Creager v. Hooper

Russum, J., delivered the opinion of the Court. On the 16th day of March, 1896, the appellant filed his petition, in the Superior Court of Baltimore City, for a mandamus, directed to the Honorable Alcaeus Hooper, Mayor of Baltimore, to compel him to administer to the petitioner the oath of office as City Collector, setting up the passage of an ordinance, over the veto of the Mayor, and the election of the petitioner to said position by the City Council, in pursuance of the provisions of such ordinance. To that petition an answer was filed by the Mayor, in which he neither admitted nor denied some of the material averments of the petition, and denying the legality of the attempted action of the Council. To this answer the petitioner demurred, and, after argument, the demurrer was overruled and leave given to the petitioner to plead or traverse, and, upon his declining to do this, the Court dismissed his petition; from that order this appeal was taken. As it comes before this Court, the case does not in any way involve the merits of the controversy, but only technical questions of pleading. It is most unfortunate that in a case of this character, in which important public interests are involved, that this turn has been given to it, and the final determination of the cause upon its merits thereby delayed. The appellee first asks that this case be not heard at this term and contends that the appellant has no right to ask that it be so heard, claiming that the petitioner seeks to compel the performance of a mere ministerial duty, and that the title to an office is not involved. The Code, section 42, of Article 5, Public General Laws, provides for the — 501 — hearing of appeals by this Court, and in terms declares that in all cases where the title or right to a public office is involved the clerk of the Court in which it was heard shall forthwith transmit the original papers, and that this Court “ shall immediately hear and determine the case.” If then the right or title to a public office is “ involved ” in this proceeding, it is obligatory on this Court to hear and determine the cause without delay. The petition alleges that the relator was elected to the office of City Collector, and that he presented himself to the respondent, as Mayor of Baltimore, who alone was authorized under the law to administer the oath of office, and requested to be sworn in, but that his request was denied. The respondent denies the election of the petitioner and that the Council which attempted to elect him had any power so to do, and admits the allegation of the petition that the ground of the refusal to administer the oath was that he, the Mayor, did not regard the petitioner as legally elected. The real issue, therefore, is the legality of the election under which the relator claims. The Code of Public General Laws, section 5, of Article 70, makes the taking of the oath of office a qualification precedent, without which an individual cannot assume the duties, and while the act of administering the oath is a ministerial one so far as the Mayor is concerned, involving no exercise of discretion, it is essential to the induction into office. If the petitioner was duly elected, it was the duty of the Mayor to have administered the oath, and his refusal so to do would have inevitably raised the question of the right of the petitioner to the office of City Collector. This case, therefore, does involve the right or title to a public office, and is entitled to an immediate hearing and determination by this Court. Code, Art. 5, sec. 42. The appellee further asks that the appeal be dismissed upon the ground that the order from which the appeal was taken was not a final order; but this motion must be overruled. While it is true that no bill of exceptions was taken at the hearing of the cause below, yet the test to be — 502 — applied in a case like this is whether the order of the Court from which the appeal was taken was in the nature of a final order. Much of the former strictness which applied to mandamus proceedings has been done away with, and they have been made to approach more nearly to other forms of actions. Mandamus, it is true, is a legal remedy, yet there has been a growing disposition to invest it with many of the rights and forms which apply to equitable actions—the intent and purpose of the Courts being to get at the real issue or merits of the controversy, rather than to deal with the particular form in which they were raised. Had the case been that of a bill in equity, with demurrer to the answer overruled and the bill dismissed, or of a declaration in an action at law, with a judgment for defendant, after demurrer to the pleas, there could be no question as to the right of the plaintiff to appeal. So in this case. The dismissal of the petition was, necessarily, a termination of the case, unless the right of appeal existed and an appeal was taken. No judgment that the Court could have rendered could have more effectually disposed of the case and the order of dismissal was, therefore, a final order, from which the