Upshur v. Ward

• Decision Date: 01 April 1902
• Citation: 51 A. 828,94 Md. 778
• Parties: UPSHUR et al., Police Com'rs. v. WARD.
• Court: Maryland Court of Appeals

51 A. 828

94 Md. 778

UPSHUR et al., Police Com'rs. v. WARD.

Court of Appeals of Maryland

April 1, 1902

Appeal from superior court of Baltimore city; George M. Sharp Judge.

Petition for mandamus by Bernard J. Ward against George M. Upshur and others, constituting the board of police commissioners of the city of Baltimore. From an order directing the issuance of the writ, defendants appeal. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, SCHMUCKER PAGE, PEARCE, and JONES, JJ.

Alonzo L. Miles, for appellants.

Edgar H. Gans and Roger W. Cull, for appellee.

FOWLER J.

The appellants are Messrs. Upshur, Morris, and Fowler, who constitute the board of police commissioners of Baltimore city, and the appellee is Bernard J. Ward. The latter filed a petition in the superior court asking for a writ of mandamus to issue against the former to restore him "to the office of captain of the permanent police force" of that city. The board filed an answer to this petition, on which answer the plaintiff in part joined issue, and to which it in part demurred. The case was tried before the court without a jury, and, after disposing of the various propositions of law which were submitted by both plaintiff and defendant, an order was passed directing that the writ of mandamus should issue as prayed. From this order the board of police commissioners, the defendants below, have appealed. We deem it unnecessary to discuss the various rulings of the court below, or to consider the many interesting questions argued at bar; for, in our opinion, there is one controlling question, the solution of which will entirely dispose of this case. That question is as to the effect upon this controversy of the Acts of 1900 (chapters 16 and 425). In order to consider this question, we will briefly state a few of the conceded facts of the case: The plaintiff was appointed as captain of police on July 12, 1897. At the meeting of the board at which this appointment was made there were only two of three members present constituting the board; the remaining member, Commissioner Heddinger, being absent from the state. At this meeting, however, a letter from the absent member was produced, by which he undertook to vote for the appointment of the plaintiff, and it was in this way that he was elected. He continued to act as captain of police until the 13th September, 1901, when he was removed from that position by the board for the reasons set forth in certain resolutions passed on that day. It is sufficient to say that the reasons given in these resolutions for the action of the board in dismissing the plaintiff from the force are: First that at the meeting at which he was appointed there were only two members of the board present, one of whom voted for, and the other against, the appointment of the plaintiff, and that the appointment was therefore in fact made upon the vote by mail of Mr. Heddinger, who was then out of the state; and secondly, that at the time of his appointment the plaintiff was ineligible for the position of captain, under the rules of the department; and, thirdly, that it therefore followed that the plaintiff was an officer de facto merely, performing the duties of captain without having been permanently appointed to that office in accordance with law. For these reasons the plaintiff was, as we have said, removed on the 13th September, 1901,--not upon any written charges, but because, in the opinion of the board, he had never been regularly or legally appointed.

While we will not, as we have said, consider the question here presented as to the validity or legality of the appointment of the plaintiff, we do not wish our silence upon that question to be construed as a tacit approval by this court of the method adopted by the board in this particular case. Assuming, therefore, without so deciding, that the appointment of the plaintiff as captain of the police force of Baltimore city was illegal, in the sense that he was not duly appointed in accordance with provisions and requirements of the laws passed by the legislature to control the board of police commissioners in the selection of the officers and men who compose the force, and that his reappointment on 19th July, 1901, was also irregular for the same reasons that this original appointment was invalid, we will briefly consider the provisions of the legislation of 1900.

It is apparent from the face of these acts, and it is a matter of general knowledge, that the object of the legislature was to free the men and officers of the police force of Baltimore city from any arbitrary interference on the part of the board of police commissioners. Hence by chapter 16 a board of examiners was created, which, among other...