State ex rel. Mayor of Baltimore v. Kirkley

29 Md. 85, 1869 Md. LEXIS 1

Opinion

Miller, J.,

delivered the opinion of the court :

The main subject of inquiry, and the question upon which this case turns is, had the appellees, at the time this proceeding was instituted, authority to act in the capacity of “ The Building Committee of the new City Hall,” and make the contracts and do the other acts referred to in the petition for the writ of mandamus ?

It is conceded no such office existed, either under the laws of the State or the Ordinances of the City, prior to the passage of Ord. No. 58, approved the 25th of September, 1865. The first section of that Ordinance provides “ that the Mayor shall appoint, subject to the approval of the City Council in convention, four persons,” who with the Mayor shall constitute a Board of Commissioners, to be styled “ The Building Committee of the new City Hall.” By subsequent sections *the powers of these officers are defined, including the power to make contracts for labor and materials for the erection of the building. By section 9 it is enacted : “ That in order to fneet the disbursement required by this Ordinance, the Commissioners of Finance, be and they are hereby authorized and directed to issue $500,000 of city bonds, or so much thereof as is necessary, from time to time, bearing six per cent, interest, payable semi-annually, and redeemable at the pleasure of the Mayor and City Council of Baltimore, at any time after the 1st of July, 1893, and dispose of the same at market price, and deposit the proceeds with the City Register, who shall set aside the same as a fund to be applied towards the erection of a new City Hall, as herein provided for ; ” and by section 11 it is enacted and ordained : “ That this Ordinance shall have no effect until the ninth section shall be confirmed and ratified by the General Assembly of Maryland.”

From this language it is too plain for argument that the whole Ordinance, including the power to appoint these officers, was to remain inoperative until some thing was done by the Legislature of the State to give it vitality. It is not, however, open to objection on this ground, for this court has decided that a municipal corporation may pass an Ordinance, within the limits of their delegated powers, contingent as to its operation and effect, on the existence or occurrence of facts germane to its subject-matter. “ A valid law may be passed to take effect upon the happening of a future contingent event, even where that event involves the assent to its provisions by other parties ; and the same principle applies to an Ordinance passed by a municipal corporation, within the legislative powers delegated to the corporation, provided it does not appear that the contingent event is foreign to the subject-matter of the Ordinance, and wholly unconnected with the consideration of the public convenience, upon which alone the Ordinance must be based.” Balt. v. Clunet, 23 Md. 469.

*To ascertain the meaning of the terms used in section 11, and the design and intention of the framers of the Ordinance, in adopting this restriction upon its operation, resort must be had to the same general rules of construction which govern the interpretation of Acts of the Legislature ; such rules are equally applicable to the legislative acts of a municipal corporation, passed within the scope of its delegated powers. Balt. v. Howard, 6 H. & J. 382; Balt. v. Clunet, 23 Md. 468. The courts cannot presume an intent, but must collect it from the words of the Act and the cause or necessity of its passage ; they cannot correct mistakes nor supply omissions. “We are not at liberty to imagine an intent, and bind the letter of the Act to the intent ; much less can we indulge, m the license of striking out and inserting and remodeling, with a view of making the letter express an intent which the statute, in its native form, does not evidence.” Alexander v. Worthington, 5 Md. 485. “ When the Legislature has used ivords of a plain and definite import, it would be very dangerous to put upon them a construction, which would amount to holding that the Legislature did not mean what it has expressed.” Dwarris on Statutes, 703.

