State v. Kirkley

• Decision Date: 12 June 1869
• Parties: THE STATE OF MARYLAND, on the relation of THE MAYOR AND CITY COUNCIL OF BALTIMORE v. JOHN W. KIRKLEY, THOMAS C. BASSHOR, JAMES SMITH and THOMAS B. BURCH.
• Court: Maryland Court of Appeals

29 Md. 85

THE STATE OF MARYLAND, on the relation of THE MAYOR AND CITY COUNCIL OF BALTIMORE v. JOHN W. KIRKLEY, THOMAS C. BASSHOR, JAMES SMITH and THOMAS B. BURCH.

Court of Appeals of Maryland

June 12, 1869

APPEAL from the Superior Court of Baltimore City.

By Ordinance No. 58, of the Mayor and City Council of Baltimore approved September 25th, 1865, entitled "an Ordinance to provide for the building of a new City Hall," it was enacted that the Mayor should appoint, subject to the approval of the Council in convention, four persons, whose qualifications were prescribed, who, together with the Mayor should constitute the Building Committee of the new City Hall, whose duty it should be to superintend its erection. The Ordinance, besides a variety of details as to how the work should be done, &c., provided further by its ninth section, in order to meet the required disbursements, that the Commissioners of Finance should issue $500,000, of City Bonds, or so much thereof as should be necessary, from time to time, bearing interest at the rate of six per cent., per annum, payable semi-annually, and redeemable at the pleasure of the corporation, at any time after the 1st of July, 1893 the proceeds of said bonds, as disposed of, to constitute a fund in the hands of the City Register, to be applied to the erection of the new City Hall. By section eleven, of the same Ordinance, it was enacted that the Ordinance should have no effect, until the ninth section should be ratified and confirmed by the General Assembly of Maryland. On the 29th day of January, 1866, the General Assembly passed an Act entitled "an Act authorizing the Mayor and City Council of Baltimore to build a new City Hall."

At the January session of the City Council, in 1867, the appellees John W. Kirkley, Thomas C. Basshor, James Smith and Thomas B. Burch, were nominated by the Mayor and confirmed by the Council, as Commissioners to constitute the Building Committee of the new City Hall, accepted the appointment and entered upon their duties accordingly, with the Mayor as president of the committee. By the first section of Ordinance No. 48, passed at the same session, approved July 23d, 1867, entitled "an Ordinance supplementary to an Ordinance entitled "an Ordinance to provide for the building of a new City Hall,' approved the 25th day of September, 1865," the interest upon the bonds, directed to be issued by the ninth section of the original Ordinance, was required to be paid quarterly, instead of semi-annually, and said bonds were made redeemable at any time after the 1st of July, 1882, instead of 1893, and in addition to the amount of bonds authorized to be issued by the former Ordinance, the Commissioners of Finance were empowered, if necessary, to issue another $100,000, of City Bonds, upon the same terms. A tax of two cents on every hundred dollars of assessable property was also levied for the year 1868, for the purposes of a sinking fund, and so much of the ninth section of the original Ordinance, as might conflict with the provisions of the later and supplementary Ordinance, was repealed.

The question in the present case arises upon a petition filed December 12th, 1867, in the name of the State, on the relation of the Mayor and City Council of Baltimore, in the Superior Court of Baltimore city, impeaching the legality of the appointment of the appellees as said Building Committee, and of their official acts, and praying for a writ of mandamus to compel them to surrender to the relators the building plans and specifications for the new City Hall, in their possession, and to enjoin them from acting as the Building Committee, and from doing any act in official recognition of the contracts entered into by them.

The petition recited the provisions of the Ordinance of 1865, the adoption of plans and specifications for the building by the Mayor and City Council, the appointment of the appellees as the Building Committee, and their assumption to act as such, particularly by taking possession of the plans and specifications referred to, by entering into contracts with certain parties named, for work and materials, and by giving orders upon the City Register for the payment of money, in pursuance of such contracts. It alleged that section nine, of the Ordinance of 1865, had never been confirmed or ratified directly or indirectly, by the General Assembly of Maryland, and that section eleven, of said Ordinance had never been modified or repealed; that consequently said Ordinance never went into effect, and the appointment of the appellees as the Building Committee, and all the acts done by them by virtue of such appointment, were null and void.

