Upshur v. Baltimore City

51 A. 953, 94 Md. 743, 1902 Md. LEXIS 51

• Court: Court of Appeals of Maryland
• Decided: April 1, 1902
• Status: Published

Opinion

McSherry, C. J.,

delivered the opinion of the Court.

This is- an application for a writ of mandamus. The petr tion was filed in behalf of the Board of Park Commissioners, by and in the name of the Mayor and City Council of - Baltimore, against the Board of Police Commissioners. The relief asked is that the Police Commissioners shall be required to detail, and place under the direction of the Board of Párk Commissioners, eighty-three men from the regular • force of patrolmen, for the preservation of -order within the parks and squares of the city of Baltimore. This demand that the Police Commissioners shall separate and detach from the regular force under their command; about twelve per cent of the total number of policemen and place them under the control of the Park Board to render service in the parks and squares, is supposed to be sanctioned by sec. 95, ch. 123, Acts of 1898. That section, which is a part of the city charter, is in the following words: “The Board of Police Commissioners of Baltimore City is directed at the request of the Board of Park Commissioners to detail from time to time such of the regular police force of said city as the said Board of Park Commissioners may deem necessary for the preservation of order within said parks and squares, according to the regulations aforesaid, vohich policemen shall be under the direction of said Board of Park Commissioners, and shall have the same power in said parks and squares that the police of the city of Baltimore have as conservators of the peace in Baltimore City or elsewhere.” If this section stood alone—if there were no other provisions of the local law bearing on the same subject—it might possibly furnish a ground to support to some extent, but not in its entirety, the Park Commissioners’ contention. But there are other enactments forming part of the local law, and equally as important and obligatory as the one just read, and equally as applicable as it is to the subject-matter of this controversy. These will be alluded to in a moment, and then sec. pj will be interpreted, first, as it now stands, and secondly, in the light of other pertinent sections and in view of the circumstances that suggested and accompanied its adoption when originally enacted.

It may not be amiss to briefly restate a few fundamental and familiar principles which ought not be lost sight of in dealing with the question which this record presents. It must be remembered that a writ of mandamus is not a writ of right granted as of course, but it is one which is allowed “ only at the discretion of the Court to whom the application is made. This discretion will not be exercised in favor of applicants unless some just or tiseful purpose may be answered by the writ.” Booze v. Humbird, 27 Md. 4. It is also well settled that the relator’s right which is sought to be enforced must be a clear, distinct legal right; State ex rel., O’Neill v. Register et al., 59 Md. 287, and that it must be certain and free from doubt. Mandamus is an extraordinary process, “ and if the right be doubtful, or the duty discretionary, or of a nature to require the exercise of judgment * * * this writ will not be granted. * * * * And it will not be allowed unless the Court is satisfied that it is necessary to secure the ends of justice.” Georges Creek Co. v. Co. Coms., 59 Md. 259; State, &c., v. Latrobe, 81 Md. 222. The writ “is based upon reasons of justice and public policy to preserve peace, order and good government,” Poe's Pr., sec. 708, and obviously, therefore, will never be granted when those ends would be subverted or might be frustrated. Bearing in mind these recognized axioms a farther examination of the provisions of the charter and the local law will now be made.

That which is now sec. 95 of the charter has been transcribed, with some slight changes, from the Act of 1862, ch. 29; and that Act related very largely to the acquisition of land now forming Druid Hill Park. That land was then wholly beyond the city limits and entirely within the outlines of Baltimore County. Sec. 758 of the local law declares : “The said Board of Police Commissioners are required on the requisition of the Board of Park Commissioners, to detail from time to time such number of the regular police force of said city as the said board may deem necessary for the preservation of order within any parks under their control, which detailed force shall have the same power in the premises that the police force of the city have, as conservators of the peace.” This provision when originally adopted formed part of the Act of 1867, ch. 367, and was only applicable to Druid Hill Park which was still beyond the city limits. Sec. 744 of the local law, taken almost literally from the Act of 1860, ch. 7, by which the Board of Police Commissioners was first created, provides in part: “The duties of the Board of Police Commissioners * * * shall be as follows: “They shall at all times of the day and night, within the boundaries of the city of Baltimore, as well on the water as on the land, preserve the public peace, prevent crimes and arrest offenders, protect the rights of persons and property, guard the public health, preserve order at primary meetings and elections, and at all public meetings and conventions and on all public occasions and places, &c.” Sec. 745, as amended by the Act of igoo, ch. 425, declares : “The said Board of Police Commissioners are authorized and required immediately on entering on the duties of their office to appoint, enroll and employ a permanent police force for the city of Baltimore, which they shall arm and equip as they may judge necessary under such rules and regulations as they may from time to time prescribe,” &c. Sec. 755 is emphatic in providing that: “It shall be the duty of every officer of police and every policeman and detective, to report to the board and deliver to them all property seized or found by said officer, &c.” In all of the aforegoing extracts and in others to be read later on the words upon which stress will be laid will be put in italics. Sec. & of the charter and sec. 75 g of the local law will be quoted hereafter.

