Hooper v. Farnen

McSherry, C. ]., delivered the opinion of the Court. The Mayor of Baltimore in January last, acting on the assumption that the old School Board had not been legally constituted, appointed a new board during the recess of the City Council. The new board at once took possession of the apartments in the City Hall usually occupied by the School Commissioners, seized upon the books, records, documents and furniture belonging to the School Commissioners of Baltimore City, forcibly ejected the old board from their official quarters, and proceeded, it is alleged, unlawfully and wrongfully to exercise the functions, powers and authority which rightfully belonged to the relators. Thereupon the gentlemen composing the old board collectively filed a petition in the City Court praying that a writ of mandamus might be issued against the Mayor and the gentlemen appointed by him as the new School Board, requiring them and each of them individually and collectively “as said pretended Board of Commissioners of Public Schools of Baltimore City,” to restore to the relators, “as the legal Board of Public School Commissioners of Baltimore City, the free and unobstructed use of the official quarters and rooms in the City Hall, set apart for the use of the Board of Commissioners of Public Schools, * * ' * * * * and to surrender and deliver ” to the relators, “ as such board, all the books, records, documents, papers and archives of every description belonging to” the relators “as such rightful board.” The Mayor and the other respondents claiming to. be the lawfully constituted Commissioners of Public Schools, filed an elaborate answer in which they averred that the Mayor had, under the city charter, the — 595 — power to remove the old board; and that the positions of School Commissioners being vacant in January by reason of the old board not having been legally selected, or, in consequence of the removal of the Commissioners by the Mayor,, the latter official had, by express provision of law, the authority to fill those vacancies by appointment, which, it is claimed, he lawfully did do during the recess of the City Council. The answer then proceeds to insist that the writ should not issue, because the custody of the room and the possession of the books, papers and records alluded to in the petition are, under the ordinances of the city, not subject to the control of the respondents, but are in charge of the secretary whom they appointed. It is further contended by way of defence that the relators ought not to have heen joined as petitioners, and that the respondents ought not to have been united as defendants in one proceeding. To the answer the relators demurred, and the Court below sustained the demurrer. From the order subsequently passed directing the writ to issue as prayed this appeal was taken by the Mayor and the new board. Having decided in the case of Hooper v. New, ante,p. 565, that the members of the old board had been duly and lawfully selected, and were consequently entitled to be sworn in or qualified; the inquiry now is whether the Mayor had the power to remove the old board of to declare the places held by its members vacant, and to appoint their successors ? This is the controlling question raised by the demurrer to the respondents’ answer. The removal or attempted removal was made by the Mayor on January the eleventh, 1897, and the method by which it was effected .is thus stated by the Mayor himself in a letter addressed by him to Mr. John T. Morris ; “ I would say that in conformity with my expressed intention contained in my communication to you of the 8th inst. I have removed the gentlemen who have heretofore acted as the School Board, by the appointment and qualification of the gentlemen who have met and organized and who are now in — 596 — ■charge, and whom I solely recognize as the legally constituted School Board of Baltimore City. ” In a subsequent .'letter the Mayor notified Mr. Morris that he would not per•mit the old board to occupy any of the apartments of the City Hall. The removal was summarily made, without charges of any kind having been preferred or a hearing of any sort having been accorded. The power to remove a municipal officer from an office having a definite term, before that term has expired, is quite distinct and different from a power to displace an officer whose tenure is dependent solely on the will or pleasure of the appointing authority. Townsend v. Kzutz, 83 Md. 331; Miles v. Stevenson, 80 Md. 358. The distinction is plainly recognized in sec. 31 of Art. 4, Code of Public Local Laws, the very section under which the Mayor acted in attempting to remove the old board. Confessedly, if he did not act under that section there is no other provision of law which furnishes the slightest color of authority or justification for his proceeding. In that section two conditions are provided for. First. It is declared that “all persons holding office under the corporation of the city of Baltimore .shall, unless otherwise provided by law or ordinance, hold their respective offices during the pleasure of the Mayor :and, secondly, it is enacted that “no person holding office by appointment of the said Mayor ” shall, if a defaulter to the city, or, if not a citizen of the United States and the State of Maryland, or (unless a female), if not a registered voter of the city, “ hold any office of emolument, trust or profit” under the municipality; and it is made the duty of ±he Mayor upon written complaint being filed with him “ involving any one of the above enumerated causes * * * to immediately revoke * * * * any commission issued by him, and vacate * * * * any appointment made by him,” if the charges are sustained by competent proof, adduced upon a full and fair investigation of the accusation. Now, it is perfectly obvious that the first contingency provided for by the statute has exclusive relation — 597 — to those officers whose tenure of office is not fixed by some law or some ordiñance. In those instances, that is, where the duration of the term of the office is not fixed, the statute limits the tenure to the pleasure of the Mayor; or in other words, provides that all officers for whom a definite term is not prescribed shall hold merely at will, and the power to remove in such cases is essentially included in the power to terminate the tenure. As the term of office of the School Commissioners of Baltimore — a term of four years — is defined and regulated by ordiuance, passed pursuant to law, they are not within the first category, and do not hold their offices “ during the pleasure of the Mayorand as they do not hold office during the pleasure of the Mayor he cannot at his mere will terminate their tenure. The second contingency provides for a removal of officers appointed by the Mayor; and the causes are prescribed for which such a removal may be made. Before the power thus given can be exerted it must appear, first, that the officer sought to be removed is one who had been appointed by the Mayor; and, secondly, that at • least one of the three causes named in the statute, not only has been alleged, but has been sustained by competent proof upon a full and fair investigation. The School Commissioners whom the Mayor undertook to remove were not officers appointed by him at all. He had no part in their selection. They had been chosen by a joint convention of the two branches of the City Council, under and pursuant to the requirements of a valid