Field v. Malster

41 A. 1087, 88 Md. 691, 1898 Md. LEXIS 231

• Court: Court of Appeals of Maryland
• Decided: December 21, 1898
• Status: Published

Opinion

McSherry, C. J.,

delivered the opinion of the Court.

This controversy raises the question as to whether the Mayor of Baltimore City possesses the power to remove summarily and without cause a member of the Board of Visitors of the City Jail. The case was argued with marked ability on both sides, and its importance has caused us to give it the most careful consideration. The power claimed by the Mayor, and actually exerted in this instance, is wide and far reaching, and unless clearly and unequivocally conferred cannot be upheld.

By the charter of the City of Baltimore authority is given to the Mayor and City Council “ to provide by ordinance for the appointment, as other city officers are appointed, of visitors or other superintendents of the jail of said city, and to prescribe the powers and duties of such visitors or superintendents.” Code, Pub. Local Laws, Art. 4, sec. 333. Section 1, Article 29, of the City Code of 1893, enacts: “ There shall be biennially appointed, as other city officers are appointed, six citizens of Baltimore, to be called the ‘ Board of Visitors of the Jail of Baltimore City,’ and the Mayor shall be ex-ofñcio a member of said board.” Section 43 of Article 1 City Code of 1893 declares that “ all officers of the City except the Register and any other person holding any office for whom a different term may be prescribed in the ordinance creating such office, shall be appointed biennially in the month of February, and shall enter into their respective office on the first day of March immediately following their respective appointments.” In 1896 the appellant was appointed by Mayor Hooper one of the Board of Visitors of the City Jail. He was duly confirmed and commissioned and subsequently qualified. He served two years and in March, 1898, he was re-appointed by Mayor Malster and was again duly confirmed and commissioned. He again qualified and entered upon the discharge of his duties. Some time in May or June following, a majority of the Board of Visitors, acting under and in accordance with the authority conferred upon the board by the statutes of the State, convicted, “ after a fair and impartial hearing,” certain of the officers or employees of the jail of dereliction of duty and requested the warden to discharge the delinquents. This was done by the warden. Thereupon Mayor Malster instructed the warden to reappoint the men thus removed by the Board of Visitors, and he asked the board to reconsider its action in dismissing them. The appellant refusing to comply with the Mayor’s wishes, was invited by the Mayor to resign. He refused to resign, and on July the twentieth the Mayor wrote him as follows: “ Sir: I asked for your resignation on July n inst., and up to the present time have received no reply. I therefore respectfully notify you that your place as a member of the Board of Visitors of the Baltimore City Jail is declared vacant from this date.” The Mayor then appointed Oscar E. Ross to fill the alleged vacancy; and on August the fourth the appellant filed in the Baltimore City Court a petition for a writ of mandamus against the Mayor and the warden of the jail requiring them to restore to the relator the rights, privileges and powers of the office of Visitor of the Jail; and against Oscar E. Ross commanding him to cease the exercise of all authority as one of the members of the board. The petition was answered and amongst other things reliance was placed upon sec. 46, Art. 1, of the City Code of 1893. That section reads thus: “ A term of holding shall not be deemed to be created by any resolution or ordinance só as to affect the power of removal given to the Mayor by Article IV, section 31, of the Public Local Laws, because such resolution or ordinance may prescribe that such officer or officers may or shall be appointed biennially or in the month of February, or as other city officers are appointed, or by any other like expression indicating a periodical duty of appointment, and such words shall not be deemed and taken as otherwise provided by law or ordinance so as to annul the power of removal intended to be given by said section.” To a part of the answer the relator filed a plea setting forth that sec. 46 had been repealed by ordinance No. 13 adopted March 9, 1896; and to the residue of the answer he demurred. The respondents, by way of demurrer to the plea, admitted the passage of ordinance No. 13 as a matter of fact, but denied, as a matter of law, that its passage resulted in the repeal of sec. 46. The case thus stood at issue on demurrer. Upon hearing, the relief sought was denied, the petition was dismissed and the relator appealed.

