Philip Francis Thomas, Comptroller, vs. Jas. S. Owens, Treasurer, 4 Md. 189

Eccleston, J., concurred with the majority of the court in the affirmance of the order, but dissented upon one point, upon which he delivered the following dissenting opinion: I concur with the majority of the court in their conclusions, except in reference to the period at which the salary of the Comptroller commenced. According to my construction of the constitution, he was not qualified to perforin the duties of the office, until he took the oath and gave the bond prescribed by the act of 1852, ch. 12.

Believing, as I do, that salary is given as compensation for services, I cannot understand how an officer can be entitled to salary for any period of time, during which he could not legitimately perform his official duties. There can be no doubt that the convention intended this officer should give bond. And if so, the provision was designed to protect the State against official misconduct. Simply taking the oath prescribed in the 4th sec. of the 1st art. of the constitution, it is manifest, was not deemed sufficient to afford the necessary protection.

For after requiring all officers to take the-oath just mentioned, it is provided in the' 1st sec. of the 6th art., that the Comptroller shall take such oath and give such bond as the legislature shall prescribe. After making this provision for the security of the State, how can it be supposed the convention did not intend to require a full compliance with the act of the legislature, before the duties of the office could be assumed?

If the bond be necessary for any portion of time during the performance of official duty, it must be equally necessary during the whole term of office; if the protection of the State against misconduct of the officer is the object to be attained. Suppose that subsequent to the act of the legislature the Comptroller had refused to comply with its provisions, insisting that he was already in office, and would perform its duties and demand his salary, upon the ground that he had taken the oath directed in the 1st article, could it be successfully maintained that he had the right to do So? I think not.

If not, then why? It could only be for the reason that he was not qualified. And yet, in the supposed case, every requisite to constitute him Comptroller would exist, except a compliance with the legislative act.

There Was no necessity for permitting the officer to enter upon his duties before the action of the legislature, for the 8th sec. of the 10th art. provides, that the officers holding commissions under the old constitution, should continue to hold and exercise their offices, according to their existing tenure, until they should be superseded pursuant to the new constitution, and until their successors should be duly qualified.

Under this provision the Treasurer was authorised to continue, and in fact did continue, to perform the duties of the treasury department, until after the passage of the act in reference to the qualification of the Treasurer and Comptroller. The authority of the legislature to pass such a law, and the imperative obligation of the officer to comply with its terms, are to be found in the 6th

article of the constitution. And, in my judgment, not only did that instrument give authority to the legislature to act in the premises, but when, in relation to that important branch of the government, the treasury department, it declared that the Comptroller “shall take such oath and enter into such bond, for the faithful discharge of his duties, as the legislature shall prescribe,” it imposed a duty upon the legislature to pass a law on the subject.

When passed under such express requirement of the constitution, compliance with the provisions of the act became as necessary preliminary steps in the qualification of the Comptroller, as if the same provisions had been set forth in the constitution itself. It will avail nothing to say that the construction here contended for, would authorise the legislature, by refusing to act, virtually to nullify an election by the people and to repeal the constitution, in regard to the office of Comptroller.

In every constitution there must be trusts or powers confided to the different branches of the government; a failure or refusal to perform which, would render nugatory and void some of the most important provisions of the organic law, and deprive individuals of valuable rights, for which there can be no relief, except through the ballot box, by removing the delinquent officers.

Notwithstanding such inconveniences may result from the necessary imperfection of all human affairs, yet when the creation of rights, or the completion of those which are imperfect, depends upon legislative enactments, such rights are not created or perfected, in consequence of the failure to act. If the possibility of neglect to execute, or of a corrupt execution of, a power, is a sound argument against its existence, then there are no constitutional powers, for any of them may be neglected or corruptly executed.

Suppose a vacancy in the office of Treasurer, occasioned by death, during the session of the legislature.

Now, if they should neglect or refuse to appoint a successor, and after their adjournment the governor should decline filling the vacancy, the treasury department would be in quite as bad a predicament, as it would be placed by the construction for which I have been contending, even if the legislature bad refused to pass any law in regard to the oath and bond of the Comp-trailer, and yet I presume it will not be said that the legislature and governor have no power of appointment under the supposed circumstances.