Can these various sections be made to harmonize in sucha way as to clothe the Park Board appointed by the Mayor, with authority to make; and then enforce by mandamus, the demand which is the basis of this proceeding, without disregarding the words of sec. 95, and without stripping the Police Board of some of its powers and narrowing the limits of its prescribed duties ? Before proceeding to answer this inquiry it is essential that the precise demand made should be clearly understood and accurately kept in mind. The exact demand, in the language-of the first paragraph of the petition, is, that the Police Board shall furnish to the Park Board “from the ■regular force of patrolmen, eighty-three men to render service all the year round and six additional men to serve from May to October, for the preservation of order within the parks and squares of the city of Baltimore, in conformity with the regulations of the Board of Park Commissioners, as authorized by sub-sec. 95 of the Acts of Assembly of 1898, ch. 123, known as the city charter.” And the prayer of the petition is for a writ of mandamus commanding the Police Boárd “to comply with the request of the said Board of Park Commissioners, as in this petition recited.” There can be no mistake about the scope and significance of this demand. It distinctly asks that eighty-three men be detached from the regular force and be placed under the direction of the Park Board “to render service all the year round" in the parks and squares. Does sec. 95 standing alone justify that demand? Does it,' when construed with the other cited sections, confer such a clear, definite and distinct legal right upon the-Park Board to make that demand, and such a correlative duty on the Police Board to comply therewith, as will be enforced by a writ of mandamus?

First. Sec. 95 standing alone gives no power to the Park Board to demand permanent control, or control'1 for a year over any part of the regular force of policemen. At most that section directs the Police Board “to detail from time to time” such of the regular police force, &c. These "words “to detail from time to time’’ are not technical words. They are the words of' common speech, and as such their interpretaton is within the judicial knowledge, “and.^therefore, matter of law.” Marvel v. Merritt, 116 U. S. 12. The Century Dictionary defines the verb “detail” to mean “to set apart for a. particular service,” and the phrase “from time to time” to mean “occasionally;” and the Universal Dictionary defines “from time to time” to mean “at intervals, now and then.” Giving to the language employed its accepted meaning, the section merely provides that the Park Board may request the Police Board to “set apart” “occasionally" or "at intervals" or "now and then',’ a certain number of patrolmen “for a particular service,” and, therefore, it does not mean that the Police Board shall detail the men permanently, or for the definite period of a year. As the duty to be performed by the Police Board is only to detail men occasionally, that is, at irregular intervals, the imposition of that duty, thus limited, gives the Park Board no authority to demand that a designated number of the police shall be detailed for a whole year to serve in the parks and squares. Service for a whole year means continuous service; the statute means occasional service. This construction not only ascribes to the language of the section its natural meaning, but, as will he seen in a moment, .is imperatively demanded if the autonomy of the Police Department is to be maintained. .