It is not only conceded that the Mayor undertook and intended to remove Mr. Field from the office of Visitor of the Jail, but it is insisted that he was clothed with full authority to do so. Whether he had such authority depends, first, upon the character — the duration — of the relator’s tenure; and secondly, upon the provisions of the statutes and ordinances pertaining to the power of removal. The power of appointment to an office is not involved in this case as it was in Hooper v. Creager, 84 Md. 195, but the power of removal is distinctly challenged. By sec. pi, Art. 4, Ptib. Loe. Lazvs, amongst other things it is provided that, “ All persons holding office under the corporation of the City of Baltimore shall, unless otherwise provided by law or ordinance, hold their respective offices during the pleasure of the Mayor.” The power of removal is essentially incident to and included in the power to terminate the tenure of an officer, and the power to terminate a tenure is inseparable from a holding at the pleasure of another. Hence in all cases where either the statute law or the ordinances do not prescribe or fix a definite term of holding, the Mayor may remove the incumbent at any time. We must turn, then, to the charter and the ordinances to ascertain the character of the term of the relator’s office.

It is obvious that sec. pi just referred to authorizes the municipality to create a definite term of office where no such term is provided by the charter; because the section declares that only such holdings shall be at the pleasure of the Mayor as are not otherwise, that is, definitely, fixed by ordinance or by statute. Possessing, then, the power to prescribe a definite term by ordinance, the Mayor and City Council adopted the ordinances we Lave already quoted from — the one, requiring that six visitors of the jail shall be biennially appointed, and the other, of later date, declaring that all officers, except those for whom a different term may be designated, shall be appointed biennially in the month of February and shall enter into their respective offices on the first day of March following. These ordinances read together, as they must be, can mean but one thing. They require a biennial appointment of the Visitors of the Jail, and they prescribe the beginning of the term as the first day of March. These visitors are directed to be appointed in February, their terms begin in March and their successors cannot be selected and cannot assume office for two years thereafter. If this does not make a definite term for two years it is difficult to suggest a reason why it does not. The beginning of the term is fixed; the time when the successors of the incumbents shall enter is also fixed, and this marks the end of the term; and the selections are to be made biennially, and this designates the duration of the term. Every element that is necessary to make a definite term is present— the beginning, the end and the duration. Now, sec. 45, of Art. 1, City Code, designates this a term of office, as contradistinguished from a holding at will, because it fixes two years as the duration of all official terms unless a “ different term ” is named in the character or ordinances. A different term obviously means some term other than the one defined by this section; and consequently, of necessity, implies a term. A different term cannot differ from no term — there must be a term from which it does differ when the two are compared. “ The word ‘ term,’ when used with reference to the tenure of office, ordinarily refers to a fixed and definite time and does not apply to appointive offices held at the pleasure of the appointing power.” 19 Am. & Eng. Ency. 562 K. The words of the ordinances we have been considering or equivalent words have always been construed to create a definite term. Robb v. Carter, 65 Md. 333; State v. Wayman, 2 G. & J. 278; Thomas v. Owens, 4 Md. 218; Sansbury v. Middleton, 11 Md. 312.

If the relator’s term of office be a fixed and definite one, then he cannot be arbitrarily and summarily removed without cause, unless there is some express provision of law authorizing such a removal during the term. Townsend v. Kurtz, 83 Md. 342. Accordingly, section 46 of Art. 1, City Code, which has been quoted in an earlier part of this opinion, has been relied on as justifying the removal of Mr. Field. This ordinance undertook to define the meaning of antecedent enactments. In Farnan’s case, 85 Md. 598, we called this ordinance a declaratory ordinance, and we said, in the same connection, that it was intended primarily to define what words in the various city ordinances relating to the appointment of city officers should not be construed to create, or as intending to create, a definite term of office. But this statement, in view of the context, by no means meant or can be construed to imply that sec. 46 was declaratory of what had been, or apart from its provisions was, the law. It was declaratory in the sense of defining — interpreting by legislative enactment —various forms of expression in earlier ordinances, and in limiting to a narrower scope, phraseology which without such an interpretation or restriction would have created definite terms, so far forth as to prevent the Mayor from removing the incumbents without cause. It accordingly enacted that a term of holding which would defeat this power of removal by the Mayor should not be considered as created by an ordinance which provided that the officer should be appointed biennially, or in the month of February; but it nowhere undertook to affirm or declare that apart from its own provisions placing that interpretation on such terms of holding, those terms of holding had always created only such a tenure as made the incumbent an appointee at will. Farn an’s case does not decide that the ordinance was declaratory in this latter sense; but carefully restricted the word declaratory to the sense of defining the meaning ascribed by sec. 46 to antecedent ordinances. The ordinance did not, and could not, make a term that was specifically declared to be a definite term, a mere holding at the pleasure of the Mayor. The school commissioners, with whose tenure we were dealing in Far-nan’s case, held for a term of four years. This section 46 was set forth and relied on in the answer in that case to show that they could be summarily removed by the Mayor. We held that the ordinance did not apply be-cause it was simply declaratory of the meaning — it construed the language of other ordinances which did not in express words create definite terms, but created them by general phrases which had always theretofore, and but for that section 46 would still have, been interpreted to intend a fixed term. No possible reading of section No. 46 could have made it cut down a four years term, expressly declared to be for four years, and convert it into a holding at will. A. four years’ term was not within any of the categories contained in section 46.

