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
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
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
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.