Hooper v. Creager

35 A. 967, 84 Md. 195, 1896 Md. LEXIS 112

• Court: Court of Appeals of Maryland
• Decided: November 19, 1896
• Status: Published

Opinions

McSherry, C. J.,

delivered the opinion of the Court.

It is not necessary to go into any extended statement of the facts presented by this record, nor to discuss the many interesting and ably argued questions which its pages set forth. With all, except one, of the positions, taken by the eminent and distinguished Judge who heard this case in the Court below, we, in the main, agree, though we are not to be understood as adopting them ; but upon one vital inquiry which was probably not strenuously pressed before him, we reach a different conclusion. With the policy of the municipal legislation whose validity is assailed in these proceedings this Court has no concern. If valid, its wisdom is not for us to question. If invalid, it becomes our plain and imperative duty to declare it so.

The ordinance of the Mayor and City Council, which is attacked on the pending appeal, was passed over the veto of the Mayor, and by its provisions the City Tax Collector was made elective by the joint convention of the two branches of the City Council. Before the adoption of the ordinance that officer and others had been nominated by the Mayor, and with the advice and consent of a joint convention of the two branches, appointed. 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.

The power to pass ordinances regulating the manner of making appointments to office is a power to regulate the method by which appointments shall be made by the depository of the power charged with the duty to make them, but is not a- power to delegate to some one else or to a fraction of that depository the authority to do the thing which the depository itself alone was commissioned to do. The limits and the scope -of the power to make appointments of municipal officers were originally defined in the legislation that has been compressed in sec. 30, Art. 4, Code Pub. Local Laws. This section is not new legislation creating and demarking for the first time the power, but it comprises portions of two distinct Acts of Assembly passed with an interval of more than eleven years between the dates of their adoption, the one being supplementary to the other. But when they were codified, the last in point of enactment, which when enacted was simply a supplement to the former, was placed first in sec. jo, and the first in date of passage,' and which when passed created the power, was placed second in order in the body of the section. This circumstance, however, cannot alter the construction which ought to be placed on sec. jo, as found in the Code, or make it denote precisely the reverse of the-meaning which its component parts as originally enacted obviously bear.

As the fundamental question is, whether the ordinance that strips the Mayor of Baltimore City of all participation in making appointments of municipal officers-is a valid exercise of the powers, or of any of the powers, given by the charter of the city, it will not be amiss first to quote the section of the Local' Code under which it is claimed the power to pass the ordinance does exist, and then to transcribe the two Acts of Assembly which are embodied in and make up that section. Sec. 30, Art. 4, Local Code, reads as follows: “They may pass ordinances regulating the manner of appointing persons to office under the corporation, which they are or may be authorized by law to appoint, but unless such ordinances be passed the Mayor shall nominate, and by and with the advice and consent of a convention of the two branches of the City Council, shall appoint all officers under the corporation, except, &c.” Sec. 2, of ch. 148, Acts of 1817, provides: “And the Mayor of the City shall nominate, and by and with the advice and consent of a convention of the two branches of the City Council, shall appoint all officers under the corporation, except, &c.” And the Act of 1828, ch. 114, declares: “ That the Mayor and City Council may pass ordinances regulating the manner of appointing persons to office under said corporation, which they are now or may hereafter be authorized by law to appoint, anything in the second section of the Act to which this is a supplement, to the contrary notwithstanding.”

Now it must be conceded, because it is too plain for denial, that if the Act of 1817 had been incorporated in the Code, without qualification of any kind, and just as the Act stood on the day of its adoption more than three quarters of a century ago, appointments to city offices could only be made by the Mayor with the advice and consent of a convention of the two branches of the City Council. Under that Act the Mayor and the City Council were the depository of the power to make appointments. To those two constituent, but separate and independent departments of the city government, was the power of making appointments confided. But more than this ; not only was a power thus conferred, but the method of its exercise was prescribed.

The Mayor nominated and by and with the advice and consent of the convention appointed. This was not a power given to the municipality as a mere corporate entity, to be exercised like other corporate powers in the usual and ordinary way; but, having been given to the Mayor and to the City Council distributively, the manner of its exercise by them was specially and distinctively declared. The execution of the power was placed in the Mayor and a convention of the two branches, but not in the branches separately. The method or manner of its exercise was therefore specifically pointed out. Obviously, so long as that provision remained unchanged by the Legislature, no other or different method of exercising the power to make appointments could have been resorted to by the municipality, and neither the Mayor nor the City Council could have invaded the distinctive province of each other. What, then, was the effect of the Act of 1828? Did it change the depository of power, or merely authorize the same depository to exert the power of appointment in some other manner which the municipality might by ordinance prescribe ?