But for sec. 46 there could, we think, be no pretence that the term of the Visitors of the Jail is anything other than a definite and fixed term of two years. Nothing besides this ordinance was relied on in the answer or in the argument to convert this definite term into one practically at the pleasure of the Mayor.

The relator by his plea to the respondent’s answer alleges that sec. 46 was repealed on March 9, 1896, by ordinance No. 13. The passage of ordinance No. 13, is, as a matter of fact, admitted, but as matter of law it is denied that its passage abrogated or repealed sec. 46. And here lies the main contention in the case. Ordinance No. 13, which is brought before us by an agreement in the record and is relied on in the pleadings, is entitled “ an ordinance to repeal sections 45, 46 and 47 of Article 1, Baltimore City Code of 1893, title ‘ Mayor and City Council ’ sub-title, ‘ City Officers ’ and to reenact the same with amendments.” The first section explicitly repeals sections 45, 46 and 47 and re-enacts 45 and 47. Both 45 and 47 have relation to the appointment of city officers. They- — these two sections — together with other ordinances passed during the controversy between Mayor Hooper and the City Council, attempted to strip the Mayor of all participation in naming the various officers of the city; and with that end in view they undertook to lodge in a joint convention of the City Council the sole power of appointment. Amongst others was ordinance No. 42 which repealed and re-enacted secs. 31 and 32 of Art. 50 of the City Code of 1893, and that is the particular ordinance which was before us in Hooper v. Creager, 84 Md. 195. The obvious designs of this legislation, of which ordinances No. 13 and No. 42 formed but part, were two-fold. The one to deprive the Mayor of all authority to make or to aid in making appointments to office; the other to repeal the declaratory ordinance which by the construction it placed on older ordinances might enable the Mayor to remove a larger number of officers than he otherwise could have removed except for cause. This repeal, however, did not interfere with his power to make removals under sec. 31, Art. 4, Pub. Local Laws; but merely left the power as it had existed prior to the adoption of sec. 46 of Art. 1, City Code. The repeal, therefore, was simply the repeal of an ordinance which defined antecedent ordinances. That definition being abolished these older ordinances were left to be interpreted just as they were understood before the adoption of sec. 46 — the defining ordinance — and precisely as though that section had never been enacted. But in the litigation which grew out of the contest between Mayor Hooper and the appointees of the City Council, this Court declared the attempt to strip the Mayor of his statutory power to make, or to participate in making, appointments to be abortive, and decided that ordinance No. 42 was ultra vires. Hooper v. Creager, supra. It is now insisted that because secs. 43 and 43 of ordinance No. 13, enacting affirmative legislation and placing in a joint convention of the City Council the power of appointment, was in effect stricken down by the overthrow of a similar provision in ordinance No. 42, the whole of ordinance No. 13 must fall, and, therefore, that the repealing portion — a distinct and entirely independent provision — cannot be operative or effective. The argument is, that this legislation was one entire scheme, and as a part failed the whole must fall. But there were two distinct and wholly independent objects sought to be accomplished. One was clearly within the power of the Council to execute — for, having the power to enact section No. 46, they undoubtedly had the power to repeal it — the other was palpably ultra vires. The City Council sought to adopt both, and it does not follow, because that which they were without authority to pass failed, the measure which they had the power to enact necessarily fell with it. Such a broad doctrine might nullify the whole of every statute though all its provisions, save one, were constitutional. There was no indissoluble connection between the two objects of ordinance No. 13. There is simply a physical or accidental connection — they are both set forth on one sheet of paper. The repeal of sec. 46 could have been effected by a separate ordinance without interfering with secs. 45 and 47. And so the latter could have