Board of Street Com'rs of Hagerstown v. Williams
| Decision Date | 15 January 1903 |
| Citation | 53 A. 923,96 Md. 232 |
| Parties | BOARD OF STREET COM'RS OF HAGERSTOWN v. WILLIAMS. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Washington county.
Application by Frank K. Williams for a writ of mandamus against the board of street commissioners of Hagerstown to compel respondents to reinstate applicant as policeman. From an order granting the writ, respondents appeal. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, SCHMUCKER PAGE, and JONES, JJ.
J Augustine Mason, for appellants.
M.L Keedy, for appellee.
By the act of 1898 (chapter 192) relating to Hagerstown, it is among other things, provided that the board of street commissioners "shall appoint regular policemen, not exceeding ten, to serve under such regulations and for such compensation as they (the street commissioners) may direct, such compensation not, however, to exceed forty dollars per month, and said policemen shall be subject to removal for cause." Section 192 was amended in 1900 by chapter 391 of the Acts of that session, but not in such a way as to affect the question involved in this controversy. In February, 1900, and therefore whilst the act of 1898 quoted from above was in force, the appellee, Williams, was appointed by the board of street commissioners then in authority a regular policeman, and he duly qualified and entered upon the discharge of his duties. He continued to perform those duties until April 16, 1902, when he was discharged by the street commissioners, without notice that any charge had been preferred against him, and without an opportunity to be heard in his own defense. He then made application to the circuit court for Washington county for a writ of mandamus requiring the street commissioners to restore him to his office. In the answer of the respondents it is admitted that the action of the majority of the board in discharging the appellee was taken "without notice or citation to the said petitioner to appear before said board at said particular meeting [that is, the meeting of April 16th], and without notice to the said petitioner that any charge had been made against him for failure or neglect of duty or official misconduct, or any notice to the said petitioner of the action contemplated." In their answer the respondents further insisted that they were intrusted by the statute with the sole power to determine whether the appellee should remain on the police force; that their judgment in the matter was final and conclusive; and that, inasmuch as they had exercised their discretion, had removed the appellee, and had appointed another person in his place, the court was without jurisdiction to review their action. To the answer (only parts of which have been cited) the appellee filed 15 pleas and joinders of issue. Several of the pleas were demurred to, but, as the case now stands, it will not be necessary to allude to any but the fifteenth plea. By that plea it was averred that under the section heretofore quoted from the statute, and under the rules and regulations adopted by the street commissioners, the appellee was entitled to have due and proper notice of any charge or charges made against him, and that he was entitled to an opportunity to be heard in his own defense, but that he did not have either notice or an opportunity to be heard. The demurrer to that plea raises the only question before us, and that is the only question before us because, though the record contains considerable evidence on the issues of fact, there is no bill of exceptions, no agreement of counsel, or no certificate of the trial judge from which this court can know or be apprised that what is in the record was, in fact, the evidence considered by the court below. Without some such authentication of the testimony, we are not at liberty to consider it. Davis v. O'Berry, 93 Md. 751, 51 A. 1107. In Creager v. Hooper, 83 Md. 501, 35 A. 159, the question decided arose on a demurrer. In Manger v. Board, 90 Md. 672, 45 A. 891, there was a bill of exceptions. From the order directing the writ of mandamus to issue the street commissioners have appealed.
The single question for decision on that part of the record which is properly before us arises on the demurrer to the fifteenth plea, and that question is, was the appellee, under the terms of the act of 1898, heretofore transcribed, entitled to notice that charges had been preferred against him, and further entitled to a hearing before being removed. There have been many cases decided by this court on the subject of official tenures, and relating to the right of removal from office; but the precise situation here presented does not seem to have arisen heretofore. In State v Register, 59 Md. 283, the statute under which the relator was appointed provided that the appointees of the fire department of Baltimore city "shall be of good character, and *** shall be appointed by the fire commissioners and shall be entitled to retain their respective positions for such time as they evince willingness and capacity to discharge the duties pertaining thereto efficiently, harmoniously with their associates, and satisfactorily to the fire commissioners." The relator, having been discharged from his position of foreman of an engine company, applied to the court of common pleas for a writ of mandamus to require the fire commissioners to restore him to his former place. The writ was refused, and this court held that under the statute just quoted "the fire commissioners were solely invested with the power of determining whether their appointees were persons of good character, as by law required to be, whether they were efficient in the service, and whether they evinced proper willingness to discharge their duty 'harmoniously with their associates,' and the judgment and discretion exercised in the matter by the fire commissioners are not subject to the revision of another tribunal." It was further held that, when the power of removal from office vests by statute in the discretion of any person or body of persons, or depends upon the exercise of personal judgment as to whether the cause for removal be sufficiently good, mandamus will not lie. In Miles v. Stevenson, 80 Md. 358, 30...
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