Hooper v. New
| Decision Date | 08 April 1897 |
| Citation | 37 A. 424,85 Md. 565 |
| Parties | HOOPER, MAYOR, v. NEW. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court.
Petition for mandamus by Henry F. New against Alcaeus Hooper, mayor of Baltimore city. There was an order that the writ issue, on demurrer sustained to the answer, and defendant appeals. Affirmed.
Argued before McSHERRY, C.J., and BRYAN, BRISCOE, RUSSUM, FOWLER ROBERTS, PAGE, and BOYD, JJ.
Thos I. Elliott and Thos. G. Hayes, for appellant.
Chas Marshall and John P. Poe, for appellee.
The appellee was appointed, by a joint convention of the two branches of the city council, one of the school commissioners of Baltimore city, pursuant to the provisions of article 44 of the City Code of 1893. The ordinance therein contained makes provision for the appointment of school commissioners of the city by a joint convention of the two branches of the council. When the appellee presented himself to the mayor to have the oath of office administered by the mayor, the latter refused to administer the oath, and placed his refusal on the ground that the appellee had not been legally appointed. The mayor maintained that the appointment was illegal because the ordinance under which it had been made was ultra vires and void. And it was insisted that the ordinance was ultra vires and void because it is in conflict with section 30 of article 4 of the Code of Local Laws. That section is in these words: "They [[the mayor and city council] 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 of the city and the clerks employed by the city or under its authority," etc. Upon the refusal of the mayor to administer the oath of office to the appellee, he made application by petition to the city court for a writ of mandamus to compel the mayor to administer the oath. To this petition the mayor filed an answer relying upon the alleged illegality of the appellee's appointment, by reason of the asserted invalidity of the ordinance. To this answer the appellee demurred. The court sustained the demurrer, and ordered the writ to issue. From that order this appeal was taken by the mayor.
The paramount question involved is whether the ordinance under which the appellee was appointed a school commissioner of Baltimore city is valid, or ultra vires and void, and this question is presented and brought up directly on the face of the record. The question at issue arises, it is claimed, under the same section of the Code of Local Laws that was before us in the Hooper-Creager Case (recently decided by this court) 35 A. 967, and 36 A. 359. There is, however, a clearly-defined line of distinction between that case and many other cases that might arise under the same section, and which, if they did arise, it has been supposed, would be covered and controlled by that decision; but, in spite of this distinction, there appears to be some misunderstanding as to the scope and effect of the court's opinion in that case, and there also exists an impression that it is conclusive of the issue here involved. In Hooper v. Creager we were dealing with the case of a municipal officer, distinctively and confessedly such, the method of whose appointment was prescribed by a designated section of the Local Code, and with that section the ordinance under which Mr. Creager had been appointed was asserted to be in conflict. We did not have before us, and therefore did not pass upon, the case of a subordinate employé or laborer, or other like inferior servant, whose selection, in the very nature of things, was never designed or intended to be, and in fact is not, embraced within the terms of the statutes embodied in section 30 of article 4 of the Local Code. And, as we had no such question to decide, we deemed it wholly unnecessary to step aside a single pace from the straight path before us, and declare what particular appointments were not included within the scope of our decision. The duty of a court is done, as we apprehend, when it decides the case before it; and it is obviously no part of that duty to declare that the court has not decided something wholly different, or to enumerate, in anticipation of possible future contests, the instances in which, by reason of a difference of facts, the opinion would not be applicable. The language which a court employs, the reasoning which it resorts to, for the purpose of disposing of a particular question, ought not to be wrested from the context and the occasion, and strained so as to be made pertinent, or seemingly pertinent, to some other distinct and dissimilar question. But this is frequently done incautiously, and some persons are by that erroneous process led to suppose that results are established by a judicial opinion, though those results do not logically follow from it at all. There may be sometimes an apparent similarity between cases, but it ought not to be forgotten that mere similarity is not identity. It is a common fallacy, this inference that a conclusion is universally, and under all conditions, sound, because it is sound in a particular instance and under peculiar circumstances. It does not follow that a conclusion which is true secundum quid, or in a certain respect, is also true simpliciter, or simply and absolutely. In the Creager Case we were dealing with an ordinance regulating, or attempting to regulate, the manner of appointing persons "to office,"--to a municipal office,--and not with an ordinance regulating the method of employing or appointing servants or laborers, and kindred subordinates, who are in no sense officers of the municipality at all, but are merely and essentially employés. Consequently the language used in the opinion in that case must be understood as applicable to municipal officers,--the class of persons designated in section 30 of article 4,--as contradistinguished from mere employés. Nor does the Creager Case touch upon or involve the specific point now presented. If the school commissioners are municipal officers, and if there had not been any legally prescribed mode provided for their appointment other than that contained in section 30 of article 4, which applied to Mr. Creager's appointment, then undoubtedly the mode of selecting school commissioners would be within the reason, and therefore within the effect and operation, of the decision in the Creager Case. But it is right here that the Creager Case and this case diverge. It is precisely because section 30 of article 4 does not apply to school commissioners any more--though for a different reason--than it applies to a bailiff in the tax collector's office, an employé under the city commissioner, or hundreds of other subordinates in the service of the city, that what was said in Creager v. Hooper can have no influence upon the decision of this case. If it be assumed, though it is by no means conceded (and certainly it is not now decided), that the school commissioners are municipal officers, as contradistinguished from agents of the state selected by the municipality, under power delegated by the state, to carry on within the limits of the city the beneficent purpose of the general school system of the commonwealth,--just as a state tax collector in a county is an officer of the state, though selected by the county commissioners,--still the predominant proposition that their appointment does not fall within the terms of section 30 of article 4 of the Local Code remains to be demonstrated. If their appointment does not fall within that section, we have no further need or occasion to allude to the Creager Case hereafter, in this opinion.
Now what is the method provided for the appointment of the school commissioners of Baltimore city, and under what authority was the method adopted? The Local Acts of 1825, c. 130, declare "that the mayor and city council of Baltimore shall have power to establish public schools within the city of Baltimore"; and section 21 of chapter 162 of the General Laws passed at the same session of the legislature vested in the mayor and city council the authority to establish and regulate the public or primary schools of the city. Under these statutes, and pursuant to their design, an ordinance was passed by the municipality in 1828 by which it was, among other things, provided that the commissioners of public schools should be chosen by the two branches of the city council in convention; and this prescribed method thus specifically fixed by that and by subsequent amendatory ordinances, apart from being recognized by the Acts of 1845, c. 120, was fully and completely ratified, sanctioned, and validated afterwards, even if antecedently invalid, by the organic law of the state; for by section 3 of article 8 of the constitution of 1864 it was expressly ordained that "the school commissioners of Baltimore city shall remain as at present constituted, and shall be appointed as at present, by the mayor and city council, subject to such alterations and amendments as may be made from time to time by the general assembly or the said mayor and city council." It should be noted that this constitutional provision prescribed two things: First, it declared that the school commissioners of the city should remain as then constituted; and, secondly, looking to the future, it ordained that they should afterwards "be appointed as at present,"--that is, in the mode then existing. The constitution of 1864, therefore, not only ratified the then subsisting method of appointment,...
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