been amended without touching sec. 46. If these distinct objects — the total repeal of one section, and the amendment of two others — had been dealt with in two separate ordinances it would scarcely be contended that the invalidity of the one caused the 'other to be inoperative. Most assuredly such a contention would not prevail when the alleged invalidity arose from the one being ultra vires whilst it was confessedly within the power of the municipality to enact the other. In Berry v. B. & D. Pt. R. R. Co., 41 Md. 465, this Court had before it the Act of 1874, ch. 38p. That was an act to amend the charter of the Drum Point Railroad Company. It amended two sections of the original act of incorporation and added eight other sections. One of these sections purported to extend the time for completing the road and to extend it beyond the date fixed in the ipth sec. of the charter; but as printed the time was curtailed. Upon examination of the engrossed bill as it was finally acted on by the two Plouses of the Legislature with the endorsements thereon by the proper officers and the journals of both Houses, it appeared beyond doubt that the extension of time as it appeared in the third section of the Act as that Act was sealed and approved by the Governor 'was materially different from the third section of the Act as it passed the two Houses ;■ and it was accordingly held that this third section, as contained in the approved Act, was null and void. But because the third section was void the whole Act was not declared inoperative. This Court said: “ Here as the entire published statute except the third section, was regularly passed by the Legislature and approved by the Governor, there can be no reason for declaring the other portions of it void, because the third section is found to be a nullity. Statutes may be void in part and good in part; and if the part that is valid is entirely distinct and severable from that which is void, the Courts will uphold and enforce the former as if passed disconnected from the latter.” And State &c. v. Com. of Balto. Co., 29 Md. 521, and Mayor of Hagerstown v. Dechert, 32 Md. 369, were referred to. See also Stiefel v. The Md. Ins. &c., 61 Md. 144, where a repealing section of a statute was held valid, and another section of the same statute attempting to enact affirmative legislation was held invalid. There is nothing in the case of State v. Bensinger, 83 Md. 481, at all in conflict with this view. In that case the Act of 1896 was under consideration. The Act by its title purported to repeal an Act of 1894 relating to brokers’ licenses. In the body of the Act of 1896 not only was the Act of 1894 repealed, but affirmative legislation was attempted. This was held invalid because not disclosed in the title. If the repeal alone had been permitted to stand, there would have been no statute imposing such a license. As it was obvious that the purpose was to substitute the affirmative provisions of the Act of 1896 for the legislation contained in the Act of 1894, and as it was equally clear that for that purpose, and that purpose only, the Act of 1894 was repealed; it followed when the affirmative legislation failed, the whole object of the enactment was defeated and effect was, therefore, not given to the mere naked repeal. If the repealing clause had under these conditions been held to be operative, the intention of the Legislature would have been absolutely thwarted, and precisely the reverse of the situation contemplated would have been brought about. But such is not the case here. The repeal of sec. 46 did not affect the Mayor’s statutory power of removal under sec. 31, Art. 4, Pub. Local Laws. Under that section he could still, after the repeal of sec. 46 of Art. 1 of the City Code of ordinances, remove at will any appointee holding at his pleasure; and he could remove for cause any other appointee by observing the requirements of the statute. The statute — that is sec. 31, Art. 4, Pub. Local Laws — provides for two contingencies; namely, summary removals, and removals for cause, and the repeal of section 46 of the ordinances left those powers unaffected. Unlike the repeal discussed in Bensinger’s case, the repeal of section 4.6 still left in force ample legislation on the subject of the repealed provision. There was no attempt to substitute some other scheme of removal in place of sec. 46. It was unconditionally repealed.