It was undoubtedly within the powers delegated to the city to provide, by Ordinance, for the erection of this building, and to appoint and create the necessary agents and officers to superintend its construction ; but it is conceded that money for that purpose could not be raised by the issual of city bonds, unless power to that end was granted by the Legislature. Instead of first obtaining the necessary grant of power, and then passing Ordinances in execution of it/ the Council who passed this Ordinance themselves framed and adopted, in section 9, a plan for issuing the bonds, limiting their amount, fixing the time after which the city might redeem them at its pleasure, and the rate and times of payment of interest, and then made the effect and operation of the whole Ordinance to depend upon the sole contingency of the confirmation *and ratification of this plan by the Legislature. Their right to do this is unquestioned, and it was eminently proper that the members of the City Council, representing their constituents, should be the judges of the amount and mode of taxation to be imposed, for this purpose, upon the taxpayers of the city. Giving to the language of section 11 its plain and ordinary import, we cannot infer an intention that the Ordinance was to take effect whenever the Legislature should grant power to raise money by issuing bonds for such an amount, and on such terms as the Act bestowing the power might prescribe. The intent must be collected from the words, and we cannot infer that those who adopted this Ordinance would have done so on any other terms than those expressed, or would have been willing that their constituents should be taxed for any other amount, or in any other mode, or at any other time. They had the right to fix their own conditions for the operation of the Ordinance on their constituents, and have done so in plain and emphatic language. They have said, 'no part of this Ordinance shall be effective until its ninth section shall be confirmed and ratified by the Legislature. They have not said it shall become operative when the ninth section shall be confirmed and ratified, or when the, General Assembly shall grant power to issue bonds on different terms and conditions, and we can add no such clause to the condition thus plainly expressed. Some Act of the Legislature confirming and ratifying its ninth section was, therefore, essential to the lawful exercise of the power to appoint the officers provided for in the first section of this Ordinance.

With regard to the mode of confirmation, there is little difficulty if we look to legislative practice in such cases. Ordinances precisely similar have frequently been submitted to the Legislature for confirmation, and the practice established by numerous precedents cited in argument, is for the confirming Act to recite the Ordinance in its very words, then to enact that the same be ratified and confirmed, and grant the power to carry it into effect. We do not mean to say this is the only mode in which such confirmations can be made, for if the intent to confirm can be plainly found in the occasion, the subject matter, and the language of the Act relied on as confirmatory, it will amount to a ratification even if the terms “ confirm and ratify ” be not used. In Dulany v. Tilghman, 6 G. & J. 473, where it was insisted a deed had been confirme4 by an Act of the Legislature,- the court say : “ If we coul4 be convinced that such was the design of the Legislature, it must be carried into effect ; but their intention must be ascertained, not by remote inference or vague conjecture, but collected from the nature of the application made to them, and the terms they have used in granting it.”

With this exposition of the Ordinance, and the same rules of construction as our guides, let us examine the Act of 1866, ch. 1, which is alone relied on as the required legislative action. Its title is “ An Act authorizing the Mayor and City Council of Baltimore, to build a new City Hall;” and the only provisions in the body of the law are these : “ That for the purpose of building a City Hall, and such other improvements connected therewith as may be deemed necessary, the Mayor and City Council of Baltimore, be and they are hereby empowered to issue City bonds in certificates of not less than $100 each, redeemable in fifteen years, bearing six per cent, interest, payable quarterly, and transferable as other City bonds, to an amount not exceeding $600,000, and shall provide a sinking fund of two cents on every $100 of assessable property annually, for the redemption of the bonds so authorized to be issued : provided, said City Hall shall not be commenced within one year from the passage of this Act.” Not only is there no reference either in the title, or the body of the law, to the Ordinance of 1865, and an entire absence of any words of confirmation or ratification, but the provisions of the law, in every material respect, differ from those of the ninth section of this Ordinance. It authorizes the raising of a larger sum, makes the bonds unconditionally redeemable in a much *shorter time, imposes an obligation to provide a sinking fund by an annual tax for the redemption of the debt, and the whole law is subject to a proviso that the work shall not be commenced within one year from the passage of the Act. It is true both the law and the Ordinance refer to the same subject, and the former is a grant of power to issue bonds, and this, with precedence in point of time, of the Ordinance to the law, are the only circumstances from which confirmation or ratification can be imagined. But to infer such intent from these circumstances would be to draw remote inferences and indulge in vague conjecture. Every conceivable purpose of the Legislature, so far as appears from the face of the Statute, is gratified by con struing this Act not as confirming, ratifying, or consenting to any provisions of the Ordinance, but as an independent grant of power to be exercised by future conformable legislation on the part of the City Corporation. Such, is its natural construction, and such, in our opinion, was the design of the Legislature in passing it. But if further reasoning on this subject be needed, let us suppose the Act had existed before the Ordinance, and then ask the question, would an Ordinance directing bonds to be issued as provided in this ninth section, be a valid execution of the power granted by the Act ? Unless this question can be answered in the affirmative, it cannot be said the Act confirmed and ratified this ninth section, and no such answer can be given without disregarding long established and well settled principles of law regulating the execution of delegated powers.- In such a case the mode is the measure of the power.

