Hooper v. Creager
| Decision Date | 19 November 1896 |
| Citation | 35 A. 967,84 Md. 195 |
| Parties | HOOPER, MAYOR, v. CREAGER. [1] |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city.
Mandamus by Noble H. Creager to compel Alcaeus Hooper, mayor of Baltimore city, to administer to plaintiff the oath of office as city tax collector. From an order granting the writ defendant appeals. Reversed.
Argued before McSHERRY, C.J., and BRISCOE, RUSSUM, PAGE, and FOWLER JJ.
Thomas G. Hayes and Thomas I. Elliott, for appellant.
Wm. S. Bryan, Jr., H. Stockbridge, Jr., and D. L. Brintin, for appellee.
It is not necessary to go into any extended statement of the facts presented by this record, nor to discuss the many interesting and ably-argued questions which its pages set forth. With all, except one, of the positions taken by the eminent and distinguished judge who heard this case in the court below, we, in the main, agree, though we are not to be understood as adopting them; but upon one vital inquiry we reach a different conclusion. With the policy of the municipal legislation whose validity is assailed in these proceedings this court has no concern. If valid, its wisdom is not for us to question. If invalid, it becomes our plain and imperative duty to declare it so. The ordinance of the mayor and city council which is attacked on the pending appeal was passed over the veto of the mayor, and, by its provisions, the city tax collector was made elective by the joint convention of the two branches of the city council. Before the adoption of the ordinance, that officer and others had been nominated by the mayor, and, with the advice and consent of a joint convention of the two branches, appointed. Whether this radical change in the method of appointment of the city tax collector and of numerous other officers, whereby the mayor was deprived of all participation in their selection, is ultra vires or not, is the predominant and controlling question in the case.
The power to pass ordinances regulating the manner of making appointments to office is a power to regulate the method by which appointments shall be made by the depository of the power charged with the duty to make them, but is not a power to delegate to some one else, or to a fraction of that depository, the authority to do the thing which the depository itself alone was commissioned to do. The limits and the scope of the power to make appointments of municipal officers were originally defined in the legislation that has been compressed in section 30, art. 4, Code Pub. Loc. Laws. This section is not new legislation, creating and demarking, for the first time, the power; but it comprises portions of two distinct acts of assembly passed with an interval of more than 11 years between them--the one being supplementary to the other. But, when they were codified, the last in point of enactment, which, when enacted, was simply a supplement to the former, was placed first in section 30; and the first in date of passage, and which, when passed, created the power, was placed second in order in the body of the section. This circumstance, however, cannot alter the construction which ought to be placed on section 30, as found in the Code, or make it mean precisely the reverse of the meaning which its component parts as originally enacted obviously bear.
As the fundamental question is whether the ordinance that strips the mayor of Baltimore city of all participation in making appointments of municipal officers is a valid exercise of the powers, or of any of the powers, given by the charter of the city, it will not be amiss, first, to quote the section of the Local Laws under which it is claimed the power to pass the ordinance does exist, and then to transcribe the two acts of assembly which are embodied in and make up that section. Section 30, art. 4, Pub. Loc. Laws, reads as follows: "They may pass ordinances regulating the manner of appointing persons to office under the corporation, which they are or may be authorized by law to appoint; but, unless such ordinances be passed, the mayor shall nominate, and, by and with the advice and consent of a convention of the two branches of the city council, shall appoint, all officers under the corporation, except," etc. Section 2, c. 148, Acts 1817, provides: "And the mayor of the city shall nominate, and, by and with the advice and consent of a convention of the two branches of the city council, shall appoint, all officers under the corporation, except," etc. And Act 1828, c. 114, declares: "That the mayor and city council may pass ordinances regulating the manner of appointing persons to office under said corporation, which they are now or may hereafter be authorized by law to appoint; anything, in the second section of the act to which this is a supplement, to the contrary notwithstanding." Now, it must be conceded, because it is too plain for denial, that if the act of 1817 had been incorporated in the Code without qualification of any kind, and just as the act stood on the day of its adoption, more than three-quarters of a century ago, appointments to city offices could only be made by the mayor with the advice and consent of a convention of the two branches of the city council. Under that act, the mayor and the city council were the depository of the power to make appointments. To those two constituent, but separate and independent, departments of the city government, was the power of making appointments confined. But more than this, not only was a power thus conferred, but the method of its exercise was prescribed. The mayor nominated, and, by and with the advice and consent of the convention, appointed. This was not a power given to the municipality as a mere corporate entity, to be exercised like other corporate powers in the usual and ordinary way; but, having been given to the mayor and to the city council distributively, the manner of its exercise by them was specially and distinctively declared. The execution of the power was placed in the mayor and a convention of the two branches, but not in the branches separately. The method or manner of its exercise was therefore specifically pointed out. Obviously, so long as that provision remained unchanged by the legislature, no other or different method of exercising the power to make appointments could have been resorted to by the municipality, and neither the mayor nor the city council could have invaded the distinctive province of each other. What, then, was the effect of the act of 1828? Did it change the depository of power, or merely authorize the same depository to exert the power of appointment in some other manner which the municipality might by ordinance prescribe?
This act of 1828 was passed at the instance and upon the request of the mayor and city council. A resolution requesting the delegates from the city in the legislature to procure an amendment to the charter empowering the corporation to pass ordinances regulating the manner of appointing officers was presented to the general assembly; and, conformably to that request, the act, a draft of which accompanied the resolution, was adopted. The act of 1828 purported to be a supplement to the act of 1817, and provided, as stated before, that the mayor and city council might pass ordinances regulating the manner of making appointments to offices which "they" (that is, the mayor and city council) are or may hereafter be by law authorized to make, "anything in the second section of the act to which this is a supplement, to the contrary notwithstanding." This act gives a power, not to make appointments, but to regulate the manner of making such appointments, as "they" (the mayor and the city council) are, or may hereafter be, by law, authorized to make; and it does this notwithstanding there is "anything" to the contrary as to their power to regulate the manner of appointments contained in the act of 1817; but it neither in terms nor by implication interferes with the depository of power to make appointments. On the contrary, the legislature, recognizing that both the mayor and the city council, as separate, co-ordinate branches of the municipal government, had been clothed with the power to make appointments of municipal officers, was, in the act of 1828, careful to provide only a subsidiary power, by which the manner of making appointments might be regulated as to such officers as they (the mayor and city council, not the municipality, but the mayor and the city council as separate branches of the municipality) then had, or might thereafter have, the power to appoint. In effect, the act reaffirms the existence of the power of the mayor and of the city council, and then gives to the municipality, in its corporate capacity, the further power to pass ordinances,--whether with the approval of the mayor or over his veto is wholly immaterial,--whereby the manner of making appointments by the mayor and the city council, each having a voice, might be regulated. It was manifestly not the design of the act...
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