Ash v. McVey

Citations

• 85 Md. 119
• 36 A. 440
• 1897 Md. LEXIS 24

Syllabus

<p>Office and Officer— Vacancy — Executive Appointments to Fill Vacancies — Right of Officer to Hold Over After Term Until Qualification of Successor — Adjournment of Senate Without Confirming Appointment — Statutory Office — School Commissioner — Constitutional Law.</p> <p>When an office is created by statute and not by the Constitution, the Legislature may authorize the Governor to appoint to the same without confirmation by the Senate, or to fill vacancies in the same without confirmation. And where the Governor is authorized to fill a vacancy in the statutory office for the balance of the unexpired term of the incumbent, such appointment is not within the Constitution. Art. 2, sec. n, which provides that the commissions of officers appointed during a recess of the Legislature shall continue in force only until the end of the next session of the Legislature.</p> <p>When an officer is appointed for a definite term, he is entitled to hold over after the expiration thereof and until his successor is duly qualified, unless there be some clear provision of law in the particular case which operates as an ouster at the end of the term.</p> <p>When a person is appointed to an office for a definite term and until his successor shall qualify, and when such successor can only be appointed, except in the case of vacancy, by the Governor with the consent of the Senate, and the Governor’s nomination of a successor is not confirmed by the Senate, then upon the expiration of the incumbent’s term of office during a recess of the Senate, the Governor is not authorized to appoint a successor because there is no vacancy in the office.</p> <p>When the Governor is authorized to fill a vacancy in an office, the • vacancy must exist before the power of appointment can be exercised, and the act of the Governor in appointing a successor to a person rightfully holding over in office because there is no qualified successor cannot create a vacancy.</p> <p>The Act of 1892, chap. 341, provided