Hooper v. Creager

84 Md. 195 | Md. | 1896

Lead Opinion

McSherry, C. J.,

delivered the opinion of the Court.

It is not necessary to go into any extended statement of the facts presented by this record, nor to discuss the many interesting and ably argued questions which its pages set forth. With all, except one, of the positions, taken by the eminent and distinguished Judge who heard this case in the Court below, we, in the main, agree, though we are not to be understood as adopting them ; but upon one vital inquiry which was probably not strenuously pressed before him, we reach a different conclusion. With the policy of the municipal legislation whose validity is assailed in these proceedings this Court has no concern. If valid, its wisdom is not for us to question. If invalid, it becomes our plain and imperative duty to declare it so.

The ordinance of the Mayor and City Council, which is attacked on the pending appeal, was passed over the veto of the Mayor, and by its provisions the City Tax Collector was made elective by the joint convention of the two branches of the City Council. Before the adoption of the ordinance that officer and others had been nominated by the Mayor, and with the advice and consent of a joint convention of the two branches, appointed. Whether this radical change in the method of appointment of the City Tax Collector and of numerous other officers whereby the Mayor was deprived of all participation in their selection is ultra vires or not, is the predominant and controlling question in the case.

The power to pass ordinances regulating the manner of making appointments to office is a power to regulate the method by which appointments shall be made by the depository of the power charged with the duty to make them, but is not a- power to delegate to some one else or to a fraction of that depository the authority to do the thing which the depository itself alone was commissioned to do. The limits and the scope -of the power to make appointments of municipal officers were originally defined in the legislation that has been compressed in sec. 30, Art. 4, Code Pub. Local Laws. This section is not new legislation creating and demarking for the first time the power, but it comprises portions of two distinct Acts of Assembly passed with an interval of more than eleven years between the dates of their adoption, the one being supplementary to the other. But when they were codified, the last in point of enactment, which when enacted was simply a supplement to the former, was placed first in sec. jo, and the first in date of passage,' and which when passed created the power, was placed second in order in the body of the section. This circumstance, however, cannot alter the construction which ought to be placed on sec. jo, as found in the Code, or make it denote precisely the reverse of the-meaning which its component parts as originally enacted obviously bear.

As the fundamental question is, whether the ordinance that strips the Mayor of Baltimore City of all participation in making appointments of municipal officers-is a valid exercise of the powers, or of any of the powers, given by the charter of the city, it will not be amiss first to quote the section of the Local' Code under which it is claimed the power to pass the ordinance does exist, and then to transcribe the two Acts of Assembly which are embodied in and make up that section. Sec. 30, Art. 4, Local Code, reads as follows: “They may pass ordinances regulating the manner of appointing persons to office under the corporation, which they are or may be authorized by law to appoint, but unless such ordinances be passed the Mayor shall nominate, and by and with the advice and consent of a convention of the two branches of the City Council, shall appoint all officers under the corporation, except, &c.” Sec. 2, of ch. 148, Acts of 1817, provides: “And the Mayor of the City shall nominate, and by and with the advice and consent of a convention of the two branches of the City Council, shall appoint all officers under the corporation, except, &c.” And the Act of 1828, ch. 114, declares: “ That the Mayor and City Council may pass ordinances regulating the manner of appointing persons to office under said corporation, which they are now or may hereafter be authorized by law to appoint, anything in the second section of the Act to which this is a supplement, to the contrary notwithstanding.”

Now it must be conceded, because it is too plain for denial, that if the Act of 1817 had been incorporated in the Code, without qualification of any kind, and just as the Act stood on the day of its adoption more than three quarters of a century ago, appointments to city offices could only be made by the Mayor with the advice and consent of a convention of the two branches of the City Council. Under that Act the Mayor and the City Council were the depository of the power to make appointments. To those two constituent, but separate and independent departments of the city government, was the power of making appointments confided. But more than this ; not only was a power thus conferred, but the method of its exercise was prescribed.

