State ex rel. O'Neill v. Register

• Decision Date: 01 February 1883
• Citation: 59 Md. 283
• Parties: STATE of MARYLAND, EX relatione JOHN V. P. O'NEILL v. SAMUEL W. REGISTER, and others, Fire Commissioners of the City of Baltimore.
• Court: Maryland Court of Appeals

59 Md. 283

STATE of MARYLAND, EX relatione JOHN V. P. O'NEILL v. SAMUEL W. REGISTER, and others, Fire Commissioners of the City of Baltimore.

Court of Appeals of Maryland

February 1, 1883

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

The cause was argued before MILLER, STONE, ALVEY, ROBINSON IRVING, and RITCHIE, J.

Charles J. Bonaparte, and William Reynolds for the appellant.

Thomas W. Hall, City Solicitor, and John P. Poe, City Counsellor, for the appellees.

IRVING J., delivered the opinion of the Court.

On the 2nd of December, 1878, the relator was appointed by the Fire Commissioners, foreman of an engine company in the Fire Department of Baltimore City. This position he held under successive re-appointments, in accordance with the practice of the Fire Commissioners, until October 21st, 1881, when he received notice of dismissal "from the service of the department for disrespect to your superior officer." Upon the 21st of April, 1882, the relator filed his petition in the Court of Common Pleas of Baltimore City, for a mandamus upon the Fire Commissioners of Baltimore to restore him to his place, and to pay him the salary thereof.

The petition, in substance, charges that the petitioner has been unlawfully discharged, without notice of any accusation against him, or any investigation by the Fire Commissioners; that he had been guilty of no disrespect to his superior officers; that he never had been tried, or had opportunity of defence; and that his discharge was for political sentiments entertained by him, and other opinions entertained, to wit, "that divers of the Fire Commissioners were unworthy of their offices, and unfit to discharge their duties, by reason of certain facts to him personally known."

The answer admits the appointment of the relator, and alleges his appointment in the spring of each year, in accordance with the practice of the department since its re-organization in 1868, and his dismissal, as charged in the petition, for "disrespect to his superior officer," wherein they claim to have acted in strict conformity with the ordinances of the Mayor and City Conncil, and in nowise transgressed the discretion vested in them by such ordinances. The answer denies that the removal was because of political, religious or other sentiments entertained by the relator which did not interfere with the faithful and efficient discharge of his duties as an employe of the Fire Department.

The respondents deny that there is any law or ordinance entitling the relator to hold his place against the judgment and consent of the Fire Commissioners; and deny that they are not the sole judges "of his willingness, capacity and efficiency to discharge his duties" to their satisfaction; which judgment has been evidenced by his dismissal from the service; and they insist, that the sentiments expressed in the petition and reflecting upon the respondents, furnish evidence of lack of willingness to discharge his duties harmoniously and satisfactorily.

The answer also charges that when this petition was filed the full term of one year for which petitioner was appointed in March, 1881, had expired and another person had been appointed, and was then filling the position.

To this answer the relator pleaded in substance,

1. That his original appointment could not be limited in duration by any practice of annual election.

2. Denies that the Commissioners have not transcended the power and discretion vested in them by the ordinance.

3. He joins issue on the denial that he was removed for political or religious opinions, &c.

4. He joins issue on the denial, that there is any law or ordinance entitling him as matter of right to retain his position against the judgment of the Fire Commissioners.

5. He denies that any allegations of his petition furnish evidence of his unwillingness satisfactorily and with due respect to superiors in office, to discharge his duties.

6. He denies that his full term had expired, or that there has been any vacancy or appointment thereto.

7. He demurs to all other matters alleged in the answer.

The respondents joined in demurrer, and the case was then submitted to the Court upon the pleadings and certain agreed statements of fact. The mandamus having been refused, this appeal was taken.

By the City Code of 1879, Article 20, section 3, it is provided, that the "Fire Commissioners shall have the appointment of, and entire control over, all other employés and property of the Fire Department."

The fifth section of this Article is the section upon the construction of which the appellant's case hinges; and that section is as follows: "The Fire Department of the City of Baltimore shall consist of five commissioners, one chief engineer, two assistant engineers, one clerk, seven engine companies, each consisting of one foreman, one engineman, one assistant engineman, one hostler and eight firemen; and two hook and ladder companies, each consisting of one foreman, one tillerman, one hostler, and ten laddermen, all of whom shall be of good character, and except those especially provided for in this ordinance, shall be appointed by the Fire Commissioners, and shall be entitled to retain their respective positions, for such time as they evince willingness and capacity to discharge the duties pertaining thereto efficiently, harmoniously with their associates, and satisfactorily to the Fire Commissioners said employés shall not be subject to removal on account of any political, religious or other sentiments entertained by...