Hooper v. Farnen
| Decision Date | 08 April 1897 |
| Citation | 37 A. 430,85 Md. 587 |
| Parties | HOOPER, MAYOR, ET AL. v. FARNEN ET AL. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court.
Petition for mandamus by Joseph L. Farnen and others, as the board of school commissioners of Baltimore city, against Alcaeus Hooper, mayor of Baltimore city, and Lucius P. Bunnell and others, claiming to be the board of school commissioners of said city. There was an order that the writ issue on demurrer sustained to the answer, and defendants appeal. Affirmed.
Argued before McSHERRY, C.J., and BRYAN, BRISCOE, RUSSUM, FOWLER ROBERTS, PAGE, and BOYD, JJ.
Thos I. Elliott and Thos. G. Hayes, for appellants.
Chas Marshall and John P. Poe, for appellees.
The mayor of Baltimore, in January last, acting on the assumption that the old school board had not been legally constituted, appointed a new board during the recess of the city council. The new board at once took possession of the apartments in the city hall usually occupied by the school commissioners, seized upon the books, records, documents, and furniture belonging to the school commissioners of Baltimore city, forcibly ejected the old board from their official quarters, and proceeded, it is alleged, unlawfully and wrongfully to exercise the functions, powers, and authority which rightfully belonged to the relators. Thereupon the gentlemen composing the old board collectively filed a petition in the city court praying that a writ of mandamus might be issued against the mayor and the gentlemen appointed by him as the new school board, requiring them and each of them, individually and collectively, "as said pretended board of commissioners of public schools of Baltimore city," to restore to the relators, "as the legal board of public school commissioners of Baltimore city, the free and unobstructed use of the official quarters and rooms in the city hall set apart for the use of the board of commissioners of public schools, * * * and to surrender and deliver" to the relators, "as such board, all the books, records, documents, papers, and archives of every description belonging to" the relators "as such rightful board." The mayor and the other respondents, claiming to be the lawfully constituted commissioners of public schools, filed an elaborate answer, in which they averred that the mayor had, under the city charter, the power to remove the old board; and that, the positions of school commissioners being vacant in January by reason of the old board not having been legally selected, or in consequence of the removal of the commissioners by the mayor, the latter official had, by express provision of law, the authority to fill those vacancies by appointment, which it is claimed he lawfully did do during the recess of the city council. The answer then proceeds to insist that the writ should not issue, because the custody of the room and the possession of the books, papers, and records alluded to in the petition are, under the ordinances of the city, not under the control of the respondents, but in charge of the secretary whom they appointed. It is further contended by way of defense that the relators ought not to have been joined as petitioners, and that the respondents ought not to have been united as defendants in one proceeding. To the answer the relators demurred, and the court below sustained the demurrer. From the order subsequently passed directing the writ to issue as prayed, this appeal was taken by the mayor and the new board.
Having decided in the case of Hooper v. New, 37 A. 424 that the members of the old board had been duly and lawfully selected, and were, consequently, entitled to be sworn in or qualified, the inquiry now is whether the mayor had the power to remove the old board, or to declare the places held by its members vacant, and to appoint their successors. This is the controlling question raised by the demurrer to the respondents' answer. The removal, or attempted removal, was made by the mayor on January 11, 1897, and the method by which it was effected is thus stated by the mayor himself in a letter addressed by him to Mr. John T. Morris: "I would say that, in conformity with my expressed intention contained in my communication to you of the 8th inst., I have removed the gentlemen who have heretofore acted as the school board by the appointment and qualification of the gentlemen who have met and organized, and who are now in charge, and whom I solely recognize as the legally constituted school board of Baltimore city." In a subsequent letter the mayor notified Mr. Morris that he would not permit the old board to occupy any of the apartments of the city hall. The removal was summarily made, without charges of any kind having been preferred, or a hearing of any sort having been accorded. The power to remove a municipal officer from an office having a definite term, before that term has expired, is quite distinct and different from a power to displace an officer whose tenure is dependent solely on the will or pleasure of the appointing authority. Townsend v. Kurtz, 83 Md. 331, 34 A. 1123; Miles v. Stevenson, 80 Md. 358, 30 A. 646. The distinction is plainly recognized in section 31, art. 4, Code Pub. Loc. Laws,--the very section under which the mayor acted in attempting to remove the old board. Confessedly, if he did not act under that section, there is no other provision of law which furnishes the slightest color of authority or justification for his proceeding. By that section two conditions are provided for: First, it is declared that "all persons holding office under the corporation of the city of Baltimore shall, unless otherwise provided by law or ordinance, hold their respective offices during the pleasure of the mayor"; and, secondly, it is enacted that "no person holding office by appointment of the said mayor" shall, if a defaulter to the city, or if not a citizen of the United States and the state of Maryland, or (unless a female) if not a registered voter of the city, "hold any office of emolument, trust, or profit" under...
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