The only recorded debate upon the pro-
vision preceded the rejection of an 1864
amendment excepting the position of
justice of the peace from "office of
profit".
Article I, Section 6 of the United
States Constitution provides:
"No person holding any Office under
the United States, shall be a Member
of either House during his Continuance
in Office."
This narrow provision closely follows
Article III, Section 11 of the Maryland
Constitution which states:
"[N]o person holding any civil office
of profit, or trust, under this State,
except Justices of the Peace, shall be
eligible as Senator, or Delegate."
THE COURT OF APPEALS
1. the test of office of profit:
The Maryland Court of Appeals has
said that "In general, the facts and cir-
cumstances in each case and the nature
and effect of the particular provision of
lav/ by which the office was created, gov-
ern the determination as to whether the
office in question is one of profit."4
Among the "circumstances" of the
office which the Court considers are:
a. Is the office created by law?
b. Are the office's duties continuing
and not occasional?
c. Does the office include the exer-
cise of "some portion of the sovereign
power of the State"?
d. Is there a commission?
e. Is bond required?
f. Is an oath prescribed?
4Moser v. Howard County Bd., 235 Md.
279, 281 (1963).
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g. Is the office one "of dignity and
importance"?
h. May the officer be penalized for
misfeasance?
i. Are tenure and compensation
fixed by law?
The public officer is distinguished from
the "servant," "employee," or "sub-
agent" who is under the direction of
superiors and does not partake of the ex-
ercise of the State's sovereign power.
2. offices of profit:
The Court of Appeals has held the
following to be offices of profit: super-
visor of elections, municipal councilman,
justice of the peace, clerk to the county
commissioner, the mayor of Baltimore,
the comptroller and city council of Bal-
timore, county commissioner, city man-
ager, county metropolitan commissioner,
county treasurer and notary public (prior
to the 1964 amendment).
The following were held not to be of-
fices of profit: deputy state auditor, the
chief of the right-of-way department of
the State Roads Commission, the chief
of the alcoholic beverages division in the
office of comptroller of the treasury, and
superintendent of public instruction.
3. article 35 litigation:
Article 35 has been utilized in attempts
to enjoin supervisors of elections; as a
basis to fill the first office held by an in-
dividual who has taken upon himself the
duties of a second office; to invalidate a
commission's acts; and to remove an in-
dividual from office.
4. other related constitutional
references :
Article 36 of the Declaration of Rights :
regarding oath for office of "profit or
trust".
315
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