Mr. THOMAS. That can be done in a sep
arate independent section.
Mr. THURSTON. That is taking a whole
section to do the work which two words will
do in this section.
Mr. THOMAS it looks to me as if it were
providing for both appointment and election
Mr. THURSTON. It is.
Mr. THOMAS That is what I object to. It
looks like submitting both an elective and
appointed judiciary to the people.
Mr. THURSTON. I have no such object.
Mr, JONES, of Somerset. The gentleman
from Baltimore city (Mr. Thomas) is mis
taken. It merely prescribes that when there
is a vacancy which the governor will be au-
thorized to fill by appointment, the one so
appointed shall have these qualifications
herein prescribed.
Mr. THURSTON. I will modify my amend-
ment. so as to insert after the word "elec
tion," the words "or appointment by the
executive, in case of a vacancy by death,
disqualification, or otherwise."
Mr. SANDS. I would just like to suggest
that the proper place for this amendment
would ie in the third section, if the mem-
bers of the convention will look at the re-
port they will see that it being based upon
an appointive system, there is no section in
it in regard to vacancies. And we will have
to incorporate in it a section providing for
the filling of vacancies occasioned by dearth,
resignation, or disqualification. And in that
section would be the proper place to include
the idea of my friend from Allegany (Mr.
Thurston ;) that in case of the death, resigna-
tion, or disqualification of any of the judge?,
the governor should appoint for the unex-
pired term a person learned in the law, as
judge of said circuit; and said person shall
have all the qualifications heretofore pre-
scribed for the judges of this State.
Mr. STIRLING. That is what the present
constitution says, but it says what is a tech-
nical absurdity. It says that a man shall
posses..! "the same qualifications." And when
we look back to the section prescribing the
qualifications, we find that he must have re-
sided in the State for five years preceding
"his election." Now a man not elected but
appointed cannot have resided in the State
for five years before his "election." I know
that the proper construction would be that
he must have resided in the State five years
preceding his appointment. But why not
make this section read properly while we
have it under consideration?
Mr. SANDS. We must have a section in
this report providing for the fixing of vacan-
cies. And when we do that, we can pre-
scribe the same qualifications for the judges
appointed that we prescribe for those elected.
What are those qualifications ?
Mr, STIRLING. It requires a residence of
five years before election. |
Mr. SANDS. Certainly; you fix the age,
and the number of years that he must have
been a citizen of the State. You will want
in additional section in regard to fining va-
cancies. And this amendment certainly does
impair, it seems to me, very much the phra-
seology of this section. '
Mr. THURSTON. This is the only and the
proper place for it.
Mr. JONES, of Somerset. I would suggest
to the gentleman to add the words "as here-
inafter provided."
Mr. THRUSTON. I desire to rend for the in-
formation of the convention, this section as
1 propose to have it amended :
"The judges of the several courts, except
the associated judges of the orphans' courts,
shall be citizens of the United States, and of
this State, not less than five years next pre-
ceding their election or appointment by the
executive, in case of a vacancy by death,
disqualification, or otherwise," &c.
We are here prescribing the general quali-
fications for any one to be a judge; and
here is the proper place to prescribe the qual-
ifications for appointment or election to the
office of judge, whether you have another
section for filling vacancies or not, the
judge? must all possess these qualifications,
and this is the proper place to prescribe these
qualifications for all judges, whether ap-
pointed or elected.
Mr. STIRLING. I will also add that this
very question has already been raised under
the present constitution. And white it was
not decided, because it was finally deter-
mined that the judge had the proper qualifi-
cation as to residence, the question was ac-
tually raised that because the present consti-
tution said that the judge shall have resided
one year next preceding his election in the
judicial district for which he was elected,
that was not binding upon the governor in
case of appointment. And I know that in
the case of the appointment of the present
judge of the criminal court, the governor
took the ground that he had a right to
appoint a man to fill the vacancy without
any reference to the fact of his residence, be-
cause the constitution said one year before he
was elected, and that if a man was not
elected but appointed, that did not apply to
him.
The question then being taken upon the a-
mendment of Mr. THRUSTON, upon a division—
ayes 32, nays 18—it was adopted.
Mr. ABBOTT. I move to strike out the
words "appointed" and "appointment,"
wherever they occur in this section, and in-
sert the words "elected" and "election."
The question being then taken, the motion
to so amend was agreed to,
Mr. STIRLING. I move to strike out the
words " and not less than one year next pre-
ceding their election resident in the judicial
district or circuit, as the case may be, for |