The Mayor nominated and by and with the advice and consent of the convention appointed. This was not a power given to the municipality as a mere corporate entity, to be exercised like other corporate powers in the usual and ordinary way; but, having been given to the Mayor and to the City Council distributively, the manner of its exercise by them was specially and distinctively declared. The execution of the power was placed in the Mayor and a convention of the two branches, but not in the branches separately. The method or manner of its exercise was therefore specifically pointed out. Obviously, so long as that provision remained unchanged by the Legislature, no other or different method of exercising the power to make appointments could have been resorted to by the municipality, and neither the Mayor nor the City Council could have invaded the distinctive province of each other. What, then, was the effect of the Act of 1828? Did it change the depository of power, or merely authorize the same depository to exert the power of appointment in some other manner which the municipality might by ordinance prescribe ?

This Act of 1828 was passed at the instance and upon the request of the Mayor and City Council. A resolution requesting the Delegates from the city in the Legislature to procure an amendment to the charter empowering the corporation to pass ordinances regulating the manner of appointing officers was presented to the General Assembly, and conformably to that request the Act, a draft of which accompanied the resolution, was adopted. The Act of 1828 purported to be a supplement to the Act of 1817, and provided, as stated before, that the Mayor and City Council might pass ordinances regulating the manner of making appointments to the offices which '‘they'd that is, the Mayor and City Council, are or may hereafter be by law authorized to make, “ anything in the second section of the Act to which this is a supplement to the contrary notwithstanding.” This Act gives a power, not to make appointments, but to regulate the manner of making such appointments as “ they,” the Mayor and the City Council, are or may hereafter be by law authorized to make; and it does this notwithstanding there is “anything” to the contrary as to their power to regulate the manner of appointments contained in the Act of 1817, but it neither in terms nor by implication interferes with the depository of power to make appointments. On the contrary, the Legislature, recognizing that both the Mayor and the City Council, as separate, co-ordinate branches of the municipal government, had been clothed with the power to make appointments of municipal officers, was, in the Act of 1828, careful to provide only a subsidiary power by which the manner of making appointments might be regulated as to such officers as they, the Mayor and City Council, not the municipality, but the Mayor and the City Council as separate branches of the municipality, then had or might thereafter have the power to appoint.

In effect, the Act reaffirms the existence of the power of the Mayor and of the City Council, and then gives to the municipality in its corporate capacity the further power to pass ordinances, whether with the approval of the Mayor or over his veto is wholly immaterial, whereby the manner of making appointments by the Mayor and the City Council, each having a voice, might be regulated. It was manifestly not the design of the Act of 1828 to put it in the power of the City Council to strip the Mayor of all participation in making appointments, any more than it was contemplated that under the power to regulate the manner of appointments both the Mayor and City Council could, by ordinance, divest themselves of that power altogether and delegate it to a total stranger.

The language of the Act of 1828 is explicit. Bearing in mind that when that Act was passed the Mayor nominated and a convention of the two branches assented tó all appointments, and that, therefore, both the Mayor and the City Council, as distinct entities, were vested with the power of appointment, it seems obvious that when the Act of 1828 gave authority for the adoption of ordinances intended to regulate the manner of making appointments which they, the Mayor and the City Council, were confessedly then empowered by law to make, it did not take away the joint power antecedently possessed to appoint, but simply provided that some different method of exercising that same joint power might be resorted to. But if this were not abundantly clear, it is certainly made so when the thing authorized by the Act to be done is considered. Now, the thing authorized by the Act to be done was to pass ordinances regulating the manner of appointing persons to office; and it comes to this inquiry : Does the authority to regulate the manner of doing a thing of itself take away the antecedent power to do the thing? The power to do a thing must precede its exercise. It may be given coupled with a defined method of execution, or it may be given simply and nakedly without an accompanying modal regulation. But if, afterwards, in the one instance, the defined method of execution be altered, or in the other a modal regulation be added, yet in neither event would the power be thereby necessarily destroyed—the power to do the thing would remain though the manner of doing it might be changed.