Secondly: Section seven hundred and fifty-eight whilst requiring the Police Board to detail “from time to time,” and, therefore, occasionally, some of the regular police force to preserve order in the parks, does not place the policemen when so detailed, under the direction of the Park Board, as sec. p¡ does. By which section are the policemen when detailed for service in the parks to be governed ? As members of the force they are undoubtedly bound to obey the Police Board. If under sec. 95 they are subject to the direction of the Park Board, and are placed there, detailed, set apart, for a year, as the prayer for mandamus asks, they must obey the Park Board during that year, although sec. 755 makes it the imperative and unqualified duty of every policeman to report to the Police Board. If the men detailed—set apart—for the parks are under the direction of the Park Board, they can not at the same time be also under the direction of the Police Board. That is obvious. Before the parks were brought into the city, the police assigned to the parks were placed under the direction of the Park Board because the Police Board had no jurisdiction as conservators of the peace, beyond the city limits. At that time it was impossible that a clash of authority between the two boards could occur. Now it is otherwise. But what is the utility of the detailed policeman reporting to the Police Board, if, after being assigned to service in the parks, he must take his orders from the Park Board ? And how can he be under the direction of the Park Board unless he takes his orders from that board? Under sec. 744 and sec. 945, as amended by the Act of 1900, ch. 425, the Police- Board has absolute control over the permanent police force enrolled for the city of Baltimore; and the municipal authorities have no right to interfere with that control. For, as was said by this Court more than forty years ago, in Mayor, &c., v. State ex rel. Board of Police, 15 Md. 455, when construing the Act of 1860, ch. 7, which first created the Board of Police Commissioners: “This law deprives, the city authorities of all control over, or interference with, the police of the city, except as provided by the 19th sec. of the 4th Art. of the Constitution” of 1851—an exception, it may be added, which does not concern the pending controversy because it is no longer contained in the organic law. It was manifestly not the design of the Legislature when enacting the new city charter to create a conflict between these various sections and thereby to leave to the. Park Board an opportunity or the ability, if it should so elect, to diminish the force under the control of the Pólice Board, if the former selected sec. 95 to act under, when by selecting sec. 758 the police would not be withdrawn from the supervision of the Police Department. Which section is to control ? Are we to say that sec. 9$ shall have priority over sec. Jp8 ? That would be in' the teeth of the decision in Smith v. Co. School Com., 81 Md. 513, where it was held that when different sections of the same -law conflict, the later one must prevail. Or, are we to say that both sections standing together must limit the wide and comprehensive authority of the Police Board over the men enrolled by them for the preservation of order and the protection of persons and property throughout the entire city of Baltimore ? Will any accurate answer to these questions reveal a clear, distinct, legal right in the Park Board, sufficiently definite, free from doubt and imperative, to justify the issuing of a writ of mandamus; the ultimate effect of which writ will be to subordinate the judgment of the Police Board to the judgment of the Park B^ard on the subject as to what number of policemen shall be detailed for the parks, though the Park Board as an agency of the city is strictly forbidden to interfere in any way with the Police Board, as will be shown later on when sec. 6 of the charter and sec. yyp of the local law are commented on ? By treating sec. pp as mandatory a conflict of jurisdiction between the Park Board and the Police Board is made, not only possible, but highly probable.' This case presents a conflict in concrete form. The parks are now within the city limits. They now form part of the territory over which the jurisdiction of the Police Board extends. Independently of sec. pp it is just as obligatory on the Police Board to maintain order, preserve the peace and protect property within the parks and squares, as it is to discharge the same duties in the heart of the inhabited portion of the city. “They shall at all times of the day and night, zvithin the boundaries of the city of Baltimore * * * preserve the public peace, prevent crime and arrest offenders, protect the rights of persons and property * * * on all public occasions and places',' sec. 