THE LEGISLATIVE POWER TO CREATE AN ELECTIVE OFFICE
A BRIEF NOTE ON THE LEGISLATIVE POWER TO
CREATE AN ELECTIVE OFFICE1
The legislature is wholly within its
power in creating an elective office and
may prescribe how it will be filled.2
More specifically, ". . . the legislature
may create a public office, other than
one created by the Constitution, provide
for election or appointment of its incum-
bent, establish and modify from time to
time its tenure, compensation, and
duties, and abolish the office as the pub-
lic interest may require."3
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The Maryland Court of Appeals im-
plies that the state legislature can cre-
ate an elective office. Dealing with the
question of whether a constitutional
provision prohibiting the legislature
from increasing or diminishing a public
officer's salary, the court held that this
prohibition of the officer's salary after
his election or appointment was not
limited to constitutional officers.4
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THE CHARTERING OF NEW CORPORATIONS
THROUGH ACTS OF THE GENERAL ASSEMBLY5
Re: That part of Section 48 of the Maryland Constitution which requires corpo-
rations to be formed under the provisions of the general corporation laws and not
through special acts of the legislature:
Such a limitation on the legislature
may be necessary, but the necessity of
having the limitation in the constitution
is questionable in light of the following
considerations :
A. If the present Article III, Section
33 (or one to the same effect) is
retained, providing that there shall
be no special law for cases provided
for by general law, then a reten-
tion of the above limitation would
be superfluous.
1 This note was prepared for the Commis-
sion by Frank T. Ralabate, research assistant
to the Constitutional Convention Commission ;
B.S., 1964, Canisius College; LL.B., 1967,
Eastern College, Mount Vernon School of
Law.
2 Groves v. Bd. of Educ., 367 111. 91, 10
N.E. 2d 403, appeal dismissed, 303 U.S. 622,
58 Sup. Ct. 746, 82 L. Ed. 1085 (1937);
Dunkel v. Rogers, 279 App. Div. 44, 108
N.Y.S.2d 32 (1951); Higginbotham v. City
of Baton Rouge, 306 U.S. 535, 59 Sup. Ct.
705, 86 L. Ed. 45 (1939).
3 Cullen v. Mayor of City of Newton, 308
Mass. 578 32 N.E. 2d 201 (1941).
4 Calvert County Comm'rs v. Monnett, 164
Md. 101, 164 Atl. 155, 86 A.L.R. 1258 (1933).
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B. While it is true that the legislature
could change the law, Article 23,
Section la of the Code, which sub-
jects all corporations (with the ex-
ception of banks, etc.) to the
provisions of Article 23, would
probably provide the necessary
"brake" to any action of the legis-
lature intended to provide for the
formation of a corporation by
special act.
C. Only 3 other states have such a
limitation, in one form or another,
in their constitutions.6 Appar-
rently the other 46 states feel such
a limitation is unnecessary (as
well as the framers of the Model
5 This memorandum was prepared for the
Commission by J. Michael McWilliams, re-
search assistant to the Constitutional Conven-
tion Commission; B. S., 1964, Georgetown
University; LL.B., 1967, University of Mary-
land; member of the Maryland Bar.
6 ariz. const, art. XV, § 5; N.M. const.
art. XI § 6: va. const, art. XII, § 156a.
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