Port Tobacco times, and Charles County advertiser. (Port Tobacco, Md.) 1845-1898, 1882-07-21
Tobacco InspectOrship Decision.
Opinion OF the Court Of Appeais-Ths
Incumbent 10 Retain the Office. Etc.

opinion Of the Court of Appeais-Ths
Incumbent 10 Retain the Office, Etc.
| From Thursdays Baltimore san.
| The Court of Appeals on Thursday of last week
idecided the case of Andrew }. Smoot against
| Alexander Somerrllle. i'll which the office oi
Tobacco inspector of warehouse No. was the
lsubject of contest. Judge GrasOn delivered tho
opinion OF the court: Judge Alvey giving
scented. The opinion Of the court i, MS follows:
The determination of the questions presented
ION this appeal depends upon the construction o
the eleventh, thirteenth and fourteenth section,
Iof the second article of the constitution of thi,
state. The thirteenth section provides that all
Icivi officers appointed by the Governor anq
lSenate shall be nominated to the Senate withili
fifty days from the commencement OF each rel
lguar session Of the Legislature and their term
of office except in cases otherwise prov ided for
i'll this constitution, shall commence on the first
Monday of May next ensuing their appoint menl
and continue for TWO years, unless removed
from Office and until their successor respective
ly quail fy according To law; but the term OF off
nee OF the inspectors OF tobacco shall commence
on the first Monday of March mex ensuing thei
appointment.
| The 18th section provides that ''in case of ann
vacancy during the recess of the SENATE. in any
| Office which the Governor has power To NIL I'D
shall appoint some suitable person To said Office
whose commission shall continue in force unit
the end OF the next session of the Legislature OF
| until some other person Is appointed TO the same
office, whichever shall first occur, and the
nomination OF the person thus appointed during
the recess, or some other person in his place
shall be made To the senate within 30 days afte
| the he xt meeting of the Legislature"
BY the 18th section II is provided that 'if any
vacancy shall occur during the session of the,
senate in any office which the Governor and
senate have the power to MI TN. ,iuy.rnor
shall nominate To the Senate, before its final
adjournment, proper person to MI said vacancy
unless such vacancy occurs within ten days be-
fore said final adjournment
The 18th section is exactly similar To the litt
section OF the constitution Of l>5l and the l6tl
section OF the constitution of 1861 excep: witt
respect Ia the time the term OF otfie of Tobacco,
inspectors shall commence. From the Language,
employed in these sections II is manifest tn.
power of appointment IL ati civil offices was In
tended To bc and WAS confided, not To the Cover
nor alone, but Ia the Governor and SENATE and
that the Governor has 40 power To appoint Il
once, without the advice and consent of the
SENATE, except /" MI vacancies IN office which
may occur during the recess OF the senate or IA.
provided by the fourteenth section. within ten
days before It's nnal adjournment. II mas h.ssn
contendrd that. ina>much the term of ONE.
OF tobacco Inspections commences the rirst
Monday OF March and Is Ia continue two wears,
"A vacancy occurs immediately upon the e1pira-
ton OF til" term OF two years and such would he.
the Wen, II not Tor the further provision OF
the thirteenth section, by which all officers are
10 continue In office until their >ucrr>>.lrs
respectively qualify according u law. Il II
true that the Governor .Iay appoint, hy and
with The advice and consent Of the Sruttr at IA
regular session, a successor appointed would
hr entitled Ia take l.l>~es>ion the Office, i'm
+ NirllAtIiN upon utt expiration OF the term of
Two years at his predecessor, AM in such cas-.
there would la no vacancy. hut even il no aI-
lpiutnl,-nt IL. mair by thu, Governor and S..naf
III" thirteenth section still guards against IA
vacancy 10y providing that thu. incumbent shau
remain In office until his successor shall qualify
accounting IA Law, which cannot IL, until ON,
shall have been appointed IN accordance with
the requirements oi IN" thirteenth section: that
i, by the appointment 10y the 'i,Ncruor. toy and
with tue alNlc" ami consent "f tn" senate II
a successor H. not ~ appointed. the Incumbent
VIII continue In office not "A mere dc fdoto ~
rceri but a. an officer ds Jtsyr bAthe express
al n It
Thc>'' views have b,rn sanctioned by this
court IN the csl~,-> al " atkins w. Watkins and
Harwui " Marshall. Tue same construction
has been given Ia similar provisions in ohio,
California, ,enrgia and other states in the Union.
