does not appear
from the records He was re.appointed
IN December 1859, and again in December
1870. He entered upon the duties Of the
Office on the ID Of December, 1867. by
virtue OF the appointment then made, and
continued to occupy the said Office and to
perform the duties thereof from the day of
his hrst appointment until Nav. IsT2.-
Among other duties which he performed as
Clerk TO the Commissioners was that of
making out and filing with the Clerk of this
Court, from time to time, hats Of the taxable
inhabitants and residents of this county
whose names appear on the tax books Of
the county. in conformity with the pro.
| visions and requirements of tue Acts Of
Assembly of 1867, chapter $40, and 1870.
chapter 40, relating to the selection OF
Jurors.
Il is further admitted that Mr. Blizzard
did not, at the time Of his appointment or
at any time thereafter, take and subscribe
before the Clerk Of this Court, or before
any other person, the oath prescribed by
| section 9, article |, Of the Consultation Of
1861, to be taken by every person elected
/ or appointed to any office of profit or trast
under the Consultation or the laws made
/ pursuant thereto.
! Ii has been argued that the Office of
Clerk to the County Commissioners is an
Office within the meaning of the section of
/ the Constitution above referred 10, and that
Mr.. Blizzard should have taken the oath
prescribed by that section. That as he
did not take that oath the office was vacant.
because the 9Th section Of the same article
1 Of the Constitution provides that every
person elected Or appointed to Office in this
State who shall refuse or neglect to take
the oath or affirmation provided for in the
sixth section of this article shall be con.
sidered as having refused to accept the said
Office, and new election or appointment
shall be made as in ease of refusal to &C.
cept or resignation Of Pn Office" And the
| office being vacant there was no one le ally
/ qualified to make out the lists Of taxable
inhabitants of the county and return Them
to the Clerk Of the Court, to b, used by
| the Judges in selecting the lists Of Jurors.
and that the drawing Of the jury was there
/ fore void.
On the other hand il has been argued
that the office Of the Clerk to the Coauty
Commissioners is not an office within the
meaning OF the sections of the Constitution
I which have been referred to. and that il
was not therefore necessary io- him 10 take
The oatli prescribed by that instrument
That Mr.. Blizzard when first appointed Ind
taken the oath required by Law, and that it
was not necessary for him to take the oath
/ again when he was re appointed and con.
| tiuued in Office. That he was therefore
legally Clerk TO the Commissioners, and /
having returned the lists of the taxable in
habilants as required by law the drawing Of |
the jury Is good and valid.
| Now, do not propose to decide at this /
time whether the Office Of Clerk to the |
County Commissioners is an office within !
the meaning of the several sections of the
Constitution read in argument or not, al.
though | am Inclined to the opinion that it
is, and tina, Mr.. Blizzard when appointed
in December, 1867, should have taken the
oath set out in the 9Th section OF article / |
of the Constitution before the Clerk of this
Court.
From the view take Of this matter il Is
not necessary that should decide that anes
ton, because if Mr. Blizzard was not an
officer de ju1'e i is clear that he was an Off
GER de .fdcto. The mere claim 10 be
public officer and the performance of
single act or even numhSr of acts in that
character would net perhaps constitute an
individual an officer de fdcto. There must
be some color Of an election or appoint
ment or an acquiescence on tue part Of the
public for length OF time, which would
afford strong presumption Of at least
colorado election or appointment" Phil
lips on Ev. 4th American Ed. with Cowen,
Hill h Edwards notes, pa se 693, note I73.
Now in this case we have more than the
evidence OF a colorado appointment. Tits
admitted that Mr.. Blizzard was actually an
pointed in December, 1867, and entered
upon the duties OF the office by virtue O;
that appointment, and was subsequently |
twice re appointed, and performed the du.
ties Of the o.bce for more than four years.
This would constitute him an officer de
faefo, even If he had taken no oath ct
Office at all Being an officer d facso all |
his acts as such must be held to be valid, I
so far as third persons or the public are
concerned.
I'm the case Of public officers who are /
such de tdoto, acting under eolor of Office 1
by an election or appointment not strictly |
legal, or without having qualified them |
selves by the requisite tests, or by holding /
over after the period prescribed for new 1
appointment, as in the ease Of Sheriffs, /
Constables, &c.. their acts are held valid /
as respects tbs rights Of third persons who |
have an interest in them, and as concerns !
the public, in order TO prevent the taiiul'e /
OF Justice"-2 Kent's Commentaries, rs. |
The case Of The People vs.. Collins, Z |
johnson Reports, is directly in point. 1t |
was an application for maadamHs 10 re
quire Collins, the Town Clerk Of Turin, to /
record the survey Of llighway that had |
been laid out and established By the Con- I
missioners Of Highways. The return to |
the writ was that the Commissioners had |
been duly elected; that BY the law every
Commissioner Of Highways. before he |
enters upon the execution OF his Office, and
within fifteen days after his election, shall |
take aud subscribe an oath before some jus.
tiee OF the Peace, &c; ard if he shall not
take and subscribe such oath, Be-, such
neglect shall be deemed a refusal 10 serve
in such Office; and the town may proceed
to choose another, &c, that neither of the
Commissioners did take and subscribe such
oath, &c. The analogy between this case
and the one now before the Court Is CON
pleie.