The petition also charged the refusal (upon demand) of the appellees to deliver to the Relator the plans and specifications referred to, their continued assumption to act as the Building Committee of the new City Hall, and that the petitioner was remediless save by process of mandamus.

Under a rule to appear and show cause, the appellees appeared by counsel and filed their answer on the 6th of Jan'y, 1868.

The answer admitted that the plans and specifications referred to were in the possession of the appellees, but only in their official capacity as the Building Committee, and their refusal to surrender them, not as a denial of the Relator's property therein generally, but simply as an assertion of their own right to retain and use them in the discharge of their official obligations; also admitted the passage of Ordinance No. 58, of 1865, and the provisions of sections nine and eleven, but denied that said Ordinance had never been ratified or confirmed; and avered on the contrary that the Act of Assembly, January 29, 1866, was substantially and for all legal purposes a ratification and confirmation of said Ordinance, so that immediately from and after the passage of said Act, said Ordinance became operative. The answer further admitted that the eleventh section of the Ordinance of 1865, had never been in terms repealed, but averred that the restrictive effect of said section was destroyed by the Act of Assembly, and by the proceedings and acts of the Relator since its passage, and that the appointment of the appellees as the Building Committee in 1867, was a removal of the restriction of the eleventh section, and operated to make said Ordinance effective and binding, particularly in favor of third parties dealing with the committee in good faith, and within the scope of its powers.

The answer also admitted that contracts had been made by the committee for work and materials, and averred that such contracts were made in strict conformity with the requirements of the Ordinance, without bias, partiality or unfairness, especially without political or partisan preference, and that they were made not only fairly and impartially, but carefully, economically and prudently, and that in every case sufficient bond was exacted from the contractors for the performance of their contracts.

The answer recited the provisions of the supplementary Ordinance No. 48, approved July 23d, 1867, and averred that such Ordinance effectually confirmed the prior Ordinance, if it needed confirmation, and re-enacted it, if it needed re-enactment, doing away with the restrictive effect of section eleven; that the passage of said supplementary Ordinance after the appointment of the committee, and after they had entered upon their duties, with the knowledge and approbation of the Relator, was in itself a confirmation of such appointment, and of the acts of the committee; and that the City Solicitor so officially advised the Relator so late as November 11, 1867.

The answer averred that by the issue and negotiation of bonds by the City Commissioners of Finance, and the payment by the City Register of $26,000 upon certificates of the committee for work and materials under the contracts referred to, and by allowing the contractors to go on furnishing labor and materials, and entering into sub-contracts for the same, the Relator had further recognized and adopted the official acts, and confirmed the official authority of the appellees, and further conceded and established the validity of the Ordinances in question.

The cause having been heard, the Court (DOBBIN, J.) filed an order refusing the mandamus and dismissing the petition. From this order the present appeal was taken.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ROBINSON, J.

Robert D. Morrison and Wm. Henry Norris, for the appellant:

It has been ruled by this Court in the Mayor, &c. vs. Clunet, et al., 23 Md. Rep., 469, that it is competent for an Ordinance to be passed, contingent as to its operation, on the existence or occurrence of facts germane to the subject-matter of the Ordinance, "and the Ordinance must stand or fall, according to the construction of those provisions." The Ordinances of the Mayor and City Council of Baltimore, are to be construed and interpreted by the same rules and principles which guide the Courts in the exposition of laws by the General Assembly. For the ascertainment of those rules and principles, see Dwarris on Statutes, 9 Law Lib., 48, (top paging;) Alexander vs. Worthington, 5 Md. Rep., 485; Regina vs. St. Leonard, 68 E. C. L. R., 342; The King vs. Mabe, 30 E. C. L. R., 146; Green vs. Wood, 53 E. C. L. R., 185-6; Lawton vs. Hickman, 58 Eng. C. L. R., 590.

Let the principles of construction as thus ascertained be applied to the Ordinance of the Mayor and City Council of Baltimore passed on the 25th of September, 1865, premising that prior to this Ordinance no such office existed as the "Building Committee of the new City Hall." That Ordinance created the office. It only exists if that Ordinance exists and is operative. As under ...