To briefly restate the proposition : The Act of 1817 did two things. It first gave to the Mayor and to the City Council jointly the power to make appointments; secondly, it prescribed the mode or manner in which that power should be exercised. The Act of 1828 did but one thing. It did not disturb the power to make appointments, but it did confer authority to prescribe by ordinance a new or different manner for the exercise of the powers—the power still residing where the Act of 1817 had reposed it.

Now, then, the power of the Mayor and City Council to jointly make the appointments under the Act of 1817 was not destroyed by the Act of 1828, unless the authority to regidate the manner of exercising the power took away the power itself.. It could only do this upon the assumption that the power to regulate means the power to destroy. That such is not the meaning of the term in Maryland has been determined more than once. In State v. Mott, 61 Md. 297, an ordinance of the city of Baltimore, whereby the burning of lime within the city limits was prohibited, was sought to be upheld under that provision of the charter which gave the city authority to “regulate the places for manufacturing soap and candles, &c., and where every other offensive trade is carried on.” This Court said: “ The power delegated is simply to regulate the places, where they are carried on, and not to forbid their being carried on, or to destroy them altogether.” And in State v. Whitman, 80 Md. 410, it was held that a power to regulate the liquor traffic was not a power to destroy the trade. See also, Brown v. O’Connell, 36 Conn. 432.

As illustrating the correctness of the construction placed on the Acts of 1817 and 1828, in this opinion the case of Commonwealth Ex rel. Graham v. Crogan, Pa. St. 26 At. Rep. 697, may be cited. Information of John M. Graham, district attorney of Luzerne County, was filed, giving the Court to understand that Michael Crogan had exercised the office of street commissioner of the city of Wilkes-Barre without warrant of law. The defendant had been appointed street commissioner of the city of Wilkes-Barre by the action of the City Councils. The position of the relator was that a valid appointment to the. office required the concurrent action of the City Councils and the Mayor. The title of the defendant depended on this question. The charter of the city gave the Mayor and Councils the power “ to appoint and remove such officers * * * * as they may deem necessary to * * * * enforce the ordinances and regulations of the city. The Supreme Court of Pennsylvania said: “ Neither the Mayor nor the Councils can make the appointment any more than they could make the ordinances the officers are appointed to enforce.” • And in speaking of the charter the opinion proceeds : “It empowered the Mayor and Councils to create additional offices and to fill them. In the exercise of this power they have created a single office for the entire city, called street commissioner, and the - mere fact that the office was created by them is conclusive upon the necessity for their concurrent action in' order to fill it. It is needless to add that the city ordinance, relied on as authority for the appointment by the Councils alone, .cannot change the law or deprive the Mayor of the powers which the law gives him without his consent.” And judgment of ouster was entered.

When the codifiers of i860 consolidated the Acts of 1817 and 1828, in sec. 25 of Art. 4, Code of Pub. Local Laws, they placed the provisions of the Act of 1828 first, and Mr. Poe, in the Code of 1888, in sec. 30, of the same Art. of the new Code, followed his predecessors. But this circumstance can make no possible difference in the meaning of the Acts as codified. Both Acts are in the section, and when they were brought together there, their meaning was precisely the same -as when they stood separately and apart. The power of the Mayor and of the City Council as two independent co-ordinate branches of the city government to make appointments of officers is still retained in the section, as conferred by the Act of 1817 ; the mode of making such appointments designated in the Act of 1817 is still there, and may be exercised, unless the authority given by the Act of 1828 (which is also there) to regulate the manner of appointments, which “they,” the two departments, the Mayor and the City Council, are authorized by law to make, is validly exerted. To give to these two statutes when codified a meaning precisely the opposite of the one they had before they were codified, merely because the one passed last in order of time happens to be transcribed first in the same section of the Code which contains them both, would invoke, or rather invent, a new and a very dangerous rule of interpretation. Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention which may be collected from the cause or necessity of making the Act, or from foreign circumstances; and when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute. Johnson v. Heald, Ex. 33 Md. 352.

