Archer v. State

State Treasurer — Liability of Official bond — Evidence—Remand, for New trial — Sec. 20 of Art. 5 of the Code — Oonclusiveness of Judgment. Section 1 of Article 6 of the Constitution provides that the State Treasurer shall be appointed by the two Houses, at each regular-session of the Legislature, and that the term of his office shall be for two years, and until his successor shall qualify; and by the same section he is required to take the oath and give the bond prescribed by law. JBy section 6 of Article 1 of the Constitution and section 2 of Article 95 of the Code, he cannot enter upon the duties of the office until he ha.s taken the oath and given the bond. A. was elected Treasurer od the 28th of January, 1886, and duly qualified. On the 13th of January, 1888, he was again elected, but did not take the oath of office or give another bond until the 18th of November, 1889. Held: That the first bond was responsible for all defalcations committed by A. prior to the time when the second bond was given. Of a lot of bonds purchased by the Treasurer, thirteen were missing when his defalcations were discovered. The State showed that nine were converted after the second bond was given. Held: v That the fact that nine of the missing bonds were converted after the second bond was given, had no tendency to prove that the other four were converted prior to that date, and was inadmissible as evidence for that purpose. Section 20 of Article 5 of the Code, which enacts that “in all cases where judgments shall be reversed or affirmed by the Court of Appeals, and it shall appear to the Court that a new trial ought to be had, such .new trial shall be awarded,” does not authorize the Court to revise and correct the verdict of a jury which the trial Court has permitted to stand, having refused to grant a new trial; and whether “a new trial ought to he had” in any given case must he determined by the rules and principles of law, and in accordance with the facts of the case under consideration. The State sued on the bond of its Treasurer, given when he was first appointed, to recover for certain specified defalcations, and obtained a verdict in its favor, and a judgment entered thereon was affirmed by the Court of Appeals. The State afterwards moved that the case be remanded to the lower Court for a new trial to enable it to establish the liability of the sureties on the first bond for defalcations which occurred during the Treasurer’s second term, the Court of Appeals having decided that -his second bond was void, and that 'the sureties on his first bond were liable for all defalcations occurring during his second term. Held: That the motion should not prevail, as the judgment against the sureties on the first bond was conclusive as to all matters of liability which could have been litigated in that suit.

Cross-Appeals from the Circuit Court for Baltimore County. The case is stated in the opinion of the Court. Plaintiff’s Exception stated in the opinion of the Court. Defendants’ Exception. — At the trial of this case the defendants offered the two following prayers: 1. It being admitted by the pleadings that Stevenson Archer was, on the twenty-eighth day of January, 1886, duly appointed by the two houses of the Legislature of Maryland, at its regular session', on joint ballot, for the term of two years, and until his successor should qualify, and that said Archer accepted said appointment, and duly qualified by taking and subscribing before the Governor the official oath prescribed by the Constitution, and by filing his bond, which was duly approved by the Governor, dated the second day of February,. 1886, which is the bond sued on in this case, and that on the 13th day of January, 1888, the said Stevenson Archer was reappointed by the two houses of the Legislature, at its regular session, on joint ballot, for a further term of two years, and until his successor should qualify, and that thereafter, without any further appointment or attempt to appoint, the said Stevenson Archer continued to exercise the powers and functions of the office of Treasurer, under his said appointment of 1886, without taking the oath of office prescribed by the Constitution, and without filing any official bond under his said appointment of 1888, until November 18th, 1889, on which day he took the oath of office prescribed by the Constitution, and filed a bond, which was approved by the G-overmor. Now the jury is instructed that the defendants are not liable in this action for any default of the said. Archer, as Treasurer of said State, occurring subsequently to the 13th of February, 1888. 