This Act of 1828 was passed at the instance and upon the request of the Mayor and City Council. A resolution requesting the Delegates from the city in the Legislature to procure an amendment to the charter empowering the corporation to pass ordinances regulating the manner of appointing officers was presented to the General Assembly, and conformably to that request the Act, a draft of which accompanied the resolution, was adopted. The Act of 1828 purported to be a supplement to the Act of 1817, and provided, as stated before, that the Mayor and City Council might pass ordinances regulating the manner of making appointments to the offices which '‘they'd that is, the Mayor and City Council, are or may hereafter be by law authorized to make, “ anything in the second section of the Act to which this is a supplement to the contrary notwithstanding.” This Act gives a power, not to make appointments, but to regulate the manner of making such appointments as “ they,” the Mayor and the City Council, are or may hereafter be by law authorized to make; and it does this notwithstanding there is “anything” to the contrary as to their power to regulate the manner of appointments contained in the Act of 1817, but it neither in terms nor by implication interferes with the depository of power to make appointments. On the contrary, the Legislature, recognizing that both the Mayor and the City Council, as separate, co-ordinate branches of the municipal government, had been clothed with the power to make appointments of municipal officers, was, in the Act of 1828, careful to provide only a subsidiary power by which the manner of making appointments might be regulated as to such officers as they, the Mayor and City Council, not the municipality, but the Mayor and the City Council as separate branches of the municipality, then had or might thereafter have the power to appoint.

In effect, the Act reaffirms the existence of the power of the Mayor and of the City Council, and then gives to the municipality in its corporate capacity the further power to pass ordinances, whether with the approval of the Mayor or over his veto is wholly immaterial, whereby the manner of making appointments by the Mayor and the City Council, each having a voice, might be regulated. It was manifestly not the design of the Act of 1828 to put it in the power of the City Council to strip the Mayor of all participation in making appointments, any more than it was contemplated that under the power to regulate the manner of appointments both the Mayor and City Council could, by ordinance, divest themselves of that power altogether and delegate it to a total stranger.

The language of the Act of 1828 is explicit. Bearing in mind that when that Act was passed the Mayor nominated and a convention of the two branches assented tó all appointments, and that, therefore, both the Mayor and the City Council, as distinct entities, were vested with the power of appointment, it seems obvious that when the Act of 1828 gave authority for the adoption of ordinances intended to regulate the manner of making appointments which they, the Mayor and the City Council, were confessedly then empowered by law to make, it did not take away the joint power antecedently possessed to appoint, but simply provided that some different method of exercising that same joint power might be resorted to. But if this were not abundantly clear, it is certainly made so when the thing authorized by the Act to be done is considered. Now, the thing authorized by the Act to be done was to pass ordinances regulating the manner of appointing persons to office; and it comes to this inquiry : Does the authority to regulate the manner of doing a thing of itself take away the antecedent power to do the thing? The power to do a thing must precede its exercise. It may be given coupled with a defined method of execution, or it may be given simply and nakedly without an accompanying modal regulation. But if, afterwards, in the one instance, the defined method of execution be altered, or in the other a modal regulation be added, yet in neither event would the power be thereby necessarily destroyed—the power to do the thing would remain though the manner of doing it might be changed.

To briefly restate the proposition : The Act of 1817 did two things. It first gave to the Mayor and to the City Council jointly the power to make appointments; secondly, it prescribed the mode or manner in which that power should be exercised. The Act of 1828 did but one thing. It did not disturb the power to make appointments, but it did confer authority to prescribe by ordinance a new or different manner for the exercise of the powers—the power still residing where the Act of 1817 had reposed it.

Now, then, the power of the Mayor and City Council to jointly make the appointments under the Act of 1817 was not destroyed by the Act of 1828, unless the authority to regidate the manner of exercising the power took away the power itself.. It could only do this upon the assumption that the power to regulate means the power to destroy. That such is not the meaning of the term in Maryland has been determined more than once. In State v. Mott, 61 Md. 297, an ordinance of the city of Baltimore, whereby the burning of lime within the city limits was prohibited, was sought to be upheld under that provision of the charter which gave the city authority to “regulate the places for manufacturing soap and candles, &c., and where every other offensive trade is carried on.” This Court said: “ The power delegated is simply to regulate the places, where they are carried on, and not to forbid their being carried on, or to destroy them altogether.” And in State v. Whitman, 80 Md. 410, it was held that a power to regulate the liquor traffic was not a power to destroy the trade. See also, Brown v. O’Connell, 36 Conn. 432.

As illustrating the correctness of the construction placed on the Acts of 1817 and 1828, in this opinion the case of Commonwealth Ex rel. Graham v. Crogan, Pa. St. 26 At. Rep. 697, may be cited. Information of John M. Graham, district attorney of Luzerne County, was filed, giving the Court to understand that Michael Crogan had exercised the office of street commissioner of the city of Wilkes-Barre without warrant of law. The defendant had been appointed street commissioner of the city of Wilkes-Barre by the action of the City Councils. The position of the relator was that a valid appointment to the. office required the concurrent action of the City Councils and the Mayor. The title of the defendant depended on this question. The charter of the city gave the Mayor and Councils the power “ to appoint and remove such officers * * * * as they may deem necessary to * * * * enforce the ordinances and regulations of the city. The Supreme Court of Pennsylvania said: “ Neither the Mayor nor the Councils can make the appointment any more than they could make the ordinances the officers are appointed to enforce.” • And in speaking of the charter the opinion proceeds : “It empowered the Mayor and Councils to create additional offices and to fill them. In the exercise of this power they have created a single office for the entire city, called street commissioner, and the - mere fact that the office was created by them is conclusive upon the necessity for their concurrent action in' order to fill it. It is needless to add that the city ordinance, relied on as authority for the appointment by the Councils alone, .cannot change the law or deprive the Mayor of the powers which the law gives him without his consent.” And judgment of ouster was entered.

