The Cecil Whig. [volume] (Elkton, Md.) 1841-current, 1896-08-08
School Commissioners,

lTeStHt. MtSSTS. EVEREST Nnlte
and Ash
Minutes Of last meeting read and ap-
proved.
In accordance with chatter of the State
school law requiring the Commissioners to
meet on the first Tuesday of August or rs
soon thereafter as may be. met and organized
by electing f. $. Everist President. George
Biddle. Secretary, Treasurer and Examiner
for the ensuing term of two years. at n salary
of II, $50 per year. and John S. Writ rs
counsel to the Board.
In view OF the appointment, by the Cover
nor of George S. McVey, by request, Mr.. Writ
handed in the following opinion:-
ELKroN. Mp., July u. 1896.
Mr.. f. 5. Everist President Board school
Commissioners.
DEAR SIR:-ln reply to the request that |
would give the Board an opinion as to the
legality of the appointment of George 5. Me-
Vey as School Commissioner in the place of
George II. Ash the present Commissioner. |
beg to say that the appointment of Mr.. Nc
Vey is, in my opinion, null and void.
Under the provisions of Chapter 34l of the
Laws of 1899 George Biddle was appointed
School Commissioner to serve for four years
from the LIST of August 1892 and until his
successor should qualify. and his appoint
mcnt was confirmed by the State Senate
Mr.. Biddlc having resigned the position of
school Commissioner to accept that of school
Examiner George Il. Ash was appointed
School Commissioner in his place. and his
appointment was regularly confirmed by the
State Senate.
At the last session of the Senate the
Governor sent to the Senate the name of
! Samuel G. Bye AS successor of George r.
Ash but the Senate adjourned without taking
action upon the appointment.
The Act of assembly above referred to
gives the appointment of School Com
missioners not to the Governor alone. but to
the Governor and Senate. and they are APP
pointed not only for II definite term but in
addition thereto until their successors qualify
according to law. This means of course.
that the successor shall he duly appointed
and qualified for unless he he legally APP
pointed he could not qualify according to
law.
1t is clear that the Governor cannot make
vacancy in the office by appointing Il
successor to the incumbent. The vacancy
must actually exist before the power of APP
pointment can he exercised.
1t is also clear that if the Governor had
not assumed the right to appoint successor
the present incumbent would still hold the
office with full and complete power to dis
charge the duties in relation to it. The office
therefore is not vacant, and the Governor has
therefore, no right to appoint successor.
The words until their successors shall
qualify have been often construed by the
courts, and have been held to mean Il extern
sion of the definite term of Office. and that ,
vacancy exists while an incumbent, lawfully
appointed holds Ivy virtue of such extension
of his term.
am clearly of the opinion that George r.
Ash holds the office of School Commissioner,
not as II mere de facto officer, but as the law
full and rightful possessor of the Office. And
being thus lawfully in possession of the
o flee, with full power to execute all its
functions. the Cover has no power to supplant
him by the mere appointment Of Il successor
without the concurrence of the Senate
1t seems to me that the decision of the
Court of appeals in the case of Smoot VS..
Somerville. 50 Nd. "a, is conclusive upon
this point
l. therefore. advise the Board that it is
their duty to decline to recognize the legality
of the appointment of Mr.. McVey
Yours very truly.
JOHN S. WIRT
Counsel to Board.
Samuel Tyson was appointed trustee Of
school No. 5. Sixth district. in place of
Robert Love, declined.
The appointment of William +. Crothers
to No. l, Eighth district was confirmed.
George S. McVey, Esq. presented his com
mission as Il member of the Board The
opinion of Mr.. Writ was read and Mr.. NTcVey
was informed that the Board would he GOV
erned by the opinion of its counsel
Adjourned. GEORGE BIDpLE.
Secretary