appeal could be taken, and the motion to dismiss is therefore overruled. In the lower Court the case was tried on demurrer to the answer. The demurrer was overruled because,'in the opinion of the learned Judge, “there are no admissions in the answer which show the facts in regard to the alleged passage ” of the ordinance. It is undoubtedly true, as argued by the counsel for the appellant, that the answer is uncertain and evasive. While in a proceeding by way of mandamus against .an individual he may aver that he has no personal knowledge of the facts alleged, and can therefore neither admit nor deny, as in the case of the People v. Ryan, 17 Mich. 159; yet, in the case of a public officer, and that officer the chief executive of a State .or municipality, he is and ought to be officially chargeable With knowledge of the acts of the legislative branch of the government. • It is a part of his duty to have such knowl — 503 — edge. His personal presence in the halls of legislation is not the sole means of acquiring knowledge, nor indeed is it the ordinary means of acquiring it. It is his bounden duty to know the acts of the co-ordinate branch of the government, acts which will come before him for approval, and to know the disposition of them when they have failed to receive his approval, in order that he may, in obedience to his oath, properly discharge the duties of his office. In this respect the answer of the respondent in this case is un~ candid and equivocal. It is argumentative where it should contain statements of facts, and is not such a full setting forth of the defences upon which he intends to rely as is required by section 3, of Article 60, of the Code. But the case being heard upon demurrer, the petition as well as the answer must be carefully scrutinized, and if any error is contained therein the effect of the demurrer to the answer is to mount up to the petition itself. Commercial Bank v. Canal Commrs., 10 Wend. 26; Poe’s Pleading, sec. 706, and cases cited in note 1. The petition sets forth the passage of an ordinance, the veto of it by the Mayor, and the passage of the same over his veto, "receiving the affirmative vote of three-fourths of the members of each branch of the City Council.” Then follows a videlicet giving the vote, which, in the first branch was fifteen members in the affirmative and four votes in the negative, and three members of said branch being absent. It is not necessary now to discuss what constitutes a branch, but it is clear that, if, as recited, the affirmative vote of three-fourths “ of the members ” was necessary for the passage over the veto, then the ordinance did not receive such vote; or if it did receive the vote of three-fourths of the members, then the statement of the vote as contained in the videlicet clause is wrong. The two are inconsistent and cannot be harmonized, nor can either be treated as surplusage. The petition was therefore defective on its face. In addition to this, the petition makes certain allegations of fact with respect to the passage of an ordinance of the — 504 — Mayor and City Council of Baltimore. Facts thus alleged should have been either admitted or denied. The answer with respect thereto was evasive, it is true, and to that extent was open to a motion to quash; but its language, “ neither admits nor denies,” is far from being an admission of the allegations of the petition, and, therefore, affirmative proof must be taken to support the allegations of the petition. Legg v. Annapolis, 42 Md. 222. The learned Judge below was, therefore, correct in overruling the demurrer and his order must be affirmed. (Decided June 18th, 1896). But though the ruling of the lower Court is affirmed, by section 20, of Article 5, of the Code, this Court is vested with the discretionary power, when in its judgment the ends of justice will be promoted, to remand a cause to the lower Court for trial upon its merits. This is manifestly a case for the exercise of that discretion. The merits of the controversy have never been passed upon by the Court, nor has the cause ever been in a condition that they could be passed upon, and not to remand it would be neither more nor less than a denial of justice. But, in remanding the cause it is proper to say that the questions involved are either those touching the passage or existence of an ordinance, or questions resulting directly therefrom, and therefore are questions which should be tried by the Court without the intervention of a jury. It is not every question of fact that is a question for the intervention of a jury. The passage and existence or non-existence of a statute or ordinance is a question of law, and though framed in form as an issue of fact, must, when it arises in the Courts, be decided by them on the evidence legally applicable thereto, without taking the advice of á jury on the subject. Ottawa v. Perkins, 94 U. S. 261 ; Berry v. Drum Point R. R. Co., 41 Md. 464; Legg v. Annapolis, 42 Md. 224. For these reasons the case will be remanded in order that it may be tried on its merits. Order affirmed and cause remanded.