29 Md. 85 | Md. | 1869
delivered the opinion of the court :
The main subject of inquiry, and the question upon which this case turns is, had the appellees, at the time this proceeding was instituted, authority to act in the capacity of “ The Building Committee of the new City Hall,” and make the contracts and do the other acts referred to in the petition for the writ of mandamus ?
From this language it is too plain for argument that the whole Ordinance, including the power to appoint these officers, was to remain inoperative until some thing was done by the Legislature of the State to give it vitality. It is not, however, open to objection on this ground, for this court has decided that a municipal corporation may pass an Ordinance, within the limits of their delegated powers, contingent as to its operation and effect, on the existence or occurrence of facts germane to its subject-matter. “ A valid law may be passed to take effect upon the happening of a future contingent event, even where that event involves the assent to its provisions by other parties ; and the same principle applies to an Ordinance passed by a municipal corporation, within the legislative powers delegated to the corporation, provided it does not appear that the contingent event is foreign to the subject-matter of the Ordinance, and wholly unconnected with the consideration
*To ascertain the meaning of the terms used in section 11, and the design and intention of the framers of the Ordinance, in adopting this restriction upon its operation, resort must be had to the same general rules of construction which govern the interpretation of Acts of the Legislature ; such rules are equally applicable to the legislative acts of a municipal corporation, passed within the scope of its delegated powers. Balt. v. Howard, 6 H. & J. 382; Balt. v. Clunet, 23 Md. 468. The courts cannot presume an intent, but must collect it from the words of the Act and the cause or necessity of its passage ; they cannot correct mistakes nor supply omissions. “We are not at liberty to imagine an intent, and bind the letter of the Act to the intent ; much less can we indulge, m the license of striking out and inserting and remodeling, with a view of making the letter express an intent which the statute, in its native form, does not evidence.” Alexander v. Worthington, 5 Md. 485. “ When the Legislature has used ivords of a plain and definite import, it would be very dangerous to put upon them a construction, which would amount to holding that the Legislature did not mean what it has expressed.” Dwarris on Statutes, 703.
It was undoubtedly within the powers delegated to the city to provide, by Ordinance, for the erection of this building, and to appoint and create the necessary agents and officers to superintend its construction ; but it is conceded that money for that purpose could not be raised by the issual of city bonds, unless power to that end was granted by the Legislature. Instead of first obtaining the necessary grant of power, and then passing Ordinances in execution of it/ the Council who passed this Ordinance themselves framed and adopted, in section 9, a plan for issuing the bonds, limiting their amount, fixing the time after which the city might redeem them at its pleasure, and the rate and times of payment of interest, and then made the effect and operation of the whole Ordinance to depend upon the sole contingency of the confirmation *and ratification of this plan by the Legislature. Their right to do this is unquestioned, and it was eminently proper that the members of the City Council, representing their constituents,
With regard to the mode of confirmation, there is little difficulty if we look to legislative practice in such cases. Ordinances precisely similar have frequently been submitted to the Legislature for confirmation, and the practice established by numerous precedents cited in argument, is for the confirming Act to recite the Ordinance in its very words, then to enact that the same be ratified and confirmed, and grant the power to carry it into effect. We do not mean to say this is the only mode in which such confirmations can be made, for if the intent to confirm can be plainly found in the occasion, the subject matter, and the language of the Act relied on as confirmatory, it will amount to a ratification even if the terms “ confirm and ratify ” be not used. In Dulany v. Tilghman, 6 G. & J. 473, where it was insisted a deed had been confirme4 by an Act of the Legislature,- the court say : “ If we coul4 be