2. It appearing by the pleadings that at a regular session of the Legislature, the two houses thereof, on joint ballot, on the 28th day of January, 1886, appointed Stevenson Archer, Treasurer of the State of Maryland, for a full term, and that said Archer qualified by taking the oath of office and giving an official bond, which bond is the bond in the declaration mentioned; and further, that at another regular session of the Legislature, on the 13th day of January, 1888, the two houses thereof, on joint ballot, appointed said Archer to another full term as Treasurer of said State, and that subsequently to said second appointment no other appointment of a Treasurer of said State was made or attempted to he made until at a regular session of said Legislature, on the 9th day of January in the year 1890, the two houses thereof, on joint ballot, appointed said Archer Treasurer of said State for another full term; and further, that the regular session of the Legislature of 1888, Avas finally adjourned on the 2nd day of April in the year 1888; the jury is instructed that the defendants are not liable in this action for any default of the said Archer as Treasurer of said State occurring subsequently to the 2nd day of April in the year 1888. The Court (Fowler, C. J., and Burke, A. J.,) refused to grant these prayers, and the defendants excepted. The jury rendered a verdict for $60,000 in favor of the plaintiff, and judgment was entered thereon. Both sides appealed. The cause was argued before Alvey, O. J., Miller, Irving, Bryan, McSherry, and Briscoe, J. The bond in suit being a contract, the extent of the liability of the sureties is governed by the intention of the parties thereto, obligors and obligee, at the time of its execution. The question always is, what was within the mutual contemplation of the parties ? When a bond is given for a term of office, if the duration of the term of office is not set forth in the recitals of the bond, and is fixed by law, the law fixing the term of office, 'is read with the bond as part of the contract. It has been settled by a long line of authorities that where the law fixes a definite term of office, then the bond given, though it contain very general words, is- confined to that definite time. If, therefore, the language of the Constitution had been — “The term of office of the Treasurer shall he for two years,” there can he no doubt hut that the liability of the sureties would he confined to that definite time, and would not embrace any defalcation thereafter. And it is not understood that this proposition is seriously controverted by the State. Mechem on Public Offices and Officers, sec. 206; Lord Arlington vs. Merriclce, 2 Wm. Saund., 403, 413; Leadley vs. Evans, 2 Bing., 32; Liverpool Water WorJcs Co. vs. Atlcinson, 6 East, 507; Pearsall vs. Summersett, 4 Taunt., 593, Hassell vs. Long, 2 M. & 8., 363; Wardens, dec. vs. BostocJc, 2 Hew Pep., 175; Peppinvs. Gooper, 2 B. &. Aid., 431; Bamford vs. lies, 3 Enoch. Rep., 380; Kit-son vs. Julian, 4 El. & Bl., 854; Union Bank of Maryland vs. Ridgely, 1 H. & G., 433. It is contended by the State that though the liability of the sureties would be restricted to the two years, if the words of the Constitution were — “the term of the Treasurer shall be for two years;” — when the other words are considered, “ and until his successor shall qualify ”— the rule is different, for by force of these words the term of office is prolonged to the actual qualification of a successor. The bond according to this contention, was given by the sureties to cover the acts of Archer from the time of his appointment and qualification to the time of the actual qualification of his successor. The defendants contend that the presence of these words in the Constitution makes no difference in the rule restricting the liability already stated. It is well settled in this State that where a definite term of office is fixed, the office does not become vacant upon the failure, for any cause, to elect or appoint a successor. The old incumbent holds over not merely as an official de facto, hut as an officer de jure with full authority legally to exercise the functions and duties of the office. This rule is based upon the dictate of a sound public policy, and is not dependent upon the existence of any words such as “and until his successor shall qualify,” but is uniformly applied iii cases where the law regulating the term of office does not contain such words. This expression is therefore merely declaratory of the common understanding, and is always implied when not expressed. Archer would have held over de jure if the language of the Constitution had been — “The term of tlie Treasurer shall be for two years" — precisely in the same way and to the same effect as he does with the superadded words, “and until his successor shall qualify." If these words are merely declaratory, if they are always implied, if the officer holding over holds de jure, whether the words are in the law or not, how can the expression of these words work a change in the rule of law restricting the liability of sureties already stated. Thomas vs. Otvens, 4 Md., 221; Sappington’s Adm’r vs. Scott, 14 Md., 53-6; Marshall vs. Harwood, 5 Md., 432; Smoot vs. Somerville, 59 Md., 88; i?o5& vs. Garter, 65 Md., 333-336. The language of the Constitution is express — “ and a Treasurer to be appointed by the two houses of the Legislature at each regular session thereof.” The Legislature, at least the greater part of it, is elected every two years, and the manifest intention of the Constitution is that every two years a Treasurer shall be appointed hy a Legislature fresh from the people. When this provision is-read in connection with the other provision — “the term of office of the Treasurer shall be for two years and until his successor shall qualify " — it is evident that the Constitution contemplates a biennial term. The term of office being definite, and distinguished from the time during which the incumbent may lawfully hold, Mr. Archer, after the 13th of February, 1888, or after the adjournment of the Legislature, whilst legally holding