Port Tobacco times, and Charles County advertiser. (Port Tobacco, Md.) 1845-1898, 1884-04-25
krOh VS. SMOOt.

KrOh VS. SmOOt.
| 1t seems that DR.. Smoot and Mr. Philip
A. Kroh, the recent nominee of Governor
McLane, are thoroughly hitched up for a
legal controversy on the inspectorship at
warehouse No. 2. As will he seen in the
local columns of the TINES to-day, Mr..
Kroh has petitioned the Supreme Count al
Baltimore city for mandamus to give
him possession and his petition has been
refused in pro torma decree by Judge
Stewart. The petition of Mr.. Kroh con-
cedes that DR.. Smoot, who had previously
been appointed by Governor Hamilton to
fill vacancy, was nominated to the late
Senate on the 3rd of January and con
firmed on the 18th. We intimitated last
week an opinion that, if the reported con-
firmation of DR.. Smoot by the Senate
should prove to be true. the Doctor would
stand in the same situation as Somerville.
whose claim to the warehouse agains
DR.. Smoot, the appointee of Gov. Hamil-
ton, was sustained by the Court of APP
peals two years ago. While the cases are
not precisely analogous, there does not ap-
pear to be any legal difference upon which
a proper legal distinction can be bas.
ed. DR.. Smoot. having been nominated
by the Governor and confirmed by the
Senate, would seem at least to hold by as
strong legal right as Mr. Somervile, if
his confirmation at the present session
does not give him still stronger claim.
The question does not however appear to
be entirely free from embarrassment.
The following is the text of section II
of Article ofthe Constitution, regulating
appointments to vacancies, up,.u which
the controversy in this case hinges:
sin case Of any vacancy during the recess o.
the Senate, in any Office which the Governor
has power TO fill. be shall appoint some suitable
person to said Office, whose commission shall
continue in force until the end of the next ses-
sion of the Legislature, or until some other
person is appointed TO the same Office which
ever shall FIRST occur and the nomination Of
the person thus appointed, during the recess,
or, of some other person in his place shall be
made TO the Senate within thirty days after the
next meeting Of the Legislature"
1t will be observed that, by the first
clause OF the section quoted. the Governor
is empowered to fl the vacancy during
the recess and it is provided that the
commission of such appointee shall con-
tinue in force until the end of The next
session of the Legislature, or until some
other person is appointed to the same po-
sition, which ever shall first occur; and
by the second clause it is provided that
such person or some other person in his
place shall be nominated to the Senate
within thirty days after the next meeting
OF the Legislature.
The question presents itself, what was
intended TO be accomplished by the nom
ination of such person or some other per
son to succeed him? 1t had already, in
the preceding cause, been provided that
the commission and tenure Of office of
such person nominated by the Governor,
to fill vacancy shall continue until the
end of the session or the appointment of
his successor; what then was to be the ef-
feet Of his nomination or that of some 9th
er person to the Senate, when followed by
the confirmation OF the Senate The
natural suppositiou would be that such
nomination and confirmation would in
vest the appointee to the vacancy or the
person nominated as his successor with
an additional term OF two years. This
would appear to be the most natural an d
easy construction of the whole section,
and such construction would not neces-
sarily conflict with section ID, which pro-
vides for the appointment of civil officer.
The counsel for DR.. Smoot in their answer
to the petition do not, however, seem to
have claimed that effect for the subseq uent
nomination and confirmation.
But if this Interpretation be excluded
and the respondents counsel seem to have
excluded it by their answer. it would still
seem that the subsequent nomination and
confirmation ought to have some some ef-
feet, and the only other effect that could
be given to it would seem to be that it
authorized the appointee to hold on after
the end of the session and unit his sue
cessor had duly qualified. This la ter in
depreciation would, under the decision in
the Somerville case, give DR.. Smoot the
Office for two years longer