There being then no confirmation or ratification of its sec. 9, the whole Ordinance, by force of the restrictive terms of its eleventh section, was of “ no effect,” and yet, without any repeal of this restriction or re-enactment of the Ordinance, and consequently when no such office existed, the Mayor, with the approval of the Council in Convention, in May, 1867, appointed the appellees as members of this committee, and under color of this appointment, they now assume to act in *discharge of the duties of their supposed office. At this point, we might rest our decision by stating the obvious conclusion, that this unauthorized appointment to an office which had no existence, was a mere nugatory act, conferring upon the appointees no authority whatever. But other views which demand consideration, are presented in the answer, and the opinion of the court below, and have been earnestly pressed upon our attention by the forcible and ingenious arguments of the counsel for the appellees.

It is said the appointment itself, being the act of the corporation through its executive and legislative departments, and within the scope of its corporate powers, was, in contemplation of law, a removal of the restriction contained in its eleventh section, and operated to make the Ordinance effective. But no such effect can, in our opinion, be attributed to this Act without subverting essential provisions of the City’s Charter. The City Council consists of two Branches, composed of different members, elected for different periods, and when acting legislatively every Ordinance, before it becomes a law, must be passed by each Branch, and approved by the Mayor, or passed over his veto. They have power to pass Ordinances regulating the manner of appointing to office, and, if no such Ordinances be passed, the Mayor nominates, and, with the advice and consent of a Convention of the two Branches, appoints all officers under the corporation whose appointment is not otherwise provided for by the Charter. Code of Pub. Local Laws, Art. 4, sec. 25. A Convention of the two Branches can neither pass or repeal an Ordinance, and it would be a startling anomaly to hold that an unauthorized act of the Mayor and the two Branches in Convention, exercising this appointing power, could validate itself by operating simultaneously aS a legislative proceeding effecting a repeal of this restriction in the Ordinance of 1865, and thereby creating the office, the existence of which that restriction suspended. ,

But it is also urged that the subsequent Ord. No. 48, approved July 23rd, 1867, did, in law, as effectually confirm *or re-enact the Ordinance of 1865, as if it had done either in express terms. This Ordinance of 1867, is entitled “ An Ordinance supplementary to” that of 1865, and provides that the bonds to be issued under the ninth section of the former, shall bear interest payable quarterly, and be redeemable “ at the pleasure of the corporation at any time after the 1st of July, 1882,” authorizes an additional $100,000 of bonds to be issued on the same terms, imposes a tax of two cents on the $100 as a sinking fund for the redemption of the debt, and then repeals so much of the ninth section of the former Ordinance, as may be in conflict with the provisions of this supplement. It is not necessary for the purposes of this case, to determine whether this second Ordinance is a valid execution of power delegated by the Act of 1866, or whether, if it had in express terms re-enacted the Ordinance of 1865, or repealed the restriction of its eleventh section, such re-enactment or repeal would have so operated, in the absence of any reference to the Building Committee, or ratification of their previous appointment, as to make valid the intervening unauthorized appointment of the appellees, for, assuming argumenti gratia, such would in that event have been its effect, it is sufficient to say this Ordinance does not, nor does it profess to make such re-enactment or repeal. It is apparent, from its face, from its professing to be a supplement to that of 1865, that it was passed upon the same erroneous presumption upon which the appointment proceeded, viz: that the Ordinance of 1865 was then in force, -and had been made effective by the passage of the Act of 1866, and hence its purpose was not to re-enact or do any thing by which the former Ordinance should be made effective, but treating it as a valid law, to supplement its provisions by new legislation so as to make its ninth section conform to the Act of 1866, and to repeal only such parts of it as were inconsistent with the Supplement. These views dispose also of' the argument founded upon an application to this case of the rule of construing statutes in ■pari materia : for, if the Ordinances of 1865 and 1867, and the Act of 1866 had all *emanated directly from the same legislative source, and were all Acts of the Legislature, and the appointment had been made by the Governor and Senate, the same result would follow. A law which, by its own terms, is to have no effect until the happening of a future contingent event, cannot be made effective before the event happens by any Acts or series of supplements passed upon the assumption that the event has happened, and that the law is in force. All such Acts, instead of possessing any curative powers, merely multiply errors.