744. These are amongst the objects for which the Police Board was clothed with plenary power to enroll, to arm and to maintain the force which the statutes subject to the board’s authority. If the board is to do these things effectively, it must be in a position to enforce a rigid discipline over its subordinates ; and there can be neither efficiency nor discipline, much less celerity of action, when the authority to command is divided between two boards. If sec. pp is mandatory, then every part of it is mandatory, and the men who -are furnished, under it, to the Park Board to serve for a year in the parks, are for that period of time, subject to the direction, that is, the control, of the Park Board ; and if this be so, they are necessarily, for the same period, withdrawn from the control of the Police Board ; for the obvious reason that they cannot obey both boards if the orders they receive from one are in conflict with the orders received from.the other. If twelve per cent of the enrolled force can be thus withdrawn from the'control of the Police Department, why may not twenty or thirty per cent be likewise dealt with ? If that can be done, then .the utter demoralization of the force will surely ensue. If sec. gybe given a mandatory meaning then the Police Board, so far as respects the preservation of order in the parks, must be goverened, not by its members’ own sense of duty, not by the obligation - of their oath of office and not by their own judgT ment, but by the wisdom or the behests of the Park Board. Now, as under sec. 744 it is the imperative duty of the Police Commissioners at all times of the day and .night “ within the boundaries of the city” and at “all public * * * places” to “ preserve the public peace, prevent crime and arrest offenders ; and as the parks and squares are public places and are now within the boundaries of the city; it necessarily follows that the jurisdiction of the Police Commissioners includes and extends over those squares and parks, and that the officers and men placed, in the squares- and. parks are, whilst there, under the control and subject to -the direction of the -Police Commissioners. If this be so—and it does not admit of a reasonable doubt—then there is a palpable conflict between see., 744 and the antecedent sec. gy in so far forth as the latter section purports to subject the detailed policemen to the direction of the Park Commissioners ; and if both sections are. mandatory it is obvious that both cannot prevail. A construction which produces such a repugnancy and which subordinates in any particular the Police Commissioners, who are State officers (Altvater v. Mayor, &c., 31 Md. 462), to the domination of a mere municipal board, cannot be said to establish a clear, dis tinct legal right, free from doubt; especially in the face of the .provisions of sec. jpg which emphatically declares :-. “ Nothing -in this sub-division of this Article shall be so construed as to * * * * give the said Mayor and Council of Baltimore any control over said Board [of Police Commissioners] or any officer of police, policeman or detective appointed thereby." Nor can the theory that sec. gp is-mandatory be upheld against the explicit provisions of sec..6, sub-title Police Power, which, provides : “ Nor shall the said city, or any officer or agent of the city, or of the-Mayor thereof, in any manner impede, obstruct, hinder or interfere with the said Board of Police, or any officer, agent or servant thereof or thereunder.” Both of these last cited-sections are prohibitory. No mandamus can be issued to enforce compliance with a demand which overrides or is at variance in any particular or to any extent, with these clear and emphatic prohibitions. If sec. gp is mandatory, then the Police -Board is subject to the control of the Park Board to the extent that the former is imperatively bound to comply with the request of the latter. But the right to order such compliance is a right not only to .control, but a right to interfere with the Police Board; and quoad that right the Police Board becomes subordinate to the Park Board.. But that is precisely what sec. 6 of -the charter emphatically declares shall not be the case. If sec. gp is followed sec. 6 must be disregarded. Sec. jp8 bears-to sec. Jpg exactly the same relation that sec. gp bears to sec. 6. If secs, gp and Jp8 are mandatory, it cannot be denied that secs. 6 and jpg are equally mandatory. The result of treating all these four sections as mandatory is that secs. 6 and gp of the charter must neutralize each other.; and secs. Jp8 and Jpg of the local law must also do the same thing. There would then be no statutory provision at all to abridge the broad powers conferred on the Police Board by sec. J44, and no law making the latter subservient to the Park Board in any particular. v