Now, it cannot be assumed, in the face of the explicit language used in the Act of 1828 and literally reproduced in sec. 30 of Art 4 of the Code of Local Laws, that the Legislature ever intended to give to the municipality of Baltimore the power to pass ordinances delegating to any one the right to name the many important officers that the efficient discharge of the public trusts committed to the corporation may require. And yet, if it be conceded that the Mayor may, under sec. 30, be deprived of all power as an integral part of the appointing power, because the power to regulate the manner of appointments means if the City Council so enacts over his veto an abrogation of his antecedent power to participate therein, there is no escape from the conclusion that there can be by ordinance passed, with or without his approval, a valid delegation of the appointing power to one branch of the City Council; and if to it, then likewise to a single individual not even a member of the city government. Such a construction means that there may be a lawful surrender of the power to appoint, and under the guise of regulating the manner of appointment, a transfer of the whole power itself to an alien. And why not ? If the statutes do not place this power in the Mayor and the City Council to be executed by them, but gives them unlimited and unrestricted authority to pass any regulation they may see fit as to the manner of making appointments, there is no line at which logically you must halt and say the ultimate limit has been reached beyond which the delegation of the power of appointment shall not go. That such a surrender or transfer to another of the power to appoint is not likely to occur may be probable, but this probability is no answer to the argument that the construction contended for irresistibly establishes its possibility. The bare possibility that such a result may flow from a judicial construction of a statute is sufficient to. demonstrate the utter fallacy of the interpretation, especially when there is another and a different construction which is far more reasonable and which leads to no such serious consequences. A construction fraught with consequences so pernicious, as well as so dangerous to the order and good government of a great city, must be rejected, unless the plain, imperative words of the Act of Assemby are open to no other meaning at all.

Perhaps it may not be out of place before concluding this opinion to-cite a few cases in which this Court has held that for the purpose of ascertaining the meaning of a section or provision of the Code, the original Act of Assembly embodied in the section or provision under consideration may be consulted. Thus in the recent case of Miles v. Stevenson, So Md. 366, .it was insisted that mandamus was not the proper remedy to compel County Commissioners to' restore a road supervisor to the office from which they had removed him, because sec. 81, Art. 5 of the Code, giving to every party aggrieved by an order passed by the County Commissioners, a right of appeal therefrom to the Circuit Court, furnished an appropriate remedy by appeal. We went into an examination of the original Act from which the section was codified, and finding that the Act when adopted, had reference only to cases relating to public roads, and that the section providing for an appeal to the Circuit Court was, when passed, confined to appeals in such proceedings, we held that an order-removing a road supervisor from office was not such an order as under that section of the Code could be reviewed- on appeal by the Circuit Court, though the terms of the section taken by themselves in the place where found in the Code, and without reference to the original Act by which they were first adopted, were probably broad enough to embrace just such an order. See also Maurice v. Worden, 52 Md. 294; State v. Popp, 45 Md. 432; Dorsey v. Garey, 30 Md. 499.

For the reasons given, the ordinance in question is, in our opinion, ultra vires and void. As a consequence the appellee was not lawfully elected City Tax Collector, and hence the writ of mandamus, which issued, directing the Mayor to administer to the appellee the oath of office, should not have been ordered. The order appealed from must therefore be reversed, and the petition ■ for a writ of mandamus must be dismissed.

(Decided November 19th, 1896).

Order reversed and petition for writ of mandamus dismissed, with costs above and below.

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Dissenting Opinion

Russum, J.,

dissented and delivered the following opinion :

Notwithstanding the high esteem in which I hold the judgments of my learned brothers, I am unable to concur in their conclusions in this case, and it is proper that I should give the reasons for my dissent. We agree in everything except the proper construction of the charter of Baltimore City, contained in Article 4 of the Code of Public Local Laws, and the extent to which the Acts of 1817, ch. 148, and of 1828-9, 114, should control that construction.

