Heiskell v. Mayor & City Council

4 A. 116, 65 Md. 125, 1886 Md. LEXIS 16

• Court: Court of Appeals of Maryland
• Decided: March 9, 1886
• Status: Published

Opinion

Stone, J.,

delivered the opinion of the Court.

It appears from the agreed statement of facts, filed in this case, that the appellant, Heiskell, was in February, 1883, duly appointed Eire Marshal of Baltimore City, under an ordinance passed by the Mayor and City Council, and that he qualified as such Eire Marshal, and entered upon the duties of the office, and continued to discharge the same, until about the 1st of April, 1884.

That by an ordinance passed by the Council and approved by the Mayor in March, 1884, the ordinance passed in 1883 and above referred to, creating the office of Fire Marshal, was repealed, and a Board of Fire Commissioners created in its stead. That the Board of Eire Commissioners having been duly appointed, demanded possession of the office occupied by the Fire Marshal, but the appellant refused at first to deliver the office to said Board. But the officers and men, comprising the Eire Department, having submitted to the Eire Commissioners, the appellant surrendered the office to them under protest.

The appellant claims that the ordinance of 1883, under which he was appointed Eire Marshal for two years, was. not repealed-by the ordinance approved March, 1884, and that as he was ready and willing, and offered to perform the duties of Fire Marshal for the whole time of two years, for which he was appointed, he claims his salary for the balance of the term, or for some part of it.

It will be perceived from this statement, that the principal, and indeed we may say, the only question in this case, is whether the ordinance of 1883, creating the office of Eire Marshal was repealed by the ordinance of 1884, substituting a Board of Fire Commissioners for the Fire Marshal. If the ordinance of 1883, was legally repealed by the-action of the Mayor and City Council in 1884, there is an end of the appellant’s case-.

The whole difficulty arises from the action of the First Branch of the City Council. If the repealing ordinance did not legally pass that Branch it was in fact- no ordinance. If it did so pass that Branch, it is conceded that it is valid, as there is no dispute that it properly passed the Second Branch, and was approved by the Mayor.

The question, whether the repealing ordinance was passed by the First Branch, depends upon the force and effect of the rules of procedure adopted by the First Branch, and which were in force at the time of the passage of the repealing ordinance, or we may more properly say, of one of the rules of procedure.

That rule is as follows :

“If at the hour of meeting a quorum be not present, the absent members may be sent for, if required by a majority of those present, or an adjournment may be made to the following day; but a quorum being present, (two-thirds of the members being necessary,) the roll shall be called by the clerk, commencing with the president, and proceeding with the members representing the wards in numerical order.”

- Waiving any objection that may be made to the wording of this rule, we will treat it as a rule duly made by the First Branch, at its first session, fixing and declaring that two-thirds of the members of that Branch should constitute a quorum for the' transaction of business, and not a less number ; we may go a step further and take it for granted that when they passed that rule the members of that Branch supposed that they had the power to enact such a rule, and that they conceived that it was, until repealed, obligatory upon them, and the question then is squarely presented, “ had the First Branch the legal right to determine what should constitute a quorum ?”

The appellee, a municipal corporation, was created by Act of the General Assembly. Of the power of the General Assembly to fix and determine what should be a quorum, there can be no possible doubt. This power the General Assembly has several times exercised. Thus in 1796 it provided that a quorum of the City Council should consist of three-fourths of the members; subsequently the Legislature fixed the quorum at two-thirds; but, finally, in 1868, in amending the law relating to the City Council, nothing was said as to what should he a quorum, and so the law stood, at the time the repealing ordinance was passed.

But when the Legislature omitted, to exercise its undoubted prerogative, to declare what should constitute a quorum, it by no means intended to delegate that most •important power to the Council itself. A municipal corporation is created for public and political purposes, and as to these corporations, Mr. Dillon says, “ It is a general and undisputed proposition of law, that a municipal corporation possesses and can exercise the following powers, and no others: first, those granted in express tvords; second, those necessarily or fairly implied in, or incident to, the powers expressly granted ; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power, is resolved by the Courts against the corporation, and the power is denied. They can exercise no powers but those which are conferred upon them, by the Act by which they are constituted, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties,and the accomplishment of the purposes of their association.”

■ Now it has .been urged, in behalf of the appellant, that the Legislature having granted to this municipal corporation the right, “ to settle' their rules of procedure,” this power includes the right to fix the quorum,

“Rules of procedure ” are rules made by any legislative body, as to the mode and manner of conducting the business of the body. They are intended for the orderly and proper disposition of the matters before it. Thus, what committees, and upon what subjects they shall he appointed ; what shall be the daily order in which the busi-. néss shall be taken up ; in what order certain motions shall be received, and acted’ upon, and many other kindred matters are proper subjects of the rules of procedure. These rules operate no where except in the legislative hall of the body that adopts them, and in this country, where, what is called in England standing orders, are almost unknown, expire at the end of the session.

But these rules of procedure never contravene the statute or common law of the land. When the Constitution of the United States gave to each house of Congress, and the Constitution of the State of Maryland to each house of the General Assembly, the right to determine its rules of proceeding, it was never held for a moment that such a right included the power to change any existing statute or common law; much less can a municipal corporation claim the right under the guise of permission to frame their rules of procedure, such unlimited power. This surely must be conceded by every one ; and being so conceded, the next question for us to consider is whether the right to fix a quorum, does contravene any existing law of the land.