Secs, gp and jp8 when first adopted had relation to a different situation from the one which now exists ; and when they were put side by side with others which gave in mandatory terms such plenary power to the Police Commissioners throughout the whole city, including the parks, and which denied to-the city in prohibitory words any control over the police, they must be treated as simply directory or explanatory, and not as creating exceptions to the broad and imperative powers of the Police Commissioners. A section of the Code—and all these sections of the charter are sections of the Local Code, Art. 4— may be considered in the light of the original Act from which it was codified and with reference to the times and circumstances under which the law was passed. Maurice v. Worden, 52 Md. 294; Hooper v. Creager, 84 Md. 195. Both sec. 95 and sec. 758, as originally adopted, the one in 1862, the other in 1867, had referehceto Druid Hill Park, which, as previously stated, was then part of the territory of Baltimore County and which was not brought within the city limits until the annexation Act of 1888, ch. p8, went into effect. As the police of Baltimore City had no authority to make arrests in any part of the territory within the limits of Baltimore County, except in the instances named in the Act of i860, ch. 7, and now reiterated in sec. 744, but which instances do not refer to the preservation of order in the parks, it was clearly necessary for the Legislature to enact some provision for policing the parks owned by the city, but lying beyond the city limits. "It was with that end in view, and with no other, that both secs, py and 7y8 were at first adopted. The phraseology employed demonstrates this. Both sections declare that the policemen detailed for the parks should “have the same power in the premises that the police force of the city have as conservators of the peace.” Had it not been' for that or some similar legislation the city' police would have been without authority as conservators of the peace in the parks lying beyond the city limits. The original design and purpose of the legislation, then, was not to make the policemen assigned to the parks, independent of the Police Commissioners ; but the purpose and design was to give the men so assigned a power which without that legislation they would not have possessed. But when the parks were brought within the city limits by the annexation Act the reason and necessity for those two sections obviously ceased; because when the parks became part of the city the police had, without regard to those sections, just as much power within the parks as they had on Baltimore or Charles streets. Neither of those sections, though the one was transcribed into the new charter and the other into the local law, confers any power on the Police Commissioners or on the policemen, not given by sec. 744; and neither of them can be treated, because so transcribed, as restricting the provisions of sec. 744 or as enlarging the authority of the Park Board in any way, unless sec. 6 and sec. 759, which deny to the city and therefore to all its agents, including the Park . Board, any control over the police, be entirely eliminated. If secs. 93 and 738 are no longer necessary to give the police jurisdiction in the parks, because the parks are now within the city limits ; and if those sections can confer on the Park Board no control over the police force without striking down secs. 6 and 739, it is not perceived how the mere fact that they have been copied into the new charter and into the local law, gives to them a mandatory effect, which will, if pushed to where it necessarily leads, seriously interfere with the management of the police force by the Police Commissioners. The history of the origin oisecs. 93 and 738, the purpose which induced their adoption many years ago and their existing association with other provisions, with which they must clash if they are treated as mandatory but with which they may stand in perfect accord if they are regarded; as merely directory, would seem to require that they be: held to be,' not mandatory, but directory. They cannot be read as exceptions to the Police Commissioners’ general powers unless they are construed to be mandatory; because those general powers are under sec. 744, themselves essentially mandatory, and mandatory powers like those can not be controlled or limited by a mere directory provision. If secs. 93 and 738 are treated as exceptions to sec. 744, they must, and can only be so treated because they are mandatory. Now, sec. 93, if mandatory, is in conflict with sec. 6, which is no - less mandatory. Both secs, ó and 93 are parts of the charter. Giving to each a mandatory effect will .create a distinct conflict between two sections of. the charter. ’ Sec: 758 .if mandatory is in conflict with sec. 759-.. Neither of the latter part of the charter, but both are included amongst the local .laws. Giving to each a mandatory effect will create á distinct conflict between two.sections of the local law. Can such conflicts generate a clear,- definite, legal right? Every principle of interpretation,, in view of all the-.surroundings, points to a directory construction of secs, pg and 758. The unity of the charter-and the consistency of the local, law will be maintained by holding those sections to be directory. The stability of the police force will be thereby guaranteed. The possibility of a clash of authority between two boards, with its serious consequences, will be thus- averted; and secs. 6 and 759 will be respected and obeyed. . ...

