West v. Musgrave

• Decision Date: 08 December 1927
• Docket Number: 46,47.
• Citation: 139 A. 551,154 Md. 40
• Parties: WEST ET AL. v. MUSGRAVE. WEST ET AL. v. BURGESS.
• Court: Maryland Court of Appeals

139 A. 551

154 Md. 40

WEST ET AL. v. MUSGRAVE.

WEST ET AL. v. BURGESS.

Nos. 46, 47.

Court of Appeals of Maryland

December 8, 1927

Appeal from Baltimore City Court; Albert S. J. Owens, Judge.

"To be officially reported."

Separate applications for mandamus by Mortimer W. West and another against Thomas L. A. Musgrave, and by Mortimer W. West and another against J. Warren Burgess. From judgments dismissing the petitions, petitioners separately appeal. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Edgar Allan Poe and Isaac Lobe Straus, both of Baltimore, for appellants.

Simon E. Sobeloff, of Baltimore (Roland R. Marchant, Enos S Stockbridge, William M. Kerr, and Daniel Ellison, all of Baltimore, on the brief), for appellees.

SLOAN J.

There were two petitions filed in the Baltimore city court by the appellants as citizens and taxpayers of Baltimore to test the qualifications and eligibility of the respective appellees Thomas L. A. Musgrave and J. Warren Burgess, to membership in the city council of Baltimore, to which they had been elected.

The petitioners alleged that the appellees, at the time of their election, did not possess the property qualifications, and had not paid taxes thereon one year prior to such election as required by section 210 of the Baltimore City Charter; that the appellees had been returned elected as members of the city council at an election held May 3, 1927, and, on May 19, 1927, presented themselves to Hon. William F. Broening, mayor of Baltimore, who thereupon administered to them the oath required to be taken by members of the city council; that on June 6, 1927, at a session of the city council, by a vote of 11 to 8, the appellees were held to be duly qualified according to law; and the "petitioners, feeling aggrieved by said finding and decision, have brought this proceeding in order that the alleged disqualification of the defendants may be judicially determined," and the petitioners pray for writs of mandamus commanding the appellees to vacate and cease exercising any of the functions of their offices.

On the petitions, rules were laid on the defendants requiring them to show cause on or before June 23, 1927, why writs of mandamus should not issue as prayed. On June 22d the defendants demurred to the petitions, and the city court passed orders extending the time for answering until fifteen days after the determination on the demurrers. Upon argument on the petition and demurrer, the city court, Judges Owens, Frank, and Stanton, filed a very able and exhaustive opinion, in which they held that section 217 of the city charter furnished the petitioners a specific and adequate remedy, and for that reason mandamus would not lie, and orders were entered sustaining the demurrers and dismissing the petitions, from which these appeals were taken.

It is contended by the appellants that mandamus is the proper and only effectual remedy to try the title of the appellees to their respective offices, while the appellees contend that the Baltimore city charter provides a specific and adequate, and the exclusive, remedy.

The city court expressed some doubt of the propriety of a demurrer, in view of the provisions of article 60 of the Code, prescribing the procedure in mandamus, whereby the defendant, by a day named in the order on the petition, shall file an answer "fully setting forth all the defenses upon which he intends to rely." Section 3. The city court said the demurrers were "recognized by both sides to be the appropriate pleading, and the court, therefore, so accepts it." This court, however, has gone farther than that in the case of Pumphrey v. Baltimore, 47 Md. 145, 147, 28 Am. Rep. 446, where Judge Bartol said:

"The defendant demurred to the petition and by consent of counsel a pro forma judgment was rendered for the defendant, reserving the right of appeal. The question presented is the sufficiency of the matters alleged in the petition to entitle the appellant to the writ."

While the practice of receiving demurrers to petitions in mandamus proceedings has been recognized by this court, it has been held in Legg v. Annapolis, 42 Md. 203, 223, Sudler v. Lankford, 82 Md. 142, 148, 33 A. 455, and in Beasley v. Ridout, 94 Md. 641, 648, 52 A. 61, that a demurrer cannot be taken to admit the facts alleged in the petition, and, if overruled, the writ cannot be peremptorily granted without any further proceedings.

Section 210 of Baltimore City Charter fixes the citizenship, age, residence, property, and tax qualifications of members of the city council, and section 217 provides, among other things, that "the city council shall judge of the election and qualification of its members, subject to appeal by petition of the party aggrieved to the Baltimore city court." These provisions were adopted by a vote of the people of Baltimore November 7, 1922, and authorized by article 11A of the state Constitution, which, by section 4, provides that:

"From and after the adoption of a charter under the provisions of this article by the city of Baltimore or any county of this state, no public local law shall be enacted by the General Assembly for said city or county on any subject covered by express powers granted as above provided."

This then, is a statute which the people of Baltimore have adopted for their government, whereby they prescribe certain qualifications for those charged with the administration of their public affairs, and a procedure for the testing of their qualifications. The people of Baltimore designated the Baltimore city court as the tribunal to which "persons aggrieved" at the action of the city council should go for a judicial determination of their grievances, if they felt the council had accepted as a member one who was not qualified, or rejected one who was qualified. There is abundant authority for saying that, where the law makes a city council the judge of the qualification of its members, it has exclusive jurisdiction, not subject to review by the courts. Seay v. Hunt, 55 Tex. 545; People v. Harshaw, 60 Mich. 200, 26 N.W. 879, 1 Am. St. Rep. 498; Foley v. Tyler, 161 Ill. 167, 43 N.E. 845; Stearns v. Wyoming, 53 Ohio St. 352, 41 N.E. 578; 7 McQuillan on Municipal Corporations, § 471, the latter citing Spitzer v. Martin, 130 Md. 428, 100 A. 739, as authority for this rule. Section 217, while making the city council the judge of the qualifications of its members,...