office, upon grounds of public policy, was holding into the next biennial term, the term of 1888-90. Therefore, if removed in January, 1889, his successor would hold for the unexpired balance of this biennial term of 1888-90, until the regular session of the Legislature in 1890. Stale vs. Stonesireet, 99 Missouri, 361. “It is usually provided by law that officers elected or appointed for a fixed term, shall hold not only for that term, but until their successors are elected and qualified." “Where this provision is found the office does not become vacant upon the expiration of the term, but the present incumbent will hold over until his successor is elected and qualified, even though it be beyond the term fixed by law.” Mechem on Public Offices and Officers, sec. 397. “The expression, ‘term of office,’ uniformly designates a fixed and definite period'of time.”- State vs. Stonestreet, 99 Mo., 372; Speed & Worthington vs. Oratoford, 3 Metcf., Ky., 213; Parmater vs. State, 102 Ind., 95; Mechem on Public Offices and Officers, sec. 385; Baker vs. Kirk, 33 Ind., 523; Haight vs. Love, 39 N. J. Law, 499-80. In a case where the officer was to hold office for a definite time, and until his successor was elected and qualified, and there was a failure to elect and qualify, Mr. Justice Brewer thus describes the “holding over” period: “He may, it is true, be continued in office, as the statute has provided for preventing a vacancy between the close of one term and the election and qualification of a successor, but he is simply filling part of his successor’s term.” Brewer, J., now Justice of the Supreme Court of the- U. S., in Riddel vs. School District, 15 Kan., 170. In a similar case it was held that the party holding over, held 'into the next term, and his successor, when appointed, held for the balance of the unexpired term, into which the old incumbent had held over. Parcel vs. State, 110 Indiana, 122. The bond being a contract, the liability of the sureties is determined by the intention of the parties at the time of its execution. The question always is, what Was within the mutual contemplation of the parties ? It is to be remembered that the Constitution provides for the appointment of a Treasurer at every regular session of the Legislature, that his qualification must follow within one month after the appointment, .and that on failure to qualify, the appointee is to be regarded as having refused the office, and a new appointment must be made by the Legislature. The State practically says ■to the bondsmen, — you sign this bond, and at the next Legislature you will be relieved by the appointment and qualification of a successor. When the next session of the Legislature arrives, an •appointment is made, but the appointee does not qualify within the one month thereafter, and it thereupon became the duty of the Legislature to make another appointment, which duty they failed to perform. The question therefore is, did the State on- the one hand, and the bondsmen on the other, contemplate or take into -consideration as part of their contract the violation by the Governor and the Legislature, of their constitutional -obligations? The Union Bank of Maryland vs. Bidgely, 1 H. (É O., 324, was a case in which a cashier was appointed for a definite time, and held over by reason of an extension of the time being brought about by perfectly legal means. The Legislature had a right to extend the charter, and this right was well known to the parties, and in addition to that, looking to the nature of the corporation, it was extremely probable that such an extension would be sought and granted. And yet the Court held that the contract liability of the sureties could not be extended. A fortiori the contract of the sureties cannot be extended when the extension of the time of the officer's holding of the office is brought about by illegal means, by the violation of the Constitution of the State. Again, the Court assign as a reason for limiting the liability of the sureties in that case, the impossibility of the corporation to appoint the officer for a time exceeding the legal existence of a corporation. So, in this case, it was likewise impossible for the Legislature to appoint Archer for a greater period than two years. An appointment for three or four years would have been void. The term two years does not mean two calendar years, but rather two legislative years, from one regular session of the Legislature to the other. “At every regular session of the Legislature, a Treasurer shall be appointed. Some reasonable time must be given, however, after the appointment, for a qualification. This reasonable period is fixed by the Constitution at one month. If the appointee neglects to qualify within this time, there is time given to appoint some one in his place. This time is also limited by the Constitution to the regular session of the Legislature. In case the Legislature makes no attempt to appoint, however, the “holding over period” dates from the expiration of the one month allowed for qualification. This reasonable time for qualification is the only additional time, beyond the term of ofific.e, for which the sureties may be held, the Legislature having made no further effort to appoint; and this is the time, according, to the great current of authority which is designated by the expression, “and until his successor shall