With this exposition of the Ordinance, and the same rules of construction as our guides, let us examine the Act of 1866, ch. 1, which is alone relied on as the required legislative action. Its title is “ An Act authorizing the Mayor and City Council of Baltimore, to build a new City Hall;” and the only provisions in the body of the law are these : “ That for the purpose of building a City Hall, and such other improvements connected therewith as may be deemed necessary, the Mayor and City Council of Baltimore, be and they are hereby empowered to issue City bonds in certificates of not less than $100 each, redeemable in fifteen years, bearing six per cent, interest, payable quarterly, and transferable as other City bonds, to an amount not exceeding $600,000, and shall provide a sinking fund of two cents on every $100 of assessable property annually, for the redemption of the bonds so authorized to be issued : provided, said City Hall shall not be commenced within one year from the passage of this Act.” Not only is there no reference either in the title, or the body of the law, to the Ordinance of 1865, and an entire absence of any words of confirmation or ratification, but the provisions of the law, in every material respect, differ from those of the ninth section of this Ordinance. It authorizes the raising of a larger sum, makes the bonds unconditionally redeemable in a much *shorter time, imposes an obligation to provide a sinking fund by an annual tax for the redemption of the debt, and the whole law is subject to a proviso that the work shall not be commenced within one year from the passage of the Act. It is true both the law and the Ordinance refer to the same subject, and the former is a grant of power to issue bonds, and this, with precedence in point of time, of the Ordinance to the law, are the only circumstances from which confirmation or ratification can be imagined. But to infer such intent from these circumstances would be to draw remote inferences and indulge in vague conjecture. Every conceivable purpose of the Legislature, so far as appears from the face of the Statute, is gratified by con
There being then no confirmation or ratification of its sec. 9, the whole Ordinance, by force of the restrictive terms of its eleventh section, was of “ no effect,” and yet, without any repeal of this restriction or re-enactment of the Ordinance, and consequently when no such office existed, the Mayor, with the approval of the Council in Convention, in May, 1867, appointed the appellees as members of this committee, and under color of this appointment, they now assume to act in *discharge of the duties of their supposed office. At this point, we might rest our decision by stating the obvious conclusion, that this unauthorized appointment to an office which had no existence, was a mere nugatory act, conferring upon the appointees no authority whatever. But other views which demand consideration, are presented in the answer, and the opinion of the court below, and have been earnestly pressed upon our attention by the forcible and ingenious arguments of the counsel for the appellees.
It is said the appointment itself, being the act of the corporation through its executive and legislative departments, and within the scope of its corporate powers, was, in contemplation of law, a removal of the restriction contained in its eleventh section, and operated to make the Ordinance effective. But no such effect can, in our opinion, be attributed to this Act without subverting essential provisions of the City’s Charter.
But it is also urged that the subsequent Ord. No. 48, approved July 23rd, 1867, did, in law, as effectually confirm *or re-enact the Ordinance of 1865, as if it had done either in express terms. This Ordinance of 1867, is entitled “ An Ordinance supplementary to” that of 1865, and provides that the bonds to be issued under the ninth section of the former, shall bear interest payable quarterly, and be redeemable “ at the pleasure of the corporation at any time after the 1st of July, 1882,” authorizes an additional $100,000 of bonds to be issued on the same terms, imposes a tax of two cents on the $100 as a sinking fund for the redemption of the debt, and then repeals so much of the ninth section of the former Ordinance, as may be in conflict with the provisions of this supplement. It is not necessary for the purposes of this case, to determine whether this second Ordinance is a valid execution of power delegated by the Act of 1866, or whether, if it had in express terms re-enacted the Ordinance of 1865, or repealed the restriction of its eleventh section, such re-enactment or repeal would have so operated, in the absence of any reference to the Building Committee, or ratification of their previous appointment, as to make valid the intervening unauthorized appointment of the appellees, for, assuming argumenti gratia,
Nor is this a case to which the doctrine of estoppel by acquiescence, and by acts in pais of ratification can be applied. There may be cases in which a municipal corporation by such means, will be held to have confirmed the acts of a regularly appointed agent or officer beyond the scope of his special authority, provided the corporation had power to authorize such acts to be done, but in such cases the acts of ratification_ “ should be direct, explicit, unequivocal and with full knowledge of the facts.” Baltimore v. Reynolds, 20 Md. 14. But we have been referred to no authority which sustains the position, that an office can be created, or an illegal appointment to an office which does not exist be legalized, by such acts of ratification or acquiescence. The establishment of such a doctrine would lead to mischievous and dangerous results, and it cannot receive the sanction of this court.
Order reversed and cause remanded.