It was argued that the invalidity of ordinance No. 13 throughout all its provisions, and, therefore, as a repealing ordinance, that is, as repealing sec. 46, has been necessarily assumed in Hooper v. Creager, 84 Md. 195. And the learned and accomplished Judge who decided this case below, stated that ordinance No. 13 was “ void throughout as an inseparable part of a consistent, but ultra vires scheme of municipal legislation designed to extinguish the Mayor as a co-ordinate factor in the whole system of municipal officeholders.” Certainly there is nothing in the opinion of this Court in that case to indicate that ordinance No. 13 was dealt with at all. It was in the record as were numerous others. We were, in the Creager case, treating solely of the power of appointment, not of the power of removal; and the whole purpose of the opinion was to- show that the City Council could not deprive the Mayor of his statutory right to participate in making appointments to municipal offices. ■ The scheme which was declared ultra vires —though we spoke not of it as a scheme — was the effort to deprive the Mayor of his power to appoint. This is made quite apparent upon turning to the opinion on page 242. After stating how the city tax collector and other officers had been appointed and then describing the method prescribed by the new ordinances we said: “ Whether this radical change in the method of appointment of the city tax collector and of numerous other officers, whereby the Mayor was deprived of all participation in their selection is ultra vires or not, is the predominant and controlling question in the case.” We proceeded to discuss that question, and that question alone, without adverting in any way to the repeal of sec. 46 and without suggesting or intimating that the repeal was abortive or ineffectual. The question of its repeal was not before us.

But it is further insisted that sec. 46 has been judicially recognized as an existing law in a case in which it must necessarily have been considered, and was in fact considered and commented on and made the basis of the Court’s decision. In support of this Farnan’s case is cited. This view results from an entire misapprehension of the case of Farnan v. Hooper. Mayor Hooper undertook to remove the school commissioners of Baltimore City and to appoint a new board. The litigation in New v. Hooper and Farnan v. Hooper was the result. The validity of the appointment of the old board, the duration of the term of office and the power of the Mayor to remove the members, were the questions that arose. To the petition for a mandamus in Farnan’s case Mayor Hooper filed an elaborate answer. The tenth paragraph of that answer averred: “ That the charter of the City of Baltimore in express terms declared that all municipal officers shall hold their respective offices at the pleasure of the Mayor unless otherwise provided by law or ordinance . . . That for the purpose of construing the language used in said charter provision and to give it the broadest meaning, the Mayor and City Council of Baltimore has heretofore passed the following ordinance contained in Art. 1, sec. 46, of the Baltimore City Code of 1893 ” — and then sec. 46 is set out in full. The answer then proceeds to allege that the school commissioners are municipal officers “ subject to this power of removal at the pleasure of the Mayor.” To this whole answer the relator demurred and thus, for the purposes of that case, by the pleadings, the existence of the section was admitted. This Court had no authority to look beyond the record and to search the ordinances of the city to see whether sec. 46 had been repealed, as it would have been obliged to do had the enactment been a public general or a public local statute. Courts cannot take judicial notice of the ordinances of municipal corporations — they must be proved as facts— Central Sav. Bk. v. Mayor &c. Balto., 71 Md. 515, and so there was nothing left for us to do but to deal with the record as we found it. The ordinance, sec. 4.6, was discussed because the parties by their pleadings had made it a part of the case just precisely as they might have made any other statement of fact. The admission by a demurrer that an ordinance is in existence certainly does not, beyond the purposes of that particular case, give the ordinance vitality, if in fact it has been repealed. To judicially recognize a fact when the fact only appears as a fact by the concession of a demurrer is not a judicial determination that, the fact as a fact does exist. Upon demurrer things are treated as facts that are not or may not be facts, and it would be a most singular conclusion if it were held that a Court in dealing with such admissions adjudged the things treated .as facts to be facts. It is not a judgment by the Court that they exist. It is an admission by the party demurring that, for the purposes of that case, they exist. The judgment proceeds upon the hypothesis that they exist, but it is not an adjudication that they do exist. The hypothesis binds no person but the party to the case, otherwise a concession made in one case would preclude the whole world from disputing it. In Farnan’s case we quoted sec. 46 from the pleadings and then showed that it had no application to the controversy; and we obviously, therefore, did not make it the basis of the decision of that litigation.

We hold, then, ñrst, that the term of the appellant as Visitor of the Jail was for two years; secondly, that- the Mayor had no power to remove him without cause, unless sec. 46 of Art. 1, City Code of i8p3, authorized such a removal; and thirdly, that sec. 46 has been repealed and is no longer in force. It follows, therefore, that the order refusing the writ of mandamus must be reversed and the cause will be remanded that the writ, as prayed for, may be issued.

(Decided December 21st, 1898.)

Order reversed with costs above and below, and cause remanded that the writ may issue as prayed.