Nor must the circumstances which preceded and the occasion which prompted the. adoption of the Act of Assembly creating the Board of Police. Commissioners be.overlooked when interpreting the city charter and the miscellaneous local laws to which reference has been made. For some years prior -to the adoption of the Act of 1860, ch. 7, and, therefore, during a period when the police force was wholly under the con- ■ trol of the municipality, the city authorities failed to suppress the disorder and lawlessness which prevailed to an alarming extent, and the riots and blood-shed which invariably accompanied a general or local election. The law was defied; the public peace was disturbed; the constabulary were powerless, if not in sympathy with the mob', and reputable citizens were driven, by violence from the polls. Relief from the intolerable conditions which existed was finally sought by an appeal to the General Assembly, and the Act of i860, ch. 7, completely separating the police department from the city government, was the result. The Police Board was created and its members and the force enrolled by them were made State officers and the’ city was denied, in the most positive manner, any right to interfere with or control the policemen. The underlying purpose ivas to deprive the city of all power over the police. The change made Baltimore one of the most law-abiding communities in the country. Can it be supposed that it was the design of the new charter to return, even partially, to the status which the Act of 1860 abolished ?

The language of sec. 93 must yield, if need be, to the intent of the whole enactment, State v. Boyd, 2 G. & J. 365; and that intent is perfectly obvious when the considerations already alluded to are1 given their just and appropriate weight. The words of sec. gy are simply directory as respects the detailing, of policemen for the-parks. 'The Police Commissioners are “directed,” and in sec. 758 they are “required” to make the detail; but neither of these words, in view of the whole context and the entire surroundings, creates an imperative, absolute duty, admitting of no' discretion. The last sentence of sec.. 29, Art. 3 of the Constitution, provides: “And whenever the General Assembly shall enact any Public General' Law, not amendatory of any section, or article ‘of the said Code, it shall be the duty of the General Assembly to enact the same, in articles and sections, in the same manner, as the Code is-'arranged. ” This provision though containing the imperative word shall and though imposing an explicit duty, was held by this Court to be directory, and a law passed without the observance of that requirement was upheld. Co. Coms. v. Meekins, 50 Md. 45. It is not disputed that cases may be found where, owing to peculiar conditions, the word “direct” has been held to impose a mandatory duty. Such, for instance, is the case Mayor, &c., v. Reitz, 50 Md. 574. But mere' words do not control. The whole surroundings, the purposes, of the enactment, the ends to be accomplished, the consequences that may result from one meaning rather than from another, and the cardinal rule that-’seemingly incongruous provisions shall be made to harmonize rather than conflict-, (New Lamp Ch. Co. v. Ansonia Co., 91 U. S. 656,) must all be considered in determining whether particular words shall have a mandatory or a directory effect ascribed to them. It is peculiar, to say the least, that these two sections, 93 and yy8 should now be mandatory, and should, therefore, to some extent deprive the Police Commissioners of jurisdiction within the squares and parks and should curtail their authority in any way over the police force; though the primary object of these same sections at the time of their enactment was, not to curtail or restrict, but, on the contrary, to enlarge the jurisdiction of the Police Commissioners by permitting them to send conservators of the peace into the county, and to extend the authority of the city police so that they might preserve the peace and protect property beyond the limits of the city; .From every point of view those, two sections should be treated as only directory.

