Gould v. City of Baltimore

Decision Date11 April 1913
Citation87 A. 818,120 Md. 534
CourtMaryland Court of Appeals

Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump Judge.

Suit by William D. Gould against the Mayor and City Council of Baltimore and others. From an order dismissing the plaintiff's bill, he appeals. Affirmed.


Edward M. Hammond, of Ellicott City, and Charles C. Wallace, of Baltimore, for appellant. S. S. Field, of Baltimore, for appellees.


This controversy presents the question of the validity or invalidity of an ordinance (No. 202) passed by the mayor and city council of Baltimore, approved December 17, 1912 prescribing the duties and compensation of constables in the city of Baltimore.

The appellant is a taxpayer of that city and filed this bill against the appellees for an injunction to restrain the city from paying the constables the salaries fixed by the ordinance. The validity of the ordinance is assailed upon the ground that the mayor and city council of Baltimore are not authorized to change the compensation of constables from fees as fixed by sections 14, 15, and 17 of article 36 of the Code to salaries or to change their duties as specified in section 4, art. 20, of the Code.

The case was heard upon bill, answers, and agreement of counsel and from an order of court, holding that the ordinance was valid and dismissing the plaintiff's bill, this appeal has been taken.

The title of the ordinance here attacked is an ordinance to appoint two constables for each of the 24 wards of the city of Baltimore in the place of those appointed by ordinance No. 87, approved March 12, 1912, who failed to qualify and to prescribe their several and respective duties and compensation. The object and purpose of the ordinance, as will be seen by a reference thereto, was to appoint 48 constables, 2 for each of the 24 wards of Baltimore city, specifying their duties and paying them salaries instead of fees. Prior to the passage of this ordinance the constables of the city received their compensation in fees as set out in a schedule of fees, contained in sections 14, 15, and 17 of article 36 of the Code of Public General Laws of the state, and their duties were prescribed in section 4 of article 20 of the Code.

The contention of the appellant is that the method of changing the duties of constables in the city, and substituting salaries for fees as provided by the ordinance, is without warrant and authority of law, because the existing statute law prescribes their duties and provides that their compensation shall be by way of fees. Sections 14, 15, and 17 of article 36, Code (1912); section 4, art. 20, Code 1912. The answer to this contention, it seems to us, will be found in the Acts of 1898, c. 123, the new charter of Baltimore city. Section 206, paragraphed Constables, reads as follows: "There shall be two constables for every ward of the city of Baltimore, who shall be appointed by the mayor and city council of Baltimore and hold their offices for two years. Their duties and compensation shall be the same as are now, or may hereafter be prescribed by law or ordinances." The language of this section is clear and unambiguous, and it distinctly provides that the duties and compensation of the constables of the city of Baltimore shall be the same as are now or may hereafter be prescribed either by law or ordinances. It is certain that the Legislature possessed the power to change the law and could by a valid law prescribe salaries instead of fees, and also provide different duties for constables of Baltimore city.

Article 4, § 42, of the Constitution, provides that "the mayor and city council of Baltimore shall appoint such number of constables for the wards of the city of Baltimore as are now or may be hereafter prescribed by law. And the constables so appointed and commissioned shall hold their office for two years and shall have such duties and compensation as hath been heretofore exercised or shall be hereafter prescribed by law."

In Levin v. Hewes, decided at the October term of this court and to be reported in 118 Md. 624, 86 A. 233, the Acts of 1912, c. 823, was declared invalid because of the mode and manner provided for the appointment of constables under that act; yet it was distinctly held that the Legislature would have the power to change the compensation and to prescribe new and additional duties to be performed by the constables of the city. The attempt to prescribe the duties and to fix salaries in place of fees for constables in that act failed because the other provisions of the act relating to constables were stricken down.

It would seem, therefore, to be perfectly clear that, as the Legislature had the right and power to change at any time the duties and compensation of constables, it could also delegate and confer upon the city the power to pass ordinances to accomplish the same purpose.

It is well settled that an ordinance passed in pursuance of express legislative authority is a law and has the same effect as a local law, and it may prevail over a general law upon the same subject. Balto. v. Clunet, 23 Md. 449; Hammond v. Haines, 25 Md. 541, 90 Am. Dec. 77; Rossberg v. State, 111 Md. 394, 74 A. 581, 134 Am. St. Rep. 626; New Orleans Water Works v. New Orleans, 164 U.S. 471, 17 S.Ct. 161, 41 L.Ed. 518; Walla Walla v. Water Co., 172 U.S. 1, 19 S.Ct. 77, 43 L.Ed. 341; 2 Dillon on Mun. Cor. § 573; 2 McQuillan on Mun. Cor. 643, notes pp. 1409 and 1412.

In Rossberg v. State, supra, it is said, when the Legislature has authorized a municipal corporation to pass ordinances to protect the public health and to exercise the power of the state, an ordinance is valid which imposes different or additional penalties for an offense already punishable under the general penal law of the state. Judge Pearce, in delivering the opinion of the court in Rossberg's Case, fully reviewed the previous decisions of this and other courts upon the power of municipal corporations to pass ordinances in pursuance of legislative authority, and we need not extend this opinion by further discussion of that question.

In Balto. v. Clunet, 23 Md. 449, Judge Bartol said where jurisdiction and power to legislate upon a given subject have been conferred by law upon a municipality, every intendment...

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