Jump v. Spence

Alvey, J.,

delivered the opinion of this Court.

Without discussing all the several grounds assigned by the appellant why the mandamus should not issue in this ease, we shall state briefly some of the reasons that lead us to the conclusion that the writ was erroneously ordered by the Court below.

There is no doubt but that the judgment of the House of Delegates, in the contest between the appellee and Mr. Franklin, conclusively established the right of the former to the office of Judge of the twelfth Judicial Circuit, by virtue of the election held on the 7th of November, 1865.

But while this is conceded, it does not follow that the appellee is entitled to the salary of the office for the time intervening between the 29th of November, 1865, the day on which Mr. Franklin qualified under the commission issued to him by the Governor, upon the returns of the election, and the 14th of February, 1866, the day of the appellee’s qualification under the commission issued to him by the Governor, after the determination of the contest by the House of Delegates.

The provisions of the Constitution of 1864, under which the election took place, having immediate reference to the question under consideration, are found in sec. 7 of Art. 1, and sec. 28 of Art. 4.

By the last mentioned section, it was provided that the annual salary of the Circuit Judge should be $2500, payable quarterly, and should “ not be increased or diminished during Ms continuance in office.”

By the first mentioned section, it was declared that, “ Every person elected or appointed to any office of trust or profit under this Constitution, or under the laws made pursuant thereto, before he shall enter upon the duties of such office, shall take and subscribe ” the oath or affirmation, the form of which was prescribed.

"We think it clear from the section just cited, notwithstanding the language employed in sec. 3 of Art. 4, in regard to *10 the term for which the party should hold, that the appellee could not he considered as in office, though elected in November, 1865, until he qualified, after receiving a commission, by taking the oath prescribed by this 7th section of the 1st Art. of the Constitution. The whole instrument must be taken together, and so construed as to render its different parts consistent.

In our theory of government the office is not supposed to be created for the benefit of the individual who may be elected to fill it, but for the good of the people, to be derived from the actual and faithful exercise of its functions; and hence it has been well said that, by a common sense interpretation of the Constitution, we could not do otherwise than conclude it to be the purpose of its framers “ to make no gratuities, but to pay for services actually rendered, and that no one under it is authorised to claim a salary attached to an office, until he has accepted it, and qualified himself by taking the prescribed oath.” That was said in the case of Thomas vs. Owens, 4 Md. Rep., 220 , where a question of the same character as the present, arising under the Constitution of 1851, was considered, and the decision in that case we regard as conclusive of the one now before us.

The issuing of the commission, and the taking of the prescribed oath by the party, are conditions precedent to the complete investiture of the office, and no person can lawfully assume the responsibilities or exercise the functions of Judge, until they are complied with; and these conditions not having been complied with in this case, before the time for which the salary is claimed, we think it clear that the appellee can make no rightful claim to such salary..

It is urged, however, as an exception to the general rule, that as the appellee wras, from the time of the election to the time of his actual qualification, on the 14th of February, 1866, ready and willing to qualify and assume the duties of the office, but was prevented from so doing by the acts of others, and not by any act of his own, he was, therefore upon qualification, *11 entitled to the salary accruing for the time he was kept out of office. That, by operation of law, his subsequent commission and qualification related back, and entitled him to pay, for the intermediate period. This proposition we regard as wholly inconsistent with the plain intents and purposes of the Constitution. Moreover, the same proposition was made, and refuted, in the case already referred to, of Thomas vs. Owens, and the dictum in the case of Marbury vs. Madison, 1 Cranch, 151 , quoted as an authority for the position, was disapproved.

(Decided 17th December, 1867.)

As to the other position assumed by the appellee as ground for his claim, that because he was in office at the time of the election, and by the Constitution was continued as Judge until the expiration of the term for which ho was originally elected, and until his sticeessor should be elected and qualified, we agree with the conclusion to which the Special Judge in the Court below arrived in deciding this case. We think the appellee could not have continued to hold the office after the commission and qualification of Mr. Franklin, and that he was not in a position to resume it until after the contest was decided by the House of Delegates, and he was commissioned by the Governor, and had qualified as required by the Constitution.

Differing from the Court below as to the right of the appellee, we reverse the order granting the mandamus.

Order reversed,.