qualify. ” Mayor, &c., of Rahtoay vs. Croioell, 11 Vroom, 211 ; Chelmsford Company vs. Bemarest, 7 Cray, 1; City Council of Montgomery vs. Hughes, 65 Ala., 20 ; County of Wap>pello vs. Bigham, 10 Iowa, 39; Kingston Mutual Ins. Co. vs-. Clark, 33 Barb., 196; Harris vs. Rabbit, 4 Billon, 185 ; Bover vs. Ttoombly, 42 N. H, 59 ; Welch vs. Seymour28 Conn., 387 ; State vs. Mann,P>4 Vt., 377-9 ; Mayor, &c., of Wilmington vs. Horn, 2 Harrington, 190 ; Riddel vs. School Bistrict, 15- Kan., 168; Mutual Loan and Build. Asso. vs. Price, 16 Fla., 204 ; County of Scott vs. Ring, 29 Minn., 398-405 ; State vs. Powell, 40 La., Ann., 241 ; Bigelow vs. Bridge, 8 Mass., 275; Citizens’ Loan Asso. vs. Nugent, 11 Vroom, 215; Mechem on Pub. Offices and Officers, sec. 286 ; Murfree on Official Bonds, secs. 620-625. And in the States in which these decisions occur limiting the liability of the bonds, the officers were.held to hold over dejure. Stilsing vs. Davis, 45 N. J. L., 390 ; Hubbard vs. Crawford, 19 Kan., 570 ; Chandler vs. Bradish, 23 Vt., 416 ; McCall vs. Byram, 6 Conn., 428 ; Overseers of the Poor of Boston vs. Sears, 22 Pick., 122 ; It was argued in the Court below that the defendants could take no advantage of the negligence of the Governor and Legislature in failing to appoint a successor to Archer upon his neglect to qualify, upon the ground that sureties on official bonds are not discharged by the laches of government officials. The defendants do not deny the principle. It is well settled. But they deny its, application to this case. The defendants do not contend that they are discharged from any liabilities, which they have assumed, but that they have not assumed the liabilities at all for this holding over period. These liabilities can only exist by reason of the extension of the time of holding the office on account of the negligence of the public authorities, -and this negligence, the defendants claim, cannot create the liability ; and so the cases decide. The constitutional term of the State Treasurer is for two years, “and until his successor shall qualify.” Before entering upon the duties of his office he is required to take and subscribe the prescribed' oath of office before the Governor, and to file a bond in the penalty of $200,000, with sureties approved by the Governor. The qualification, therefore, consists in taking and subscribing such oath, and in filing such bond. Mr. Archer did thus qualify for the first term on February°2nd, 1886, and consequently, by the express language of the Constitution, was entitled to hold the office upon which he then entered under such qualification, until the election and qualification of his successor. The sureties on his official bond must be conclusively' presumed to have known and understood this constitutional provision, and to have intended to become hound for the faithful discharge of his official duties for the whole duration of his official term, no matter what such duration might be. Indeed the bond is to be expounded as if it contained the provisions of the Constitution, set out in terms as the express and clearly defined contract .of the parties. They must be conclusively held to have known that while ordinarily his successor might be expected to qualify within one month after his election, and so put an end to the term of their principal, and at the same moment to their liability under their bond for him, it was quite possible that his successor might not qualify within such time, and that consequently their principal might hold over for a further period, and that their liability as his sureties might thus be continued for such further period, according to the plain meaning of their contract, distinctly and palpably within its terms, and within what must be imputed to them as their understanding when they signed and delivered it. The provision in the Constitution that the term of the Treasurer should last for two years “and until his successor shall qualify,” was inserted to prevent the possibility of a vacancy and interregnum. It presupposed the possibility that the constitutional machinery might not always run with - perfect exactness and regularity— that newly-elected officers might fail to qualify — that incumbents might decline to vacate — that contingencies might happen whereby an official who ought to retire in favor of his successor might contest the right of his successor to the office, and might in consequeii&e of such dispute hold on to his office until such contest could be settled- — and that an official elected as his own successor might neglect to put an end to his existing term by qualifying under Iris second appointment and entering upon a new term. All these probabilities were in the minds of the framers of the Constitution when the clause in question was inserted, for it was a well-known part of the judicial history of the State, that controversies involving the rights of officials under similar circumstances had taken place. The protracted contest over the State Library, between Marshall and Harwood, which engaged the attention of this Court four times (5 Md., 423 ; 7 Md., 466 ; 9 Md., 83 ; 10 Md., 451), and the struggle of Mr. A. Lingan Jarrett to obtain possession of the office of Comptroller (17 Md., 309), were well remembered — and it was to avoid as far as possible the recurrence of such difficulties, that careful provision was made that in