Heiskell v. City Council of Baltimore

Decision Date09 March 1886
Citation4 A. 116,65 Md. 125
CourtMaryland Court of Appeals

Appeal from superior court, Baltimore city.

S Teackle Wallace and Thos. S. Baer, for appellant.

Jas. L. McLane and Bernard Carter, for appellee.


It appears from the agreed statement of facts, filed in this case, that the appellant, Heiskell, was in February, 1883 duly appointed fire marshal of Baltimore city, under an ordinance passed by the mayor and city council, and that he qualified as such fire marshal, and entered upon the duties of the office, and continued to discharge the same until about April 1, 1884; that by an ordinance passed by the council, and approved by the mayor, in March, 1884, the ordinance passed in 1883, and above referred to, creating the office of fire marshal, was repealed, and a board of fire commissioners created in its stead; that the board of fire commissioners, having been duly appointed, demanded possession of the office occupied by the fire marshal, but the appellant refused at first to deliver the office to said board, but the officers and men comprising the fire department having submitted to the fire commissioners, the appellant surrendered the office to them under protest. The appellant claims that the ordinance of 1883, under which he was appointed fire marshal for two years, was not repealed by the ordinance approved March, 1884, and that he was ready and willing and offered to perform the duties of fire marshal for the whole time of two years for which he was appointed. He claims his salary for the balance of the term, or for some part of it.

It will be perceived from this statement that the principal, and, indeed, we may say the only, question in this case, is whether the ordinance of 1883, creating the office of fire marshal, was repealed by the ordinance of 1884, substituting a board of fire commissioners for the fire marshal. If it (the ordinance of 1883) was legally repealed by the action of the mayor and city council in 1884, there is an end of the appellant's case. The whole difficulty arises from the action of the first branch of the city council. If the repealing ordinance did not legally pass that branch, it was in fact no ordinance. If it did so pass that branch, it is conceded that it is valid, as there is no dispute that it properly passed the second branch, and was approved by the mayor. The question whether the repealing ordinance was passed by the first branch depends upon the force and effect of the rules of procedure adopted by the first branch, and which were in force at the time of the passage of the repealing ordinance, or, we may more properly say, of one of the rules of procedure. That rule is as follows:

"If, at the hour of meeting, a quorum be not present, the absent members may be sent for if required by a majority of those present, or an adjournment may be made to the following day; but, a quorum being present, (two-thirds of the members being necessary,) the roll shall be called by the clerk, commencing with the president, and proceeding with the members representing the wards, in numerical order."

Waiving any objection that may be made to the wording of this rule, we will treat it as a rule duly made by the first branch, at its first session, fixing and declaring that two-thirds of the members of that branch should constitute a quorum for the transaction of business, and not a less number. We may go a step further, and take it for granted that, when they passed that rule, the members of that branch supposed that they had the power to enact such a rule, and that they conceived that it was, until repealed, obligatory upon them; and the question then is squarely presented: "Had the first branch the legal right to determine what should constitute a quorum?"

The appellee, a municipal corporation, was created by act of the general assembly. Of the power of the general assembly to fix and determine what should be a quorum, there can be no possible doubt. This power the general assembly has several times exercised. Thus, in 1796, it provided that a quorum of the city counsel should consist of three-fourths of the members. Subsequently the legislature fixed the quorum at two-thirds; but finally, in 1868, in amending the law relating to the city council, nothing was said as to what should be a quorum, and so the law stood at the time the repealing ordinance was passed. But when the legislature omitted to exercise its undoubted prerogative, to declare what should constitute a quorum, it by no means intended to delegate that most important power to the council itself. A municipal corporation is created for public and political purposes, and as to these corporations Mr. Dillon says:

"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,--not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. They can exercise no powers but those which are conferred upon them by the act by which they are constituted, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties, and the accomplishment of the purposes of those associations."

Now, it has been urged in behalf of the appellant that the legislature having granted to this municipal corporation the right "to settle their rule of procedure," that this power includes the right to fix the quorum. "Rules of procedure" are rules made by any legislative body as to the mode and manner of conducting the business of the body. They are intended...

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  • Anderson v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1984
    ...17 Md. 32, 45 (1861); Harrison v. State, 22 Md. 468, 488 (1864); Greenwood v. Greenwood, 28 Md. 369, 386 (1868); Heiskell v. Baltimore, 65 Md. 125, 151, 4 A. 116 (1886). In Lutz v. State, 167 Md. 12, 172 A. 354 (1934), the appellant claimed that the newly enacted (1920) statute proscribing ......

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