ordinance. No complaint in writing was made against them alleging that they were defaulters to the city; that they were not citizens ; or that they were’ not registered voters in the city; Their removal was not, and could not, therefore, have been legally made under the second of the contingencies mentioned in sec. 31, Art. 4, Local Code; and as there is no other legislation conferring upon the Mayor a power to make removals, it is clear that his attempted removal of the. members of the old board was wholly unwarranted; and being unwarranted was necessarily ineffectual, and, consequently, created no vacancies. — 598 — Nor can sec. 46 of Art. 1 of the Baltimore City Code of 1893 enlarge the power given to the Mayor by sec. 31, Art. 4 of the Public Local Code, in respect of making removals. Sec. 46 provides as follows : ‘ ‘A term of holding shall not be deemed to be created by any resolution or ordinance so as to affect the power of removal given to the Mayor by Article IV, section 31 of the Public Local Laws, because such resolution or ordinance may prescribe that such officer or officers may or shall be appointed bi-annually, or in the month of February, or as other city officers are appointed, or by any like expression indicating a periodical duty of appointment, and such words shall not be deemed and taken as otherwise providing by law or ordinance, so as to annul the power of removal intended to be given by said section.” It is perfectly obvious that this section was designed primarily to define what words in the various city ordinances and resolutions relating to the selection of municipal officers should not be construed as creating or intending to create a fixed and definite term of office; but it did not, nor could it, make a definite term a mere holding at the pleasure of the Mayor, nor give to him the power to remove as an incident of the power to terminate the tenure, in instances where the power to remove did not antecedently exist. Sec. 46 of the ordinance is simply declaratory of the meaning of prior ordinances. Its import is that when the phrase bi-annual appointment or other equivalent expression is used in ordinances relating to mfinicipal officers, it shall not be treated as establishing a fixed and definite term; but sec. 46 could not override the other provisions of sec. 31 declaring in effect that when the term is a fixed one the tenure shall not be at the pleasure of the Mayor, and providing that a removal from an office having a definite term and filled by appointment of the Mayor must be made for the causes, or one of the causes, specifically assigned in the statute and in the mode and by the method therein prescribed. Sec. 46 had, and necessarily could have had, no such effect as to give to the Mayor — 599 — the absolute, arbitrary and unrestricted power to remove from an office, at his mere pleasure, any officer holding for a definite term under a city ordinance; and if it had undertaken to do so it would have been palpably in conflict with the provisions which carefully confine that power to instances where the Mayor has made the appointment and where no term is fixed for the office, and to cases where the causes set forth in the statute are applicable; and which provisions also sedulously guard against both a hasty and a despotic use of the power when these enumerated causes are relied on. The ordinance embodied in sec. 46 neither broadened nor narrowed the effect or the scope of the statute, and it certainly gave no power to remove where none previously existed under the statute, and conferred no authority to exercise such a power in any way different from the way pointed out in the statute — summarily, when the tenure is at will; after proof and investigation when the term is definite. It follows, then, that as the power of the Mayor to summarily remove or to remove for cause is confined to classes of incumbents within which classes the School Commissioners do not come, his attempted removal of those officers was unlawful; and that they are still rightfully in office, and are, therefore, entitled to the possession of the apartments in the City Hall — formerly occupied by them— and to the books, papers and archives described in the petition, unless the other grounds of defence are sufficient to defeat their demand. Entertaining the views we have expressed on the merits the technical defences become comparatively unimportant. We take it for granted the case was not brought here to be disposed of on a purely technical ground. The importance of speedily determining, finally and fully, this litigation, involving as it does, the stability of the Public School system as it has existed for years in the city of Baltimore, is obvious. The issues raised in these cases are momentous and far reaching in their consequences ; and the public interests at stake require that the agitation, the jarring and the excitement, which a prolonga — 600 — tion of these unfortunate controversies will surely provoke, should be promptly and effectually set at rest by a decision on the merits, rather than kept alive by fruitless contentions over mere technical forms of procedure. As to the first of these technical grounds, viz., that the respondents are not in possession of the apartments or the books and archives, but that their secretary is, little need be said. The secretary is not a bald usurper, holding by force against both the relators and the respondents. Whatever the nature of his possession is, it is such only as the respondents have conferred or attempted to confer. ' He is their agent — his possession is their possession, simply because he is their appointee. It is the plain duty of the respondents to surrender up to the relators who are the rightful School Commissioners, what has been demanded of them ; and they cannot be permitted to evade the perform-, anee of that obligation by sheltering themselves behind their own subordinate. Co. Com. v. Banks, 80 Md. 325. What the relators seek is not relief purely personal or pertaining to each individually; but they demand as the lawfully constituted Board of School Commissioners the possession of premises to w-hich as members of the School Board, and solely as such members, they are entitled. It is very questionable whether each one individually would have had a right to a mandamus to obtain possession of the rooms set apart for the School Board; but it is perfectly certain that collectively and in their official capacity, they may make the demand and enforce the right, which is a right not held by them separately, but pertaining to them collectively as an official body. We have not deemed it necessary to go into a consideration of the question as to the power of the Mayor to fill vacancies during a recess of the City Council, for the reason that no vacancies exist. Nor do we feel called on to enter into an extended refutation of the Mayor’s asserted right to create a vacancy by appointing some one else than the incumbent to the same office in such a case as this ; be — 601 — cause we held in Hooper v. New that the old Commissioners had been legally appointed, and we hold now that they were not subject to be removed by the Mayor under sec. 31, Art. 4, Local Laws, or under any other law or ordinance ; and that, therefore, there were no vacancies to be filled. (Decided April 8th, 1897). It results from what has been said in this opinion that the order appealed from must be affirmed. Order affirmed with costs above and below.