addition to the specific time for which the officer was to hold his office, there should be a superadded time, as much a part of his constitutional term as the specific time, covered by the significant words “and until his successor shall qualify,” during which he should also hold his office. There was to he no distinction as to the powers, duties, functions and responsibilities of the Treasurer during any part of this entire period — there was to be no vacancy if the newly-elected incumbent failed to qualify, for the old official was to hold, until his successor should qualify. And he was to hold, not as a mere officer de facto — not as a temporary locum tenens — not as an intruder — not as an incumbent in upon sufferance — but as a constitutional officer, lawfully exercising all his constitutional powers, and charged with the performance of all his constitutional duties. His sureties °contracted with reference to this clear provision of the Constitution — distinctly declared as a well-established principle in the constitutional history of our State, in the well-considered case of Thomas vs. Owens, 4 Md., 221. and reaffirmed with emphasis in the then recently decided case of Smoot vs. Somerville, 59 Md., 86. There is no one of the sureties who did not in point of fact know and understand this to he a cardinal principle of our organic law, and if it can be supposed that any one of them was ignorant of the express letter and clear meaning of the Constitution in this particular, such ignorance of this fundamental doctrine cannot be permitted to be pleaded. Starting, therefore, with the concession that the sureties knew that the constitutional term of Mr. Archer as Treasurer was for two years, and for such further period as might elapse until his successor should qualify, and that when they became his sureties they intended to become bound for the faithful performance of his constitutional duties during his constitutional term, no matter how long that might continue, it requires some boldness, or some peculiar ingenuity of intellect. to formulate the proposition that while after the 13th of February, 1888, and down to the time of his qualification under his second appointment, he was a de jure Treasurer, he was such de jure officer during that period without bond for the faithful discharge of his duties as such. He could not be a de jure officer without a bond. The giving of an approved bond was a condition precedent to his entering upon the duties of his office, and when he once gave bond and took upon himself the powers and responsibilities of his office, the bond lived on with him as an indispensable condition — an inseparable concomitant of his official life. It started with him when he began. He could not begin without it. It continued on as long as he held on to the office. He could not lawfully hold on without it, and it came to an end when his term came to'An end and not until then. When we fix the duration of his constitutional term, we fix at the same time and by the same decision, the duration of the liability of his bond. And the contention that his bond came to a sudden end on the 13th of February, 1888, while he himself lawfully continued thereafter to be Treasurer under the appointment and for the term which the bond when given was designed to apply to and cover, is necessarily and intrinsically illogical and irrational — contrary to the express language of the Constitution and directly repugnant to what the sureties must be presumed to have intended when they entered into their obligation. They may indeed have supposed that within one month after the election of his successor, such successor, whether Mr. Archer himself, or some other person, would probably qualify, and that his constitutional term would thereupon come to an immediate end. But the provision in the Constitution (Article 6, section 5), which directs that ‘‘the Treasurer shall qualify within one month after his appointment by the Legislature,” is an injunction applicable to and operative upon the newly-elected Treasurer, and not a limitation uj)on the duration of the term of the existing incumbent. The latter is to continue to hold until the former shall qualify, and hence whether the provision above quoted be regarded as directory or as mandatory, is wholly immaterial in this discussion. This is made perfectly plain by supposing that the Legislature, instead of re-electing Mr. Archer on January 13th, 1888, had elected some other person, and that other person had omitted to qualify until November 18th, 1889. Mr. Archer would have lawfully held over until such qualification of his successor ; and thus holding over as a constitutional officer for a legal term which ran on until put an end to by such qualification, his sureties' would have continued to be liable for his official acts during such holding over, as well as during the period before the election of his successor. The obligation of the sureties, in other words, would be and is co-extensive with the official life of their principal, beginning when he stepped into office and ending only when he stepped down and out. The fact that he was elected as his own successor cannot change the aspect of this plain proposition, though some confusion of-thought is likely to he occasioned by the failure to deal with the question at issue, as if instead, of having been re-elected, some