85 Md. 565 | Md. | 1897
delivered the opinion of the Court.
The appellee was appointed by a joint convention of the two branches of the City Council, one of the School Commissioners of Baltimore City, pursuant to the provisions of Art. ‡‡ of the City Code of i8gj. The ordinance therein contained makes provision for the appointment of School Commissioners of the city by a joint convention of the two branches of the Council. When the appellee presented himself to the Mayor to have the oath of office administered by the Mayor, the latter refused to administer the oath and
The paramount question involved is whether the ordinance under which the appellee was appointed a School Commissioner of Baltimore City is valid or ultra vires and void; and this question is presented and brought up directly on the face of the record.
The question at issue arises, it is claimed, under the same section of the Code of Local Laws that was before us in the Hooper and Creager case recently decided by this Court (84 Md. 19S). There is, however, a clearly defined line of distinction between that case and many other cases that might arise under the same section, and which, if they did arise, it has been supposed, would be covered and controlled by
In the Creager case we were dealing with an ordinance regulating or attempting to regulate the manner of appointing persons “ to office ” — to a municipal office — and not with an ordinance regulating the method of employing or appointing servants or laborers and kindred subordinates, who are in no .sense officers of the municipality at all, but are merely and essentially employees. Consequently the language used in the opinion in that case must be understood as applicable to municipal officers — the class of persons designated in sec. 30 of Art. 4 — as contradistinguished from mere employees. Nor does the • Creager case touch upon or involve the specific point now presented. If the School Commissioners are municipal officers, and if there had not been any legally prescribed mode provided for their appointment other than that contained in sec. 30, Art. 4, which applied to Mr. Creager’s appointment, then, undoubtedly the mode of selecting School Commissioners would be within the reason, and, therefore, within the effect and operation of the decision in the Creager case. But it is right here that the Creager case and this case diverge. It is precisely because sec. 30 of Art. 4 does not apply to School Commissioners any more — though for a different reason — that it applies to a bailiff in the Tax Collector’s office, an employee under the City Commissioner or hundreds of other subordinates in the service of the city, that wffiat was said in Creager and Hooper can have no influence upon the decision of this case.
If it be assumed, though it is by no means conceded (and certainly it is not now decided), that the School Commissioners are municipal officers, as contradistinguished from agents of the State selected by the municipality under power delegated by the State, to carry on within the limits
Now, what is the method provided for the appointment of the School Commissioners of Baltimore City, and under what authority was the method adopted ? The Local Act of 1823, ch. 130, declares: ‘'That the Mayor and City Council of Baltimore shall have power to establish public schools within the city of Baltimore and section 21 of chapter 162 of the General leaves, passed at the same session of the Legislature, vested in the Mayor and City Council the authority to establish and regulate the public or primary schools of the city. Under these statutes and pursuant to their design, an ordinance was passed by the municipality in eighteen hundred and twenty-eight, by which it was, amongst other things, provided that the Commissioners of Public Schools should be chosen by the two branches of the City Council in convention ; and this prescribed method thus specifically fixed by that and by subsequent amendatory ordinances, apart from being recognized by the Act of 1845, ch. 120, was fully and completely ratified, sanctioned and validated afterwards — even if antecedently invalid — by the organic law of the State; for by section 3 of Article 8 of the Constitution of 1864 it was expressly ordained that: “ The School Commissioners of Baltimore City shall remain as at present constituted and shall be appointed as at present, by the Mayor and City Council, subject to such alterations and amendments as may be made from time to time by the General Assembly or the said Mayor and City Council. ” It should be noted that this constitutional provision prescribed two things. First. It declared that the School
In eighteen hundred and sixty-six another ordinance was
The Constitution of 1867 contained a separate Article pertaining to Baltimore City, and amongst the provisions therein set forth is section eight, whereby it is declared that “ all laws and ordinances now in force and applicable to Baltimore City, not inconsistent with this Article, shall be and they are hereby continued until changed in due course of law.” Here, then, in the most formal and explicit terms, is a declaration that “all ordinances now in force * * * shall be and they are * * * continued until changed in due course of law.” The ordinance of 1866 providing for the appointment of School Commissioners by a joint convention of the two branches of the City Council was undeniably then in force; it was applicable to the city of Baltimore and to that city alone, and it rvas not inconsistent with Article eleven of the Constitution which related to Baltimore City. Was not that ordinance, then, and the power
Has, then, the ordinance of 1866 prescribing the method of appointing School Commissioners been “ changed in due course of law?” The ordinance has been repeatedly repealed and re-enacted, but there has been no change made .In the method of selecting the Commissioners. The thing, the substance, which the Constitution of 1867 continued in force was not merely the formal ordinance couched in particular words, but the power which that ordinance contained authorizing the municipality to follow this special method of making these selections ; and until some other method is-adopted, if that one has not been repealed, the same pozver necessarily continues, notwithstanding changes by the repealing and re-enacting ordinances in other particulars. So long as the power has not been surrendered by the adoption of some valid inconsistent ordinance or taken away by the passage of some Act of Assembly, it remains ; and its exercise by the enactment of subsequent ordinances later in date than that of 1866, but all reasserting the same power, Is conclusive as indicating that the power itself has not been .stripped from the municipality by any act of the Mayor and City Council. There is nothing in the legislation by the city authorities that has abridged this power in the least; and it remains to be seen whether there is any constitutional provision or any Act of Assembly that impairs it.
The Constitution of r867,by Article eight, provides for the establishment of a thoV-sugh and efficient system of free public schools throughout the State, and in obedience to that requirement the General Assembly of 1868 enacted an •elaborate statute on that subject. Amongst other things it was prescribed by the statute that “ The Mayor and City Council of Baltimore shall have full power and authority to .establish in said city a system of free public schools under
As, then, the ordinance of 1866 remained in full force after the adoption of the Act of 1868, ch. 407, the appointment of School Commissioners in Baltimore continued to be made under the provisions of that ordinance. We find nothing in either the municipal legislation, or in any enactment of the Legislature, or in any constitutional provision, which took away or interfered with the power that the two branches of the City Council in joint convention possessed, to select the School Commissioners of Baltimore City.
If conditions have arisen and now exist, which indicate
It has, however, been objected that the appointment of the appellee was irregular, because “ no vacancy existed in the ward for which he claims to have been electedand “ that the ordinances requiring the City Council to be officially informed of any such vacancy were not observed.” This defence set up by the eleventh paragraph of the answer cannot be of any avail. Mr. New was not selected to fill a vacancy. His predecessor, the School Commissioner from the Twenty-first Ward, had been selected in February, 1893, for the full term of four years ; and when that term expired it became the duty of the City Council to elect a successor. The ordinances did not impose upon the City Council an obligation to wait until informed by the Mayor that the term of the then incumbent had expired or was about to expire, before they could lawfully proceed to elect another Commissioner from the same ward. Their own records advised them of the dates when the terms of the School Commissioners would end; and as the ordinances upon which reliance is placed in this particular relate only to cases where vacancies occur, and as by the eleventh clause of the answer it.is admitted that no vacancy did exist, these ordinances, thus relied on, obviously have no application, and certainly furnish no reason or cause which impugns the regularity of the appellee’s appointment.
There was no issue of fact raised that should have gone to a jury, and hence no error can be predicated of the order appealed from, because it was passed without sending the case to a jury for trial.
The views we have expressed are conclusive of every question that affects the merits of the controversy; and as we agree entirely with the results reached by the learned and accomplished Judge who decided this case below, his judgment upholding the validity of the ordinance under which the appellee was appointed, and declaring that appointment valid, must be affirmed.
Order affirmed with costs.