This Court has, in several cases, considered the effect of the omission of Acts and parts of Acts from the Code of Public General and Public Local Laws, and laid down the rules by which the Code should be construed. In the case of the Mayor, &c., of Frederick v. Groshon, 30 Md. 443, the controversy related to the Act of 1847, ch- 224, which authorized the Mayor, Aldermen and Common Council of Frederick City to open and widen Carroll Creek, in that City. The Act was not included in the Code of Public Local Laws, title Frederick County, and it was contended that, being a franchise, it was still operative, notwithstanding the omission. Judge Alvey, in denying this contention, said : “ It would involve the necessity of constantly examining the great multitude of Public Local Acts, in regard to the municipal corporations of the State, in the scattered and disconnected form in which they originally passed, and the doubt and controversy would be endless, as' to what were the rights and privileges of such corporations existing at the adoption of the Code. The object * * * was to arrange and simplify the whole body of the statute law of the State, and the Legislature, in adopting it as a substitute for all the Public General and Public Local Statute Laws then existing, plainly intended an entire repeal of all such statutes of that character, then on the statute books, as were not embraced in the codification ; for otherwise, instead of simplification, the greatest confusion would ensue.” In case of Johns v. Hodges and wife, 33 Md. 523, Judge Stewart, delivering the opinion of the Court, said : “The Legislature designed to preserve all that was needful, and to discard what was obsolete or inapplicable, and relieve the statute book from all useless matter.” “ Where its language is the same as that of any antecedent law, the well-established construction is to be regarded. If the terms are substantially different, they must have their plain and obvious interpretation, and not be strained to conform to previous legislation.” It “is to be understood and expounded according to the law establishing it, as a substitute, and such meaning must be given the language employed as a just construction will warrant.” Again, in the case of the. Western Maryland College v. McKinstry, 75th Md. 189, in which the omission of the second section of the Act of 1884, ch. 293, relating to the execution of wills from the Code of 1888, was passed upon this Court through the present learned and distinguished Chief Justice, said : “ If the statute law of Maryland had stood, at the date of the death of Miss McKinstry, as it did stand before, and for more than five years after the execution of her will, that paper would have been admitted to probate as a valid will of personal property.” * * * * “ But, in the recent codification of the law, the second section of the Act of 1884, which carefully and liberally protected from the operation of the Act all wills made prior to August first, 1884, was omitted, and is, consequently, no longer the law of the land.” Having these decisions in view, let us examine the Acts of 1817, ch. 148, sec. 2, and of 1828-9, ch. 114, and see how far they have been incorporated into Art. 4, Code of P. L. L., and are now a part of the charter of Baltimore City, and how lar they have been “ repealed,” “ discarded as obsolete,” and, by its adoption, “ are no longer the law of the land.”

The second section of the Act of 1817 provides that the annual session of the City Council shall begin on the first Monday in January; that two-thirds of each branch shall be a quorum to do business ; that all persons holding offices under the corporation shall hold during the pleasure of the Mayor, unless otherwise provided for by Acts of Assembly, or by ordinances of the city, and then proceeds as follows : “ And the Mayor of the city shall nominate, and by and with the advice and consent of a convention' of the two branches of the City Council, shall appoint all officers under the corporation, except the Register of the city, and the clerks employed by the city, or under their authority.” The Act of 1828—9, ch. 114, which was passed as a supplement to the Act of 1817, and in accordance with a joint resolution of the Mayor and City Council, requesting that the charter be so changed as to empower the corporation to pass ordinances “regulating the manner” of appointing city officers, is as follows: “That the Mayor and City Council of Baltimore may pass ordinances regulating the manner of appointing persons to office, under said corporation, which they are now or may hereafter be authorized by law to appoint, anything in the second section of the Act to which this is a supplement to the contrary notwithstanding.” Section 30 of Art. 4 of the Code of Public Local Laws, title Baltimore City, reads as follows : “ They may pass ordinances regulating the manner of appointing persons to office under the corporation which they are or may be authorized by law to appoint, but, unless such ordinances be passed, the Mayor shall nominate and by and with the advice and consent of a convention of the two branches of the City Council, shall appoint all officers under the corporation, except the Register,” &c.