other individual had been appointed as his successor — and the liability of the-sureties is to he considered as if a new incumbent had been appointed. This liability, then, is to be determined by giving to-the words- of their bond their plain and natural meaning —and the provisions of the Constitution enter into and form a part of it, as fully to all intents and purposes as-if they had been embodied in it at length. Indeed, we are to read it as if it ran'as follows : “Whereas the above bounden Stevenson Archer has-been duly appointed Treasurer of Maryland in pursuance of the Constitution, for the full period of two years and for such further period thereafter as shall elapse until his successor shall he duly elected and shall qualify, “Now the condition of the aforegoing obligation is sucfi, that if during said specific period of two years and during such further period thereafter as shall elapse until his successor shall qualify, the said Stevenson Archer shall well and truly execute, discharge and perform the duties of the said office of Treasurer in all things appertaining thereto, then this obligation shall he void ¿ otherwise to he in full force and virtue in law.” Thus stating the contract — thus expressing, in words what is necessarily implied, as fully as if expressed, all difficulty disappears. The bond is liable from the time it was approved, on Eebruary 2nd, 1886, down to -the time when Mr. Archer, as his own successor, terminated his first term, by qualifying under his second appointment. Any other construction would dislocate his term, and divide it into two segments, the one being for the period during which he lawfully held de jure as a bonded officer — the other being for the residue of the period during which he also lawfully held de jure as an officer without bond. Such a division of his term cannot be the true view of the Constitittion. The pleadings and proof show that on Roveihber 18, 1889, he appeared before the Governor, took and subscribed the prescribed oath of office, and tendered a new bond in the penalty of $200,000, with sureties — which bond was duly approved by the Governor, and deposited with the clerk of the Court of Appeals to he recorded. The fact, therefore, being that he actually qualified on that day under his second appointment; that he intended this to he a valid and effectual qualification ; that it was designed and accepted also by the Governor as a legal and sufficient qualification, the plaintiff, in its replications, following in the line of the statement in the first plea of defendants .as to such actual and intentional qualification on that day, adopted that day as the time when the liability of the first bond terminated. Looking to well settled Maryland adjudications construing our own Constitution and defining our State policy, the opinion of the Court below upon the defendants’ demurrer and prayers, is impregnable. While we have no disposition to deny that authorities can he found sustaining a different view from that which we must regard as established Maryland law, we can well claim that authorities quite as weighty and cogent as any that can he cited against us, strongly, clearly and distinctly affirm what we may well call the Maryland doctrine. Tuley vs. State, 1 Ind., 502 ; Akers vs. State, 8 Ind., 484 ; Butler vs. State, 20 Ind., 113 ; State vs. Berg, et al., 50 Ind., 496; State vs. Kurtzeborn, 18 Mo., 99; City of Fond du Lac vs. Moore, 58 Wis., 170 ; Supervisors of Omro vs. Kaime, 39 Wis., 468; Dunphy vs. Whipple, 25 Mich., 10, Placer Co. vs. Dickerson, 45 Cal., 12; Chairman of Common Schools vs. Daniel, 6 Jones, (Law), 444; Sparks vs. Farmers’ Bank, 9 Am. Law. Beg., {N. S.) 365; Thompson vs. State, 37 Miss., 527; South Carolina Society vs. Johnson, 1 McCord, 44 ; Murfree on Official Bonds, sec. 225. Bryan, J., delivered the opinion of the Court. Stevenson Archer was elected Treasurer of Maryland on the twenty-eighth day of January, 1886, and was duly qualified by taking the oath of office, and giving the required bond. He was elected again on the thirteenth day of January, 1888 ; but did not again take the oath of office, or give another bond until November the eighteenth, 1889. Between the time of his qualification in 1886, and the eighteenth of November, 1889, he embezzled sundry bonds and sums of money belonging to the State, which were in his possession as Treasurer.' The State brought suit on the bond given in 1886, and sought to recover for the full amount of embezzlements which were committed between the time when this bond was given and approved, and the eighteenth day of November, 1889, when the second bond was given, and the second oath of office was taken. The question was presented in a variety of modes in the pleadings, and by prayers for the instruction of the jury. It is sufficient for us to determine the extent of the liability of the bond, without adverting to the form in which the question arises. The first section of the sixth Article of the Constitution provides that the Treasurer shall be appointed by the two Houses, at each regular session of the Legislature, and that the term of his office shall be for two years and until his successor shall qualify. By the same section he is required to take the oath and give the bond prescribed by law ; and by the sixth section of the first Article of the Constitution and the second section