When the codifiers of i860 consolidated the Acts of 1817 and 1828, in sec. 25 of Art. 4, Code of Pub. Local Laws, they placed the provisions of the Act of 1828 first, and Mr. Poe, in the Code of 1888, in sec. 30, of the same Art. of the new Code, followed his predecessors. But this circumstance can make no possible difference in the meaning of the Acts as codified. Both Acts are in the section, and when they were brought together there, their meaning was precisely the same -as when they stood separately and apart. The power of the Mayor and of the City Council as two independent co-ordinate branches of the city government to make appointments of officers is still retained in the section, as conferred by the Act of 1817 ; the mode of making such appointments designated in the Act of 1817 is still there, and may be exercised, unless the authority given by the Act of 1828 (which is also there) to regulate the manner of appointments, which “they,” the two departments, the Mayor and the City Council, are authorized by law to make, is validly exerted. To give to these two statutes when codified a meaning precisely the opposite of the one they had before they were codified, merely because the one passed last in order of time happens to be transcribed first in the same section of the Code which contains them both, would invoke, or rather invent, a new and a very dangerous rule of interpretation. Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention which may be collected from the cause or necessity of making the Act, or from foreign circumstances; and when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute. Johnson v. Heald, Ex. 33 Md. 352.

Now, it cannot be assumed, in the face of the explicit language used in the Act of 1828 and literally reproduced in sec. 30 of Art 4 of the Code of Local Laws, that the Legislature ever intended to give to the municipality of Baltimore the power to pass ordinances delegating to any one the right to name the many important officers that the efficient discharge of the public trusts committed to the corporation may require. And yet, if it be conceded that the Mayor may, under sec. 30, be deprived of all power as an integral part of the appointing power, because the power to regulate the manner of appointments means if the City Council so enacts over his veto an abrogation of his antecedent power to participate therein, there is no escape from the conclusion that there can be by ordinance passed, with or without his approval, a valid delegation of the appointing power to one branch of the City Council; and if to it, then likewise to a single individual not even a member of the city government. Such a construction means that there may be a lawful surrender of the power to appoint, and under the guise of regulating the manner of appointment, a transfer of the whole power itself to an alien. And why not ? If the statutes do not place this power in the Mayor and the City Council to be executed by them, but gives them unlimited and unrestricted authority to pass any regulation they may see fit as to the manner of making appointments, there is no line at which logically you must halt and say the ultimate limit has been reached beyond which the delegation of the power of appointment shall not go. That such a surrender or transfer to another of the power to appoint is not likely to occur may be probable, but this probability is no answer to the argument that the construction contended for irresistibly establishes its possibility. The bare possibility that such a result may flow from a judicial construction of a statute is sufficient to. demonstrate the utter fallacy of the interpretation, especially when there is another and a different construction which is far more reasonable and which leads to no such serious consequences. A construction fraught with consequences so pernicious, as well as so dangerous to the order and good government of a great city, must be rejected, unless the plain, imperative words of the Act of Assemby are open to no other meaning at all.

Perhaps it may not be out of place before concluding this opinion to-cite a few cases in which this Court has held that for the purpose of ascertaining the meaning of a section or provision of the Code, the original Act of Assembly embodied in the section or provision under consideration may be consulted. Thus in the recent case of Miles v. Stevenson, So Md. 366, .it was insisted that mandamus was not the proper remedy to compel County Commissioners to' restore a road supervisor to the office from which they had removed him, because sec. 81, Art. 5 of the Code, giving to every party aggrieved by an order passed by the County Commissioners, a right of appeal therefrom to the Circuit Court, furnished an appropriate remedy by appeal. We went into an examination of the original Act from which the section was codified, and finding that the Act when adopted, had reference only to cases relating to public roads, and that the section providing for an appeal to the Circuit Court was, when passed, confined to appeals in such proceedings, we held that an order-removing a road supervisor from office was not such an order as under that section of the Code could be reviewed- on appeal by the Circuit Court, though the terms of the section taken by themselves in the place where found in the Code, and without reference to the original Act by which they were first adopted, were probably broad enough to embrace just such an order. See also Maurice v. Worden, 52 Md. 294; State v. Popp, 45 Md. 432; Dorsey v. Garey, 30 Md. 499.

For the reasons given, the ordinance in question is, in our opinion, ultra vires and void. As a consequence the appellee was not lawfully elected City Tax Collector, and hence the writ of mandamus, which issued, directing the Mayor to administer to the appellee the oath of office, should not have been ordered. The order appealed from must therefore be reversed, and the petition ■ for a writ of mandamus must be dismissed.

(Decided November 19th, 1896).

Order reversed and petition for writ of mandamus dismissed, with costs above and below.