A careful comparison of these Acts of Assembly with each other, and with the Code will show that, after the passage of the Act of 1828—9 the power of appointment to office under the corporation, was taken from the Mayor and transferred to the corporation, in obedience to the request of the Mayor and City Council; and (2) that, by the adoption of the Code, the charter was entirely changed, by the omission of all authority in the Mayor to appoint persons to office, except in- the event that ordinances were not passed “ regulating the manner ” of their appointment. The first of these propositions is conclusively proven by the language of the Act of 1828-9, which authorized the “Mayor and City Council of Baltimore ” to pass ordinances “ regulating the manner of appointing persons to office under said corporation—meaning thereby the corporation whose name is the Mayor and City Council of Baltimore. As was well said by the learned Judge below, “ If it was intended by the Legislature that they should each, or either, continue to be necessary constituents in the act of appointment, what possible purpose was there in the passage of the Act? ”

The second of these propositions is proven by the addition in the Code of the words “ unless such ordinances be passed, the Mayor shall nominate, and by and with the advice and consent of a convention of the two branches of the City Council, shall appoint all officers under the corporation, except the Register,” &c. The addition of these words made an entire change in the charter of Baltimore City, so far as the Mayor’s power of appointment of persons to office was concerned, by omitting therefrom the’ positive and unequivocal authority to make such appointments, and limiting it to the contingency of a failure on the part of the corporation to “ pass ordinances regulating the manner” of making them. The Act of 1817, ch. 148, having been repealed by the adoption of the Code, cannot be revived by construction. Pingree v. Snell, 42 Maine, 53; 1 Pick. 45; 23 Am. & Eng. Ency. Law, 487, and cases there cited. Any other construction would render the change made by the Legislature meaningless, and operate as a judicial reconstruction of section 13, by excepting from its provisions all ordinances relating to the making of appointments to office. The cases of State v. Popp, 45 Md. 432; Maurice v. Worden, 52 Md. 204, and Dorsey v. Garey, 30 Md. 499, do not conflict with this construction. In Popp’s case, 45 Md. 433, it was merely decided that, in construing the Code, all parts in pari materia must be read together, regardless of the heading under which they are found, and, in the other cases, where the meaning of the original Act was looked to, the language in the Code was either identical, or substantially the same as that in the original Acts, and they come fully within the canons of construction laid down by Judge Stewart in the case of Johns v. Hodges and wife, 33 Md. 523.

But, it is claimed that the power to regulate ‘ ‘ the manner of appointing persons to office” does not include the power to make the appointment, because that would destroy the right of a constituent element thereof (the Mayor) to participate in such appointment, and the cases of State v. Mott, 61 Md. 297; State v. Whitman, 80 Md. 410; Brown v. O'Connell, 36 Conn. 432, and Graham v. Grogan, 26 Atl. 697 (155 Pa. St.), are relied upon as supporting this contention. In the case of Brown v. O’Connell, the statute under consideration was in contravention, not of some supposed or inferential restriction, but of the express, positive, mandatory provision of the Constitution of Connecticut. In Mott’s case, 61 Md., and Whitman’s case, 80 Md., the ordinance, or statute, under consideration was an absolute inhibition of a particular thing, such as the reducing to lime of any oyster shells within the limits of Baltimore City, and the sale- of any liquor in the Seventh District of Dorchester County. These are vastly different from the case under consideration. The ordinance in this case does not prohibit directly or indirectly, the levy and collection of taxes, nor does it in any particular cripple the machinery for collecting them. The same breath that repeals re-enacts with full force and vitality, and these cases are, therefore, clearly distinguishable from the one under consideration. By the charter of the city of Wilkes-Barre the power of the corporation is vested in the corporate officers, the Mayor being one of them. He was a constituent element in the exercise o.f the powers granted by the charter, and the ordinance under consideration, in Graham v. Grogan (26 Atl. Rep. 697—155 Pa. St.), having denied him his right to participate in the appointment of the officers therein mentioned —not being the act of the depositoiy of the power—was declared invalid by the Supreme Court of Pennsylvania.