of the ninety-fifth Article of the Public General Laws, he could not enter upon the duties of the office until he had taken the oath and given the bond. They were preliminary steps indispensably necessary to his possession of the office. Tbe bond, now to be considered, pursues the directions of the statute. It is on the condition that Archer shall well and faithfully discharge, execute and perform all and singular the duties required of him by the Constitution and laws, as Treasurer of' the State of Maryland, in all things appertaining to his office. It must be assumed that he was thus bound for the discharge of his duties for the full term on which he was about to enter, but no longer. On this point there is a general agreement among the authorities. The question certainly must be considered as settled in this State by the decision in State vs. Wayman, 2 Gill & J., 254. The length of the term of office seems to be accurately defined by the words of the Constitution. They are neither obscure nor ambiguous ; they declare that the Treasurer’s term is for two years, and until his successor shall qualify. It must be for two years at the least, and is still further to continue until the occurrence of a distinct, definite and unequivocal event. The term begins when the Treasurer qualifies, and it expires when his successor qualifies. The beginning is fixed and the end is fixed ; the demarcation of its limits seems to be sufficiently clear. It is not difficult to see the purpose of the framers of the Constitution. It was considered necessary that there should always be a public officer in existence competent to take charge of the treasury, and that his fidelity should at all times be secured, as far as possible, by a stringent oath, and by a bond embracing every detail of his duties. Without these guaranties no Treasurer was permitted to enter upon the duties of his office. And there was to he no interval when his oath and bond were not pledged for his official integrity. The statute law added still further to the security of the public funds by providing that the Treasurer should not remain in office if his bond should become invalid or insufficient. By the sixth section of Article ninety-five of the Public General Laws it is made the duty of the Governor in such an event to require him to give a new bond with approved security ; and in case of his failure to do so, he is to be removed from office by the Governor and a successor is to be forthwith appointed in his place. No one can fail to see the extreme and. sedulous care with which the Constitution and laws have endeavored to guard the public money. It cannot be rationally conjectured that it was their purpose to leave the treasury for any single moment without the protection of an oath and a bond. The plain and obvious meaning of their words shows the contrary intention. And it is manifest that if the bond did not cover the whole of the Treasurer’s term, the protection would be entirely inadequate. If there were one month, or one week, or one day in which a Treasurer might embezzle with impunity, great damage might ensue without possibility of redress. The bond covers the whole term ; the term extends until the qualification of the successor ; and we are unable to discover any mode of ratiocination which would withdraw any portion of this term from the Operation of the bond. Unquestionably the Treasurer is bound to be faithful in the performance of his duties at all times without intermission while he is in office. There is no moment when the obligation of duty does not rest upon him. For a long succession of years previously to the adoption of the present Constitution, there had been controversies about the duration of terms of office; and the responsibility imposed by official bonds frequently depended on the deter-initiation of these questions. In Wayman’s Case, 2 Gill Johnson, a Eegister in chancery continued in possession of the office for five years without receiving a renewal of his original appointment. It was held that the tenure of his office under the then existing Constitution was limited to one year ; and that after the expiration of that time, he was not legally an incumbent of the office, and that his official bond was not any longer responsible for his acts and omissions. . The inconveniences of such a tenure of office are manifest. They are now happily in a great measure removed. To speak only of the office of Treasurer, we can see a progressive change in the provisions of the successive Constitutions relative to it. In the Constitution of 1851, it was merely directed that he should be “appointed by the two Houses of the Legislature at each session thereof. ” This would make his term about two years. The Constitution of 1864, after stating that he should be elected at each regular session of the Legislature, in express ivords declared that he should hold his office for two years. Nothing was said in either of these Constitutions about an extension of the term of office. But. in our present Constitution, an important addition was made to the words which deserihed the term of office. Thenceforth it was to endure until the qualification of a successor. We cannot shut our eyes to the importance of this change, nor to the public interest involved in it. We have been referred by the learned counsel who argued this cause with such remarkable