Maryland independent. [volume] (Port Tobacco, Md.) 1874-current, 1894-11-23

Briscoe on Monday fled the following writ
ten opinion deciding the act Of 1894, treating
two more Commissioners for Chare county
unconstitutional Col. Wilmer will AXE the
case up to the Court Of Appeals.
The question raised by the demurrer to the
defendants Plea in this case turns tpon the
constitutonality Of the act Of 1894 G. ais
titled an act fixing the terms Of Office OF
County Commissioners, Of Charles equity.
By this act, the General Assemby Increased
the number Of County Commissioners from
three to Eve, and authorized the Governor
Immediately after the passage Of the net TO APP
point IRON the legally qualified citizens OF
Charles county, two persons TO serve as Coun-
/ ty Commissioners until the geHera election,
to be held therein on the Tuesday next after
the first Monday in November, eighteen hum
\ bred and ninety-fve, or until their successors
are duly elected and qualified There can
be no qresion shat it is within the constitu-
tioaal power Of the General Assembly to fix
the number, the compensation the powers,
and duties Of the County Commissioners in
each county. and to prescribe The period not
stsseaiEk six leS-s, at which ises snail be
elected. IL the set stopped sese tisre would
he no di1ichi. in '~'id'uS l. wholly eonstits
/ tlonal But the act goes surh further. II
creates Vacancy, qucad the TWO additional
]
| County Commissioners ahd directs the Gov
ernor 10 Gil the vacancy Ivy an immediate az
yoiHtment until the general election in 1885.
I Aud this raises the question for first time 10
this State, las far IS have been abe to as
certain, ssuming that the net Of 1894 creates
a new ofiice) whether Il newl, created office
which has never had an incumbent anu
which &c oae is by law aHlhoriged TO hold
can he deemed vacant so - u authorize an
appointment 10 nil II.
In seine OF ,he States, FOR Instance IN Ne
rada and Indiana the affirmative OF this prop
nsition has been sustained by Judicial au-
thority Stocking VS. State Ith Indiana 326
Hedley VS.. The Board of Commissioners
Blaekford, lis. Clarke vs.. irwin Nevada
1870 While IN Wisconsin, Mississippi and
! Kontucky contrary doctrine has been held
/ by the Courts. State VS.. Messon IA Wis
cousin 1853 0leary VS.. Adler 81 Mississippi
2s. Speed &c , VS.. Crawford Metet. lky.)
2l0
But whatever m.r be the decisions else
where, and they are far from harmonious,
we are acre dealing with plain provision OF
DER own constitution, and il must be inter
preted according 10 its plain and accepted
meaning By the first section OF Act OF the
Constitution it is provided that County
Commissioners SHALL BE ELECTED on general
ticket Of each county by lie qualified veters
OF the several counties OF The State, &c. -
aud they shall be elected at such times, in such
numbers, &c. as may be prescribed by lnN
This section Of the constitution WAS amended.
by the act OF 1880 C.. 255, and adopted by
vote Of the people in 1890, TO read as above.
Ii is therefor clear tuGl they arc 10 hold
their Office bJ election aud not by appoint
ment. An appointment by the Governor
caunUt he the same IA constitutional sense,
as an election To au office Blu; it is insisted
that tne act OF 1884 created vacancy IN the
office of CSultt Commissioners qnoah the
two additional Commissioners and the con-
slilution is silent upon The hlllug oil this va
cancy, the Governor had The power, TO make
the appointment under section 10, Act Of
the Gonstituson. 1t will be seen however
that this section upplies to civil ana mlilC.fy
officers, whose appoiniment or election Is mol
Otherwise provided Tor bY the constitution
And as the constitution has provided tor the
election OF County Commissioners by the peo-
ME il cannot amply 10 this class of officers.
In the case of CantweI Us. Owens, IA Md.
2z5. Judge Tuck says lhe lth section OF
The second article (SG4l provides, that the
Governor and Senate shall appoint all evil
and military officers OF The State, whose APP
uointment or election is not otherwise pro-
: vided for The office OF Juslice of Peace, can
J not be supplied under this clause, because Tue
10th section of the 4th article PROVIDES ior an
: election BY the people But IL IS eonteaue1
shat when vacancy occurs IL must oe hlieu
according 10 the I'm seetioh o' .Ie -su
t article, that il by The iSysfnor and senate,
+ as therein specified i 1is Interpretation oe
adopted, it will deprive He clause IN ihe lSln
I .ac,ion of article 4 which relates 10 vacancies
r in This office of all efeet whatever, and i'm
nuts IN the conyeutionh design TO place the
office of Justice Of lid Peace in respect 10
filing vacancies on Auditing with other Off
? eos . here their rlaiu language sdmits OF
d;fI.rent constructor And TO the same eff
{ fa,.t - The case Of Dads VS.. State 18th Nd
! ISL But we, Gave s:sumed AS We were
: hound 70 do, o adsHgMe puffy the conten-
], lion of the deit{s5-sxn M -1hal the Office
OF County CoIbmi.sio - ssissas a newly ere
atea Office, untsr thspisr 2l5, OF the Act OF
1894 1t is cleaf, hOwerer, that the Office IS
j. one GRATED b, the constitution, and to be
is filed by the people, by su election
e The act Of 1894, only added two additional
/, Commissioners, aud these can only be hied
!, originally, By the people in the constitution
Al al mode, which is m election The rule is
d well settled that the constitution must re-
1
II in which the people are supposed to have un-
d derstood its language. Our form OF gov
e. eminent" saa the Court, IN mayor e; al vs.
err State, 10Th Nd 453, lin It's various changes
in has never recop nized the power OF appoint
/ nent 10 Office rs an executive pcrr0gatlvei the
constitution so lar irom treating II as an in
herent executive power indicates that IT De
longs where the people choose to place IL
* Under our constitution, COUNTY Commission
y, ers are 10 he elected by The people and IL Il
IN only where the office has been once filled ina
ne the power is lodged in the Governor to MI
u vacascy. A vacancy under our constltutl u
* means one wheL the office is untitled caused
ne by the death, resiRnation, removal, or o'he
Ut disqualification of former incumbent |
u the constitution declares the mode, that IS !
u, us limitation or prohibition on the Legislation
us net to adopt different dne The trainers o
ne our constitution, nor the people wien the!
d, adopted the amendment of 1890 never con
III templaied. that the Office Of COUNTY C0nmis
Is sioners shoul be filled by executive appoint
ment. This has been the accepted interpre
tation of the constitution upon this SUBJECT
of and conceive it TO be the duty Of the Cour
On not TO deviate therefrom until different con
or strustion has been given by our Ceurt OF AP
ia psals. Being of opinion then, that tue ACT 0
or 1894 G. 2l5, is invalid ald unconstitutional
70 in so far MS it directs the I'D interim appoint
~ ment Of the defendants, the demurrer OF IN
., State to defendants plea will be sustained
n. Judgment custer frOu the office OF Count.
/ Commissioner will therefore be entered NJ
10 ag inst the defendants but as there is no pre-
nt tepce OF imp oper motives on their part, tn
i nominal lint OF once cent only will he imPos
n. ed upon each Oh them. Demurrer susiaine'
10 defendants ulsa and Indictment OF OuSte