The charter of Baltimore City vests no such power in the Mayor. Whatever power he possesses is not inherent in the executive office, but must exist, if at all, by virtue of the authority conferred upon him by the sovereign power, to-wit, the Legislature. Meech. on Pub. Off. secs. 108—109.

There is no inhibition in this State which prevents the legislative branch of the government from exercising the power of appointment to office. This question was before this Court and expressly decided in the case of The Mayor, &c., v. The Board of Police, 15 Md. 376. It was urged in that cáse that the Act of Assembly violated Art. 6 of the Declaration of Rights, which declared that the Legislature, executive and judicial powers ought to be kept separate. In denying this contention, Judge Tuck said: We are not prepared to admit that the power of appointment to office is a function intrinsically executive ” * * * * “namely, that it is inherent in and necessarily belongs to the executive department. And Judge LeGrand, in an able and exhaustive concurring opinion, quoting Crane v. McGinnis, 1 G. & J. 472, said: “ The legislative department is nearest the source of power, and is manifestly the predominant branch of the government.” Cities and counties are but local divisions of the State, organized for the more economical administration of the government. Every power they possess could be exercised by the Legislature. (Daly v. Morgan, 69 Md. 467). In the absence of a charter for Baltimore City, the Legislature could levy all taxes, appoint all officers and provide for everything necessary to govern the city. Not choosing to do this, it has granted a charter to " the inhabitants of Baltimore,” by the name of “ The Mayor and City Council of Baltimore,” and delegated to them, as a corporation, all the powers it possessed that were necessary to an efficient government of the city— among which was the legislative authority to create offices, and the power of controlling (regulating) “ the appointment of persons to office.” The corporation having the power to create offices and to regulate appointment of persons thereto, possesses all the powers of the Legislature over the subject, and that includes the powers to appoint. Mayor v. Board of Police, 15 Md. 376; Trowbridge v. Newark, 49 N. J. L. 144; Shallcross v. Bridges, 6 W. Va. 591. The donee of a power who executes it, cannot be said to have delegated it, and, in passing the ordinance declaring that the City Collector should thereafter be appointed by a convention of the two branches of the City Council, there was neither an unwarranted assumption, nor a delegation of power, but merely the exercise of the power of the State, conferred by the charter—the exercise of the legislative function of predetermining what the law shall be for the regulation of all future cases falling under its provisions. Vide, Bates v. Kimball, 2 D. Chipman (Vt.), 77; Newland v. Marsh, 19 Ill. 383; Cooley Const. Lim. (3 ed.), pp. 108-109. This construction has received the sanction of “the Mayor and City Council” since 1829. Referring to the cotemporaneous construction of the powers granted by the Act of 1829, and the Code of Pub. Local Laws, Art. 4, as evidenced by the City Code of 1893, learned Judge below said: “The different modes of appointment therein provided for, show that it has never been supposed, since 1829, that the statute law required the concurrence of the Mayor and City Council in the Act of appointment, or that each of them was a necessary constituent of the Act.” The cotemporaneous construction of the charter, of such duration, continuously practiced under, ought not to be shaken, but upon the ground of manifest error and cogent necessity. The power having been exercised, in the manner provided in the ordinance under consideration, from 1829 to the present time, “ought to be deemed almost conclusive evidence of its possession.” Kierstead et al. v. The State, 1 G. & J. 248; Edgerton v. Reilly, Ibid, 385; Bradford v. Jones, 1 Md. 369; State v. Mayhew, 2 Gill, 468; Harrison v. The State, 22 Md. 491.

