Evening capital. (Annapolis, Md.) 1884-1910, 1907-08-13
WILSON NOT DISQUALIFIED
QUESTION OF ELIGIBILIT Y
PASSED ON BY COUNSEL
MELVIN
Under the Law aud the Facts. He Finds
Third Ward Alderman Entitled
"a @eaf

| Alderman elect from the Third ward,
IN the following comprehensive and
we'll considered legal opinion:
To the Mayor. Counsellor AM Al.
dermsn ~ the city of Annapolis.
"asnntIemen-In regard 10 thk queg-
tlon of the eligibility of Mr. Jesse
Wilson 10 a seat IN this body as an
Alderman from the Third ward, which
question was on July ~ last referred
to me for a legal opinion. 1 beg to
report A. follows:
MIR. Wilson having been declared
~ this body duly elected to member
ship I'm it. the Mayor refused to adj
minister the oath of office to him on
the ground that BE Is Ineligible 10
serve as q member of the municipal
corporation because of the fact, ~
alleged, that be now holds aeiyii Office
auder the United States. II Mr.. VIII
son does, in fact, hold civil Office
under tine United States be is not
eligible to serve in the City Council,
for according to Section II Of our City
Charter the qualifications for mem
bers Of the Corporation Of Annapolis
are the same as for delegates in the
General Assembly, and Section 10 Of
Article : ~ the Constitution Of Mary
kAUN pfE5GGNDfb fBAb
No member Of Congress or
person holding any civil or
military office under the Uni
ted states shall be eligible as
a Senator or Delegate.
'.The solo question presented. there
fore, IN the proent inquiry Is whether
or not Mr.. Wilson holds civil or
military office under the United
: a IL k..w a -
upon the legal definition Of what
constitutes an office.
MIR. Wilson's status, as regards
the facts which facts were given me
BY the authorities at the Naval Acad-
cmy-is as follows: lie is what Is
termed leading man painter NJ the
Naval Academy lbeing a grade slight
~ lower than that designated rs fore
man and is appointed by the Secre-
tarv Of the Navy upon the recommen-
dation Of the Superintendent of the
Naval Academy, before whom nc takes
the oath prescribed for all persons ap-
pointed by the Secretary Of the Navy,
from the lowcst employees, such as
scrubbers and blackboard cleaners nj
500 4 year, 10 the highest appointee.
Ills duties arc prescribed by The ap-
pointing power and consist in the
performance Of manual labor as boss
painter. Tie position which Mr..
Wilson holds Is not created by the
Federal Constitution, nor BY any Act
Of Congress and has no place or dcsig-
nation in the established law of the
United States. lie is paid by the day
$780,
I'm tho discretion Of the Secretary
Of the Navy tho position itself could
be summarily abolished at any time
aud Mr. Wilson, of course, dropped,
and as the situation stands now, Mr..
Wilson is liable 10 SUMMARY dignis-
sal at any time. IN other words, the
tenure Of his position is Indefinite,
uncertain and transient and depends
entirely upon tho viii Of the appoint
ing power. inasmucb as Mr. Wilson
Is not under civil service nor Is the
position 0f leading man painter IN
any way - part Of what is known
a. the classified service Of the United
States. Furthermore, no sovereign
powers whatever attach to this posi-
ti0u and sir. Wilson has no authority
except that expressly given him by
the officials under whom be- works,
acting for the Secretary of the Navy,
aud this authority can be curtailcd or
taken away entirely At any time.
While Afr. Wilson's recommendations
as to the employment or discharge Of
men under him are generally accepted
by his supcriors they are by no means
binding and may be- altogether disre-
gaTded.
The attributes. then. of SIR. Wilson's =
p0sfti0n are briefly as follows.
II. Not created by the C0nstitu-
tifsu nor by any Act of Congress nor
the incumbent appointed in a manner
prescribed by iaw nor with q desig-
nation or title given by law, but a
position existing in the discretion Of
the Secretary Of the Navy by whom
the duties and compensation Of the
position are prescribed.
2. The tenure Of the position Is in
definite. uncertain aud transient,
the incumbent subject 10 discharge At
any time aud the position itself liable
20 be summariiy abolished in the dis.
crefion of the Secretary Of the Navy.
-. The position carries with II no
sovereign powers or delegation Of au-
thority but the incumbent Is at all
times aud in all things subject to the
orders Of his appointing power.
I'm this state Of facts, the question
becomes Docs Mr.. Wilson hold any
office under the United States, or is
he merely an employee or laborer in
the Government serviceg If he is sim
ply an employee he Is not disguali-
fed under our city Charter and state
Constitution 10 serve as member Of
the & ify Council OF Annapolis.
The law on this subject is all 50
plain aud unanimous in case like
this as 10 leave no room for doubt
that Mr. Wilson Is not an Office
holder under the United States in tho
sense in which that word IS used in the
Constitution. IS Is laid down in
Mechem on Public officers para
graph 4):
.sTbe most important char
acseristic which distinguishes
an Office from an employment
or contract is that the creation
Of an Office involves dele
CATION 10 the individual Of
some Of the sovereign func-
tIoDs Of government, To be ex-
erciscd by him for the benefit
Of the public. Tn
less the powers conferred are
Of this nature. the individ-
nal is not a public officer.
The test Is that be should ex-
ercise something that can
al So ~a4fnT q rf