In the constitutional convention OF ISL while n
section. from which section Il al the pr,~en ut
constitution >''rms TAI have b-s,n copied Mas the
subject ni discussion the chairman nf the cnm-
mittce on the executive de Isrl insnt stated that
the prov isinn Of that section 10y which I'M -
bcnt> in ono" were Ia continue in -.ic@
their SUCCESSORS should u, qualified accom-
law Was Inserted for the puTI.r-. of pErv$ia
ictritnU ut Ia the public Interests fr.In itSsTS-
NUNS, whether arising frnm the refrarts
III" oonNcnit"n which formed the present. COZ
>tltuti"n seems a. have i-,sn Hing to coufrr
IA" power OF appointment Ia office upon the
''"Nrrn"T Alone. "Nrrpt In cN>--~ oI abSniulc
Necessity. hv c,Hnuius such power Ia hIlI,g
vacancies which might o-rcur either during the
recess OF IN" -'uAte oT within ten days t-ioEe Its
hnal adjournment, and even Ia such ca-'> he ~
rt"Iutrui 10 nominal" ~ the ~!At. within thirty
days after The meeting Of the next Legislature
tIlr lsrfn - appointed nr some other Tor
the ofi''. and ia" commission ~ tc - r~'n APP
pointed Ia MI the vacancy j. Inllt.-i Ia the end
II III" next session "t the Legislature after ssid
adjournment. or - the time 81 the Apt.ttntnl.ut
and ihCaiinn of ihr I-,T~pn AlIs,int.Si by the
t'oSern.r AMI confirmed los the ---uAts. which
ever may r>t ocrur ~ that In NO event can
the T~r~pu appointed Ia Ill a Vacancy hold hts
commission and perform Tic duties for any
longer tim" than the session II IN" legislature
which MEETS n after TAI. appointment. while II
i eN'ienily the intruts"n of the Substitution that
he shall rmAu In nttiCs short a tim, !.
bic consistently with tie convenience II the
Governor and senate" 10y rsN4utTeiug his n"mltIA.
ton ar that ~ some other p-r~an &, II. made ID
the senate in thirty lays after tn" nlsvstius ~
th. Legislature. The power and authority 81 nd
Governor alone tp make appointments u-riu1
limited Ia the filling ~ vacancies securing du n
'SisG rcceSs nj the ~~-pate. within ten siay
II necessary "a Iunk al the facts - M
cA-e now hrfprr u fer tn" purIss~c NJ ascertain
appellant. {" tn" ufc" Of inspector 81 irlArr,u
~aS constitutional cNrrCi~r NJ power 10y ia"
Governor. III" answer 1T tn" apT-il"~ tn tho
Petition nlr~i against hlm having h---u d"murF'si
Ia. a.! the material facts stated Ia II - L.
considered ~ a .ruItt.-i - - true
Herr the court r,hcar>-,i tho history ~ IA"
appointment 81 ~pm-rVill. the nomination and
rejection % q. " Jones. and the nomination 81
~msut on the day the ~rnat" ADJOURNED.
Tbe,- facts show that the ttuvrrunr nnni mated
Mr.. Jones To- tue ~ruat". in uniformity !" tn"
thirteenth ~.rtiun 81 article II tia, constitution
A. inspector Of toiss,co at warehouse No :, A.
successor tn the appellee. whsr-' term would ~
pirr on the fir>t Monday II March fntl,iS lug hut
As that nomination Mas r'-i"rts~i by the senate
no APT ointment made and In. aE-!le. Till
help tile ofiic'. AMI xA~ xfuliy lu dI>-hArg- ~
Is duties under that claus II the thirteenth
section 81 the rpusiitutiou which prov llS> that
tncumbants of the Offices shall continue In uttic-
until their >ucc~~~irs shall respectively quAl1iH
According Ia laa. bu the third daS Ut April
ensuing. tn" Governor again nominated to The
senate for inspector of tnlarch at >.id warehouse
The appellant Sm,.It. but the senate, whether
on account Of q . pressure III legislative bust
hess u>uS.lly existing near the cI,s., OF the
.l4g Rr "a moi her cans nfE
informed. finally adjourned without having
either rejected or confirmed said nomination.,
and thus again there WAS failurr of dpIslsSa1
"i>ni 81 a SUCCESSOR 10 the Appellee, vino corr
tinued Ia hold ofilr' and dt~ruargr It's duti
under the claus Of the thirteenth section
Z the constitution to which We have b.for' n .
ferr-i- No vacancy. We have ~sii. eXist"- +
from the nr>t Monday in March on which ia,
the constitution prov ldtS that the term III uffic'
Ia the time 81 adjournment without any action
by IN. senate On the nomination 81 tn. app liant
raus- "A vacancy which had not occurred t-'fore.
There was no vacancy In the ufic. which the
Governor WAS authorized by the constitution la
al during the recess III the senate. aud Cpu~..-
quently the appointment III th. appellant
Sm,pt i void aud of no effect. and the app ll,e
~omcrvillc} II entitled In hold the Office until
his successor shall nave been appointed and
qualified In accordance with the directions
OF the thirteenth section of the second article
the constitution. Is becomes Unnecessary Ia the
view We have taken OF this cas-. Ia notice the
comm~~ which Was ISSUED Ia the appellant
further than Ia that even II the aIIpint mcnt
Of the appellant hal been cou>titutinnRllN mad,
10 I'LL vacancy, Its terms a. Ia mole Of appoint
mcnt and continuance in Office ~ the appellant
not in accordance with the prov siOnS OF tn.
constitution relating to and governing appoint
ments To MI vacancies occurring during the
cess OF the senate. The order Appealed from
will be affirmed. with costs Order affirmed.
In storm al Texarkana, Ark, Wednesday
Griess thre-story building WAS struck b,
lightning and fell in mass on top of a frame
building known as the Paragon Saloon. crush