Davidson v. Brice , 91 Md. 681 ( 1900 )

By an Act of Assembly — chapter 615 of the session of 1894 — it was provided that the County Treasurer of Anne Arundel County should be elected by the people on the Tuesday after the first Monday in November, 1897, and on the same day in every fourth year thereafter. It was declared that he should hold his office for four years from the first Monday of May next after his election "or until his successor is duly elected and qualified." By sec. 223 of the same statute it was enacted that the person elected should give bond and take an oath before the Clerk of the Circuit Court "in form similar to that heretofore taken by collectors of taxes, except as to the title of office;" and that in the event of his failure to give the bond and to qualify within thirty days after his election, the County Commissioners should declare the office vacant. The same section further provided that in the event of the treasurer's death the County Commissioners should proceed to fill the vacancy by the appointment of a suitable person to serve as treasurer until his successor shall be elected "at the next general election thereafter to be held for county officers in said county, and qualified as hereinafter required." At the election of 1897, Dr. C. Morris Cheston was elected treasurer. He gave bond and qualified and subsequently entered upon the discharge of his duties. In December, 1898, he died. Thereafter the County Commissioners appointed Dr. Benjamin R. Davidson to fill the vacancy. Dr. Davidson duly bonded and qualified. At the general election of 1899, Dr. Davidson and R. Tilghman Brice were candidates for the office and the latter was returned elected. Within thirty days after the election he gave bond and took the oath of office prescribed by sec. 6, Art. 1, of theConstitution, but did not take the oath "heretofore taken by collectors of taxes," which is an oath exacted, not by the Constitution, but byArt. 81, § 36, of the Code. Dr. Davidson refused to surrender the office to Mr. Brice and based that refusal upon two grounds; viz., first, that the appointment made by the County Commissioners was for the unexpired portion of Dr. Cheston's term of four years, wherefore there had been no vacancy to be filled by an election, and would be none until 1901; and secondly, that the failure of Mr. Brice to take the oath prescribed for collectors of taxes was a "default * * * to * * qualify within thirty days" and rendered him ineligible even though he had taken and subscribed the constitutional oath. Application was thereupon made by Brice for a writ of mandamus requiring Davidson to surrender the office. The Circuit Court for Anne Arundel County held that Brice was legally entitled to the office and ordered the writ to issue, and from that order Davidson entered this appeal.

The case is, in our opinion, entirely free from difficulty. The first of the two grounds upon which Davidson's refusal to vacate the office rests is completely and effectually swept away by the very statute which fixed the term of office and provided for the election of a county treasurer. The term is, by that statute, declared to be for four years from the first Monday of May succeeding the treasurer's election "or until his successor is duly elected and qualified." An incumbent duly elected and qualified, if he lives, or is not removed, or does not cease to reside in the county, or does not resign, is entitled to hold the office for four years from the first Monday of May ensuing his election, or longer, if his successor is not duly elected and does not qualify. But it is obvious that any of the contingencies just named might happen; and if one of them should occur the incumbent's tenure would terminate prior to the expiration of the four years; and accordingly the Legislature provided that in the event of the death of the treasurer, the County Commissioners should declare the office vacant and should fill the vacancy, not for the residue of the original term, but until a successor should be elected at the next general election and should qualify. The appointee's tenure cannot, under the express words of the statute, reach beyond the general election next ensuing his appointment and the point of time thereafter when his successor chosen at that election shall qualify.

The election of 1899 was a general election, and it was the next general election which occurred after the appointment of Dr. Davidson had been made. It was, therefore, the election at which, according to the mandate of the statute, a county treasurer was required to be chosen by the people. This being so, and Mr. Brice having at that election received a majority of the votes cast, is entitled to the office if he gave bond and properly qualified. Now, did he properly qualify?

The only oath which he took was the one prescribed by sec. 6,Art. 1, of the Constitution. That oath reads as follows: "I ____ ____ do swear * * * that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitution and laws thereof; and that I will to the best of my skill and judgment, diligently and faithfully without partiality or prejudice execute the office of ____ according to the Constitution and Laws of this State * * *." The oath provided by the Code to be taken by collectors of taxes is in these words: "I, ____ ____, collector of ____, do swear that I will well and truly execute the duties imposed upon me by law, and that I will justly and impartially value all property which I shall be authorized to value, according to the best of my skill and judgment; and that I will not, either directly or indirectly, make any profit of the money collected by me, by the use thereof in any manner whatever." Does his failure to take this latter oath disqualify him? Varying this question somewhat so as to present the controlling inquiry more sharply, we may ask, has the Legislature the authority to prescribe as a qualification for the office of county treasurer any other oath than the one which sec. 6, Art.1, of the Constitution imposes? If it has, then Mr. Brice did not legally qualify; if it has not, then he did legally qualify.

Sec. 6, Art. 1 of the Constitution is a mandatory provision. It emphatically requires that "Every person elected or appointed to any office of profit or trust under this Constitution, or underthe laws made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath or affirmation," and then comes the oath which has been transcribed above. But this is not all. Not content with prescribing the precise oath to be taken, the Declaration of Rights, in Art. 37, prohibits any other oath from being exacted, for it declares: "That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God; norshall the Legislature prescribe any oath of office than the oathprescribed by this Constitution." Here, then, is an explicit limitation on the power of the Legislature. In the face of this positive and plain inhibition how can it be insisted that the Legislature may impose as a qualification for a public office some other and additional oath "than the oath prescribed by the Constitution?" If it may require the county treasurer to take the oath prescribed by the Code for tax collectors, it may with equal propriety superadd some other and widely different oath and completely nullify the restrictive clause of Article 37 of the Declaration of Rights. It was the obvious purpose of the people who adopted the Constitution of 1867, to deprive the Legislature of any power to formulate or impose an oath of office, except as respects the State Comptroller and the State Treasurer, each of whom, under sec. 1, Article 6 of the Constitution, is required to "take such oath and enter into such bonds * * * * * as are now, or may hereafter be, prescribed by law."

