Hooper v. Creager

• Decision Date: 03 December 1896
• Citation: 35 A. 1103,84 Md. 195
• Parties: HOOPER, MAYOR, v. CREAGER.
• Court: Maryland Court of Appeals

35 A. 1103

84 Md. 195

HOOPER, MAYOR, v. CREAGER.

Court of Appeals of Maryland

December 3, 1896

For majority opinion, see 35 A. 967.

RUSSUM J. (dissenting).

Notwithstanding the high esteem in which I hold the judgments of my learned brothers, I am unable to concur in their conclusions in this case, and it is proper that I should give the reasons for my dissent. We agree in everything except the proper construction of the charter of Baltimore city, contained in article 4 of the Code of Public Local Laws, and the extent to which the acts of 1817 (chapter 148) and of 1828-29 (chapter 114) should control that construction. This court has in several cases considered the effect of the omission of acts and parts of acts from the Code of Public General and Public Local Laws, and laid down the rules by which the Code should be construed.

In the case of Mayor, etc., v. Groshon, 30 Md. 443 Johns v. Doe,

33 Md. 523, Judge Stewart, delivering the opinion of the court, said: "The legislature designed to preserve all that was needful, and to discard what was obsolete or inapplicable, and relieve the statute book from all useless matter. * * * Where its language is the same as that of any antecedent law, the well-established construction is to be regarded. If the terms are substantially different, they must have their plain and obvious interpretation, and not be strained to conform to previous legislation." It "is to be understood and expounded according to the law establishing it as a substitute, and such meaning must be given the language employed as a just construction will warrant." Again, in the case of Trustees v McKinstry, 75 Md. 189, 23 A. 471, in which the omission of the second section of the act of 1884 (chapter 293), relating to the execution of wills, from the Code of 1888, was passed upon, this court, through the present learned and distinguished chief justice, said: "If the statute law of Maryland had stood, at the date of the death of Miss McKinstry, as it did stand before, and for more than five years after, the execution of her will, that paper would have been admitted to probate as a valid will of personal property. * * * But in the recent codification of the law, the second section of the act of 1884 which carefully and liberally protected from the operation of the act all wills made prior to August 1, 1884, was omitted and is consequently no longer the law of the land."

Having these decisions in view, let us examine Acts 1817, c. 148, § 2, and Acts 1828-29, c. 114, and see how far they have been incorporated into article 4, Code Pub. Loc. Laws, and are now a part of the charter of Baltimore city, and how far they have been "repealed," "discarded as obsolete," and, by its adoption, "are no longer the law of the land." The second section of the act of 1817 provides that the annual session of the city council shall begin on the first Monday in January; that two-thirds of each branch shall be a quorum to do business; that all persons holding offices under the corporation shall hold during the pleasure of the mayor, unless otherwise provided for by acts of assembly or by ordinances of the city,--and then proceeds as follows: "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 the register of the city, and the clerks employed by the city, or under their authority." The act of 1828-29 (chapter 114), which was passed as a supplement to the act of 1817, and in accordance with a joint resolution of the mayor and city council, requesting that the charter be so changed as to empower the corporation to pass ordinances "regulating the manner" of appointing city officers, is as follows: "That the mayor and city council of Baltimore 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." Section 30, art. 4, Code Pub. Loc. Laws, tit. "Baltimore City," 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 the register," etc. A careful comparison of these acts of assembly with each other and with the Code will show (1) that, after the passage of the act of 1828-29, the power of appointment to office under the corporation was taken from the mayor, and transferred to the corporation, in obedience to the request of the mayor and city council; and (2) that, by the adoption of the Code, the charter was entirely changed, by the omission of all authority in the mayor to appoint persons to office, except in the event that ordinances were not passed "regulating the manner" of their appointment. The first of these propositions is conclusively proven by the language of the act of 1828-29, which authorized the "mayor and city council of Baltimore" to pass ordinances "regulating the manner of appointing persons to office under said corporation,"--meaning thereby the corporation whose name is the "Mayor and City Council of Baltimore." As was well said by the learned judge below, "If it was intended by the legislature that they should each, or either, continue to be necessary constituents in the act of appointment, what possible purpose was there in the passage of the act?" The second of these propositions is proven by the addition in the Code of the words, "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 the register," etc. The addition of these words made an entire change in the charter of Baltimore city, so far as the mayor's power of appointment of persons to office was concerned, by omitting therefrom the positive and unequivocal authority to make such appointments, and limiting it to the contingency of a failure on the part of the corporation to "pass ordinances regulating the manner" of making them. The act of 1817 (chapter 148), having been repealed by the adoption of the Code, cannot be revived by construction. Pingree v. Snell, 42 Me. 53; Ellis v. Paige, 1 Pick. 45; 23 Am. & Eng. Enc. Law, 487, and cases there cited. Any other construction would render the change made by the legislature meaningless, and operate as a judicial reconstruction of section 13, by excepting from its provisions all ordinances relating to the making of appointments to office. The cases of State v. Popp, 45 Md. 432, Maurice v. Worden, 52 Md. 283, and Dorsey's Lessee v. Garey, 30 Md. 499, do not conflict with this construction. In Popp's Case it was merely decided that, in construing the Code, all parts in pari materia must be read together, regardless of the heading under which they are found, and in the other cases, where the meaning of the original act was looked to, the language in the Code was either identical or substantially the same as that in the original acts, and they come fully within the canons of construction laid...