Nor is this a case to which the doctrine of estoppel by acquiescence, and by acts in pais of ratification can be applied. There may be cases in which a municipal corporation by such means, will be held to have confirmed the acts of a regularly appointed agent or officer beyond the scope of his special authority, provided the corporation had power to authorize such acts to be done, but in such cases the acts of ratification_ “ should be direct, explicit, unequivocal and with full knowledge of the facts.” Baltimore v. Reynolds, 20 Md. 14. But we have been referred to no authority which sustains the position, that an office can be created, or an illegal appointment to an office which does not exist be legalized, by such acts of ratification or acquiescence. The establishment of such a doctrine would lead to mischievous and dangerous results, and it cannot receive the sanction of this court.

It is decided by the court below that mandamus is the proper remedy, if the appellees had no authority to act in the capacity they have assumed. In this view of the law we entirely concur. But it has been correctly urged that in this State the writ of mandamus is held to be, not a writ of right grantable as of course, but only at the discretion of the court to whom the application is made, and that this discretion will not be exercised in favor of applicants, unless some just and useful purpose may be answered by the writ. State v. Graves, 19 Md. 374. And in this connection it has been argued, with much force, that the city is here impeaching its own acts, asserting the ifullity of its own appointments *made under its own actual direction, for its service and benefit, and confessedly within the scope of its delegated power ; that the appellees accepted the office bona fide, and in the full belief that the original Ordinance was valid and operative; that there is no charge that the contracts were made improvidently, uneconomically, or in bad faith, or that they are otherwise than beneficial to the city and the people, and in the proper furtherance of the erection of the City Hall which is admitted and known to be a pressing public necessity ; that the annulling of these contracts, and destroying all equities founded on them, would be the practical result of granting the writ, and must be substantially the thing aimed at in this proceeding, because the corporation may, at is pleasure, repeal both Ordinances and thereby stop the erection of the building, or may change the mode of its superintendence by abolishing the Building Committee, or appointing other parties in place of the respondents. These considerations, it is contended, divest the application of all merit, and are, of themselves, sufficient to bar the relief prayed, and justify the refusal of the writ. But we have shown that these parties, without lawful authority, are assuming to act as officers of a municipal corporation — assuming to discharge the duties of an office which has no existence. Upon grounds of public policy, for the purpose of prescribing and enforcing the proper exercise of their delegated powers by these corporations and their agents and officers, such illegal assumptions of power ought not to be permitted ; nor ought the courts to withhold the exercise of their restraining powers, in such cases, by any consideration of the consequences which may result to those who have inadvertently dealt with parties who thus assume to act without legal authority. .No principle of the law relating to municipal corporations is more firmly established, than that those who deal with their agents or officers must, at their peril, take notice of the limits of the powers both of the municipality and of those who assume to act as its agents and officers ; and in no State has this principie been more frequently applied -or more rigidly enforced than in Maryland. In *Balt. v. Eschbach, 18 Md. 276, it was held that a party, who had contracted with the City Commissioner, was bound to know the extent of the powers and duties of that officer, and must accept the legal results of mistake or ignorance in this respect. “ A municipal corporation,” say the court, “cannot be held liable for the unauthorized acts of its agents, although done officii colore, without some corporate act of ratification or adoption ; and from considerations of public policy, it seems more reasonable that an individual should occasionally suffer from the mistakes of public agents or officers, than 'to adopt a rule, which, through improper combinations and collusion, might be turned to the detriment and injury of the public.” Further reference to the many cases in which the same doctrine has been sustained would be superfluous. The reasonableness and necessity of the rule rests upon .the ground that these bodies corporate are composed of all the inhabitants within the corporate limits ; that the inhabitants are the corporators ; .that the officers of the corporation, including the legislative or governing body, are merely the public agents of the corporators ; that their duties and powers are prescribed by Statutes and Ordinances, and every 'one, therefore, may know the nature of these duties and the extent of these powers. Hence it is, that the plea of ultra vires is used by those who are sued by such corporations, and the corporation itself may use it as a defense, or, in a proceeding like the present, may assert, as plaintiff, the invalidity of such acts, either of itself or its agents and officers, as are the subject of complaint in this case. If this were not so, it would become impossible, in practice, to restrain the acts of such corporations and their officers within the limits of their powers. 0

For these reasons, we are of opinion that a just and useful purpose will be answered by the issuing of the writ in this case, and, to that end, the order appealed from will be reversed and the cause remanded.

Order reversed and cause remanded.