Finally : Laying aside all. that has been said thus far, there is another view which is absolutely conclusive against the Board of Park Commissioners;, and it is this. No one, it is believed, will venture to contend that sec. gy, however interpreted, confers, or was designed to confer, upon the Park Board an arbitrary and capricious power to demand that the Police Board should furnish for service in the parks, any number of policemen that the Park Board might, without adequate reason,ask for. Such a construction, if adopted, would put in the hands of a Park Board a dangerous power which could be used to seriously .cripple the efficiency of the whole Police Department. There must, therefore, in the very nature of the situation, be some relation between the number of policemen demanded, the total number available-for service throughout the city, and the, occasion or needs for which the demand is made. In other words, there must be back of the demand a necessity for -the demand; and there can be, consequently, no valid demand without a real necessity to support it. For instance : The total police force is made up of seven hundred men outside of captains, lieutenants, and sergeants. Act of igoo, ch. 42y. They are charged with the duty of policing the whole city covering about thirty-one square miles of territory including the parks. If the Park Board should require the Police Board to furnish for a whole year, and not for some special occasion or emergency, one-fourth of the entire force to-guard the parks, whicn contain only about one and eight- tenths square miles; such a demand would be manifestly unreasonable and unlawful. It is clear, then, that there must be some just,and appropriate relation between the number of men demanded and the occasion for the demand, to say nothing of the ability of the Police Board to furnish such a number, due regard being had to the duty to police the rest of the city. It is certain, upon the most obvious principles, that no Court would by mandamus- enforce obedience to a demand if in point of fact there existed no just ground for making the demand. This self-evident principle was recognized by the relators in this case, and accordingly in the fifth paragraph of the petition it is distinctly alleged that “the Board of Park Commissioners * * * are unable to properly preserve order and the property of the city within the public parks and squares of the city and protect the peace and safety of the citizens who have access to said parks and squares, because of this failure and refusal upon the part of the Board of Police Commissioners to comply with the request of said Board of Park Commissioners in reference to the necessary members of the police force for the purposes hereinbefore stated.” This is clearly an allegation of fact, and in substance it avers that the number of men demanded by the Park Commissioners is necessary for the preservation of peace and order and the protection of property within the parks and squares. Indeed, under the terms of sec. pj it is only when such a necessity does exist that a demand for policemen can be made at all. The relators were therefore required to make the averment contained in paragraph five, or else, on the face of their petition, they would have had no standing whatever in Court. The allegation is therefore a material one. Now, the answer of the respondents flatly denies that averment. The denial is brief, but it is explicit. It says, the respondents “ deny the matters and things alleged in the fifth paragraph of said petition.” The next docket entry is: “Issues joined on petition and answer.” Here, then, is a distinct issue of fact, an issue of fact going to the very root of the case, an affirmance on the one side and a denial on the other that a necessity existed for supplying the Board of Park Commissioners with those eighty-three policemen. Under sec. 7, Art. 60 of the Code of Public General Laws, the Court below had authority to determine that issue of fact provided both the relators and respondents agreed that it should. Eichelberger v. Sifford, 27 Md. 321. There is no such agreement in the record. Nevertheless, in the face of that condition, the Baltimore City Court, without hearing a word of testimony or a particle of evidence, ordered the peremptory writ to issue. If in truth it had appeared at the hearing that there was no real necessity for supplying these eighty-three men and the additional six men, or forty-four policemen to the square mile whilst the balance of the city was left with but twenty-one to the square mile, can it be pretended that a writ of mandamus would have been ordered, merely because the Park Commissioners had made a demand for that number' of patrolmen ? The writ must not only serve some just and useful purpose, but it must be “ necessary to secure the ends of justice and if in fact there was no necessity, or what is the same thing if it did not appear that there was a necessity, for that number of men, no just or useful end could have been subserved and the ends of justice could not have been promoted by ordering the Police Commissioners to furnish them.' How could the trial Court assume that the necessity existed in the teeth of the flat denial made in the answer? And yet before the writ could issue, the existence of the necessity must have been assumed, inasmuch as there was no evidence adduced to establish it. This Court must make the same assumption before the order appealed against can be affirmed: It is- clear, then, laying aside all other reasons, that, because'of this vital defect—this failure to establish the material allegations of the fifth paragraph of the petition—the writ should not have been issued.

A writ of mandamus must issue as prayed if it is issued at all. Wells v. Com. Hyattsville, 77 Md. 142. If the writ issues as prayed in this case, it will mean, when issued, that by an order of Court eighty-three men shall be detached from the Police Department and placed under the control of the city through1 the Park Board, though this Court said in ly Md. the city had been deprived of all control over the police, and though sec. yyp of the local law, transcribed from the Act of i860, ch. 7, sec. ip, and continually in force for more than forty-two years, says precisely the same thing; it will mean, when issued, that those eighty-three men shall be detached for a whole year from the Police Department, though the most the Park Board could require, under any view of sec. py, is that the men should be detailed “from time to time’’ and, therefore, occasionally, and not for continuous service in the parks; it will mean, when issued, that these eighty-three men shall be assigned to- the parks for service there during a year, and consequently for service nowhere else, whereby the strength of the police force will be impaired to the extent of twelve per cent of its available number; it will mean, when issued, that the material allegations of fact in the petition which have been flatly denied by the answer may be assumed to be true in the absence of any evidence to sustain them; it will mean, when issued, thát a divided and most likely a conflicting authority and control over the police will be established; and it will mean that a prerogative writ which is a discretionary writ and should never be issued unless the relator’s right is a clear, distinct, legal right, and unless the respondent’s duty is definite and mandatory, may in Maryland, -now and hereafter, be availed of where there is no such right or duty accorded or imposed, and where the ultimate effect may be the creation of discord in the government of a great city to the detriment of the public peace and tranquility.

(Decided April 1st, 1902.)

Order reversed and petition dismissed with costs.