ingenuity and ability, to many decisions, where words similar to those in our Constitution have been construed by learned Courts. In some of them a construction has been given agreeing with the one which we have stated ; and in others an opposite result has been reached. We give full recognition to the weight of these authorities ; and we have no disposition to criticize them, or to evade their application under appropriate circumstances. But our own law on this question is in a measure historical. The constitutional provision was the result of public necessity, and was prompted bjr the recollection of many a weary controversy in which justice had been defeated. It was an effort to remedy some of the evils which experience had disclosed. Having this knowledge, it is our duty to give full effect to the intention of the framers, in the spirit in which it was conceived. This suit is brought to recover the amount of all defalcations committed previously to the eighteenth of November, 1889. In our opinion the bond is responsible for them ; but we do not at present consider whether the liability extends to a later date. . The effect of taking the oath and giving the bond on that day, we are not now called upon to determine. This question is presented in another case which has been argued before us, and it will be decided at the proper time. In this case both parties have appealed to this Court. In what rve have said we have disposed of the defendants' appeal, and have sustained the ruling of the Court beloAv. The State took a bill of exception which presents a question of evidence. It had been shown that Archer had purchased for the State one hundred and forty Baltimore and Ohio Railroad Company Car Trust bonds of the denomination of a thousand dollars each, and that between January, T889, and October the thirtieth, 1889, he had fraudulently appropriated to his own use twenty-four of these bonds. Trvelve of them had been redeemed and the proceeds duly accounted for by Archer ; ninety-one of them had been found by a committee Avho examined the boxes Avhich were rented by the State from the Safe Deposit and Trust Company. There were still lacking thirteen to make up the original number of a hundred and forty. The State offered to prove that subsequently to the eighteenth of November, 1889, Archer converted nine of these bonds to his own use, and its counsel stated that these were all which it could trace as converted after that date. This evidence was tendered for the purpose of proving Pthat the other four of the missing bonds were misappropriated by Archer prior to said eighteenth of November. The Court refused to permit the evidence to be given. The fact that Archer converted nine bonds after the eighteenth of November had no tendency to prove that he had converted four others prior to that date. There is no circumstantial connection between these two facts. It cannot be said that they are associated together as antecedent and consequent in the usual and common course of events. One of them is not the ordinary concomitant of the other. The circumstance that the State could not prove that more than nine bonds were taken after the date mentioned si imply leaves the disappearance of the others unexplained ; the date of their conversion unproved. The State had shown that twenty-four of these bonds had been taken before this date ; but it has not been argued that this is a circumstance capable of proving that the others were taken after the date. Yet it must be seen that if taking nine bonds after this day would show that the four others were taken previously ; the taking of twenty-four bonds before the day would show equally as well that the others were taken subsequently to the day. But neither proposition can be maintained. The point of time when the defalcation occurred is an essential fact in this controversy, and it must be proved as other facts are proved in Courts of law. Suppose that it had been proposed to prove on the part of the State that it had not evidence to show any defalcation after the eighteenth of November, .would this have been considered evidence that they had all been committed before that time ? It woirld probably have been universally regarded simply as a failure of proof in an essential particular. The offer of the State now in question must be placed in tbe same category ; it is an offer to prove that it was unable to show any defalcation after the .date mentioned, .except as to nine bonds ; in other words an offer to show a defect of proof. The same defect of proof applies to the predicament of the four bonds as well before this date as afterwards. And the offer resolves itself into a statement that there is no evidence of the time when they were misappropriated. Archer was brought into Court as a witness for the State ; but he refused to be sworn. In the course of the trial,. it was very apparent that he could have given important testimony for the State, if he had chosen to do so. But, nevertheless, the facts within his knowledge were required to be proven by competent evidence, so far as they were admitted into the case. Whatever other consequences resulted from bis silence, it did not authorize the admission of testimony which' was wanting in the probative force which the law exacts. We must affirm the rulings of the Court on both appeals. Judgment affirmed. (Decided 17th June, 1891.)