The significance of the restrictive clause in Art. 37 of the Declaration of Rights is conspicuous, if antecedent Constitutions of the State are consulted, and if the history of the disturbed period covering the Civil War and just preceding the adoption of the Constitution of 1867 be recalled. If we turn to the Declaration of Rights of 1776 we find Art. 35 reading in this way: "That no other test or qualification ought to be required on admission to any office of trust or profit than such oath of support and fidelity to this State, and such oath of office as shall be directed by this Convention or the Legislature of thisState, and a declaration of a belief in the Christian religion." Art. 34 of the Declaration of Rights of 1851 was in these words: "That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of office as may be prescribed by this Constitution, or by the lawsof the State, and a declaration of belief in the Christian religion; and, if the party shall profess to be a Jew, the declaration shall be of his belief in a future state of rewards and punishments." Art. 37 of the Declaration of Rights of 1864 declared: "That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of allegiance and fidelity to this State and the United States as may be prescribed by this Constitution; and such oath of office and qualification as may be prescribed by this Constitution, or by the laws of the State, and a declaration of belief in the Christian religion, or in the existence of God, and in a future state of rewards and punishments." Under the power thus conferred upon the General Assembly various oaths in addition to the oaths prescribed in the several Constitutions were adopted by the Legislature and were required to be taken by different officers. Among them was that part of the tax collector's oath requiring him to faithfully act as assessor, imposed by by the Acts of 1841, ch. 23, and 1847, ch. 266, though the last part of the oath prohibiting him from making any personal profit out of the public funds was enacted in 1874, ch. 483. There can be no doubt that the Legislature had under the Declaration of Rights of 1776, 1851 and 1864 the authority to prescribe oaths of office, and in many instances this authority was exercised. When the Convention of 1867 assembled it was a common belief that many of the official oaths which the Legislature had previously prescribed in the exercise of an undoubted power were needlessly stringent, and this sentiment found expression in that provision of the Declaration of Rights which, by prohibiting any other official oath than the one set forth in the Constitution itself, took away from the General Assembly the power to adopt or require an additional one. The omission from the Declaration of Rights of 1867 of the authority contained in every antecedent Declaration of Rights, giving the Legislature the power to impose an official oath was deliberate, and to give emphasis to the design of the framers of the Constitution a positive prohibition, introduced for the first time, was substituted for the rejected clause.

If we turn to the proceedings of the convention of 1867 it will be found that Article 37 of the Declaration of Rights was, when reported from the committee to the convention, worded precisely as is Article 34 of the Declaration of Rights of 1851; but upon motion of Mr. Bernard Carter the following substitute was adopted: "That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, nor shall the Legislature prescribe any oath of office than the oath prescribed by this Constitution." This was amended by adding after the word State "other than a declaration of belief in the existence of God." Thus the old provision which gave to the Legislature the power to exact official oaths not prescribed by the organic law was not only deleted, but a new clause was put in which denied to the Legislature the authority it formerly possessed in this particular.

Article 37 of the Declaration of Rights is not confined to offices created by the Constitution. It contains a broad prohibition declaring that no oath of office except that prescribed by the Constitution shall be exacted. It is wholly immaterial whether the office be of constitutional creation or of statutory origin. The origin of the office is not the test as to what form of oath is to be taken. No office, however created, can be assumed until an official oath is taken, and no official oath other than that set forth in the Constitution can be required because that is the only one prescribed by the Constitution, and all others are prohibited by the Declaration of Rights. Art. 37 does two things. It prohibits any religious test as a qualification for any office of profit and trust, other than a declaration of belief in the existence of God; and it prohibitsany oath of office other than the one set forth in sec. 6,Art. 1, except as respects the Comptroller and Treasurer. By no known rule of interpretation can these prohibitions be confined to offices specifically created by the Constitution; nor can they be restricted to a narrower scope than their plain words indicate. If the last of the two prohibitions does not apply to an office created by statute then neither does the first, because the first is no more comprehensive than the second; and therefore if the Legislature may require a county treasurer to take an oath in addition to the constitutional oath, it may require some other religious test than a belief in the existence of God as a qualification for the same office. It has never been pretended that the Legislature could prescribe a religious test for a statutory office, but it has just as much power to prescribe one as it has to disregard the equally broad and emphatic prohibition against exacting any other official oath than the constitutional oath.

Without discussing the cases relied on by the appellant's counsel, it is only necessary to say that they all arose on statutes passed prior to the adoption of the Constitution of 1867, and therefore passed when the Legislature had the authority to prescribe an additional official oath. Cases from beyond this State can have no influence on the interpretation of our own organic law.

It results from what we have said that the Legislature was without authority in 1894 to exact the additional oath required of the county treasurer, and as the exaction of it was unwarranted, the failure of Brice to take it cannot defeat his right to the office.

For the reasons assigned we think the order appealed from was right and it must be affirmed with costs.

Order affirmed with costs above and below.

(Decided November 15th, 1900.)