Finally. On a former appeal between the parties to this cause (Creager v. Hooper, Mayor, &c., 83 Md. 490,) we remanded it, in order that “ the ends of j ustice might be promoted” by a trial “upon its merits.” The ordinance in question was set out in the petition and the power to pass it denied by the answer, and the question argued in the briefs and orally, at least by the appellant. With great deference to my learned brothers, it seems to me that so far as the question of ultra vires is concerned we are concluded by that decision, since there could not possibly be any “ merit ” in, nor any “ end of justice to be promoted by the drial of a case which had no other foundation than an ultra vires ordinance. I am, therefore, of opinion that the order directing the peremptory 7na7ida77tus to issue should be .affirmed.

{Filed December 3rd, 1896).

JK. motion fora re-argument was subsequently made, and in 'disposing of it,

McSherry, C. J., delivered the opinion of the Court.

We have carefully considered the elaborate brief mailed to us before being filed in support of the motion made for a re-argument of this case, but we fail to discover any reason why the motion should prevail. There is no occasion for a re-statement of the. grounds upon which the conclusion reached by a majority of the Court was founded, but inasmuch as it seems to be supposed that we ignored the pro-visions of the Code of Public Local Laws and founded our judgment upon antecedent Acts of Assembly alone, it may not be amiss to remove this misapprehension. What we did, was to construe a particular section of the Local Code, which was not new legislation, by referring back to, and ascertaining the meaning of, the original Acts of Assembly that were compressed and consolidated in that section. This is a perfectly familiar method of construction, often followed by this and by other Courts, and is in no way at variance with the case of Mayor, Aldermen, &c., of Frederick v. Groshon, 30 Md. 436, and others of that type relied on in the brief. The case at bar and the case in 30 Md. are as wide apart as the extremities of the earth’s axis. In Groshon’$ case it was insisted that a public local Act of Assembly relating to the municipality of Frederick and passed long before the Code of 1860 was adopted but not incorporated in that Code when it went into effect, was still in force after the Code became operative, and was in force in spite of the declaration of the Legislature that all Public General and Public Local Laws not included in the Code were repealed. It was held that the Local Act was repealed because not included in the Code—the Code having superseded all other Public General and Public Local legislation. But in this case there is no such condition. Both the Acts of 1817 and 1828 are incorporated in section thirty of Article four, of the Local Code, and there is no question of repeal involved at all—the sole question being one of construction, or as to the meaning of a statute confessedly in force. In the Groshon case the effort was to rescue a statute from repeal. In this it is to ascertain the meaning of an unrepealed statute.

It is also contended that the decision by this Court in June last upon the record then brought up between the same parties, practically conceded the power of the City Council to pass the ordinance we have pronounced ultra vires and consequently invalid. And it is suggested that unless this Court had then supposed that the City Council possessed the power to enact the ordinance as actually passed we would not have sent the case back for a hearing on its merits. But it was precisely because the case was not then before us on the merits, and precisely because the construction of the statute was not involved on the former appeal that this ultra vires question was not at that time considered or passed upon. Indeed, in the opinion filed in June we were careful to say: “The merits of the controversy have never been passed on by the Court nor has the case ever been in a condition that they could be passed tipon. * * But in remanding the case it is proper to say that the questions involved are either those touching the passage or existence of an ordinance, or questions resulting therefrom, &c. * * For these reasons the case will be femanded that it may be tried on its merits.” Had we stepped out of our way to decide a question not discussed by the counsel for the Mayor because not included in the interlocutory and technical point of pleading then solely before us, or to determine the merits, when we explicitly declared that the merits were not before us for adjudication at all, we would have departed widely from the settled policy of this Court, and we would have clearly exceeded the prescribed limits of our jurisdiction as an appellate tribunal.

We do not deem it necessary to pursue the subject further and we merely add, in conclusion, that we are authorized by Judge Roberts and Judge Boyd to say for them, that though they did not sit during the oral argument of the case, they have examined the question of ultra vires and fully concur in the conclusion reached by the Judges who united in the majority opinion.

The motion for a re-argument is overruled.

Motion overruled.

(Decided January 7th, 1897).