As a general rule in this country the Constitutions of the several States fix upon what shall be a quorum in the legislative assemblies. So as a general rule, perhaps, the power that creates a municipal corporation fixes the number of the members that shall constitute the quorum. The quorum of a body may be defined to be that number of the body, which, when assembled in their proper place, will enable them to transact their proper business, or in other words that number that makes the lawful body, and gives them the power to pass a law or ordinance.

But when in the case, like the present, of a municipal corporation, the statute law creating it is silent, as to what shall constitute a legal assembly, the common law, both in England and in this country is well settled, that the majority of the members elect shall constitute the legal body. In Blacket vs. Blizard, 9 B. & C., 851, the Court recognize the general rule of law prevailing in England, “ that a public trust committed to a definite number of 'persons should be executed at a meeting where a majority of that number is present.” So in this country, Mr. Dillon states that, “ The common law rules as to quorums and majorities established with reference to corporate bodies, consisting of a definite number of corporators, have in general been applied to the common council, or select governing bodies of our municipal corporations where the matter is not regulated by charter or statute.” 1 Dillon on Mun. Corp., 278.

Indeed the appellant concedes that in the absence of a statute fixing a quorum, a majority of any body consisting of a definite number, is necessary to constitute a quorum; but he insists that the majority, when so organized, may make more than a majority necessary to constitute a legal body.

But if we concede, as we must do, that where the charter is silent, the common law ■ fixes the majority as the legal body, the case of the appellant is at an end. Eor the body itself to attempt to fix a greater number, is for the body to attempt to change a rule of the common law. It is tantamount to saying, that, although a majority of a City Council is a legal body, and has all the powers, and all the rights that the legislative and executive branches of the State government can give it, such majority can be shorn of its rights and powers and rendered powerless to act, by the action of one Branch. That would make one part only of a municipal corporatiomequal, in that respect at least, to the Legislature. But it is well established in this State, tha even a statute law (much less a rule of procedure) that seeks to alter a principle of the common law, must do so-in plain and direct terms. “It is not to be presumed” (says this Court in 12 Md., 475,) “that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced.”

And again, in Day vs. Allender, 22 Md., 527, this Court quoting from Dwarris on Statutes, says, “A statute made in the affirmative, without any negative expressed or implied, does not take away the common law.” Applying these rules of construction, it is clear that the amended charter of the city, when it omitted to fix the quorum, did not intend to change or alter in any way, the existing common law, that fixes the majority as the quorum. Again, if the First Branch of the City Council has the power to make the quorum greater than the common law makes it, that is to make it two-thirds, it follows, necessarily, that it would have' the power to make it three-fourths, or declare that, before it should transact any business, every member must be present. Indeed, it seems to us, that if we concede to that Branch, the power to fix the quorum at a greater number than the majority, we must concede to it the power to fix it at less than a majority, and fix the legal body at one-third. But the boobs are full of cases deciding, that where the corporation consists of a definite number, and the charter is silent, less than a majority is powerless to act, and there is no case to the contrary except, perhaps, in some English cases, where the corporations claim, under immemorial usage. But such cases, says Mr. Dillon, 1 vol., 324, are not applicable here.

The case in 16 Iowa, 284, to which we have been referred, throws no light on this subject. That was the case of a private corporation, and the provisions of the charter, are not given, but the fair inference from the whole case is that the three directors who passed the order therein mentioned, were in fact a majority of the board.

The City Council is the creature of the Legislature, and if it can exercise no powers not expressly granted to it, neither can it deprive itself by its own action of the powers that are granted to it. We have shown before, that a majority of the Council constituted the legal body, and competent to do every act that the Council could do. It would be an anomaly indeed, if the Council itself could s deprive itself of the right that it admittedly had. No municipal corporation can either enlarge or diminish its own powers.. That is more than the Legislature of the State can do for itself. The latter derives all its powers from the Constitution, and the former all its powers from the Legislature. By the consent of the legal body, which is the majority, either may refrain from exercising any power it rightfully has, but that is all. But a majority, being the= legal body, cannot delegate its rights and powers to a minority. Such would he 'the practical effect of this two-third rule. It would give to one more than a third of the whole number of councilmen elected, the power to prevent the passage of every ordinance, and thus entirely block the business, of the Council.

(Decided 9th March, 1886.)

It may be argued that the Legislature had done this. But the question before us'is a question of power, not of expediency. The Legislature had the-power to do that, and the only conclusion we c.an draw from their declension to exercise it, is that they deemed it inexpedient to make such a rule, not that they intended to delegate it to the Council.

We are 'therefore of opinion that the rule adopted .by the First Branch of the City Council, was not a rule of procedure, but a rule affecting' the legal rights and powers of the Branch, and which was entirely unauthorized by the charter, and therefore null and void; and that the ordinance .of 1884, above cited (the repealing ordinance), was a valid ordinance, and the judgment below must be affirmed.

With this view of the case, it is unnecessai’y to advert to the other questions raised in the argument.

Judgment affirmed.