51 A. 953 | Md. | 1902
This is an application for a writ of mandamus. The petition was filed in behalf of the Board of Park Commissioners, by and in the name of the Mayor and City Council of Baltimore, against the Board of Police Commissioners. The relief asked is that the Police Commissioners shall be required to detail, and place under the direction of the Board of Park Commissioners, eighty-three men from the regular force of patrolmen, for the preservation of order within the parks and squares of the city of Baltimore. This demand that the Police Commissioners shall separate and detach from the regular force under their command, about twelve per cent of the total number of policemen and place them under the control of the Park Board to render service in the parks and squares, is supposed to be sanctioned by sec. 95, ch. 123, Acts of 1898. That section, which is a part of the city charter, is in the following words: "The Board of Police Commissioners of Baltimore City is directed at the request of the Board of Park Commissioners to detail from time to time such of the regular police force of said city as the said Board of Park Commissioners may deem necessary for the preservation of order within saidparks and squares, according to the regulations aforesaid,which policemen shall be under the direction of said Board ofPark Commissioners, and shall have the same power in saidparks and squares that the police of the city of Baltimore have as conservators of the peace in Baltimore City or elsewhere." If this section stood alone — if there were no other provisions of the local law bearing on the same subject — it might possibly *746 furnish a ground to support to some extent, but not in its entirety, the Park Commissioners' contention. But there are other enactments forming part of the local law, and equally as important and obligatory as the one just read, and equally as applicable as it is to the subject-matter of this controversy. These will be alluded to in a moment, and then sec. 95 will be interpreted, first, as it now stands, and secondly, in the light of other pertinent sections and in view of the circumstances that suggested and accompanied its adoption when originally enacted.
It may not be amiss to briefly restate a few fundamental and familiar principles which ought not be lost sight of in dealing with the question which this record presents. It must be remembered that a writ of mandamus is not a writ of right granted as of course, but it is one which is allowed "only at the discretion of the Court to whom the application is made. This discretion will not be exercised in favor of applicants unless some just or useful purpose may be answered by the writ."Booze v. Humbird,
That which is now sec. 95 of the charter has been transcribed, with some slight changes, from the Act of 1862,ch. *747 29; and that Act related very largely to the acquisition of land now forming Druid Hill Park. That land was then wholly beyond the city limits and entirely within the outlines of Baltimore County. Sec. 758 of the local law declares: "The said Board of Police Commissioners are required on the requisition of the Board of Park Commissioners, to detail from time to time such number of the regular police force of said city as the said board may deem necessary for the preservation of order withinany parks under their control, which detailed force shallhave the same power in the premises that the police force of thecity have, as conservators of the peace." This provision when originally adopted formed part of the Act of 1867, ch. 367, and was only applicable to Druid Hill Park which was still beyond the city limits. Sec. 744 of the local law, taken almost literally from the Act of 1860, ch. 7, by which the Board of Police Commissioners was first created, provides in part: "The duties of the Board of Police Commissioners * * * shall be as follows: "They shall at all times of the day and night, within theboundaries of the city of Baltimore, as well on the water as on the land, preserve the public peace, prevent crimes and arrestoffenders, protect the rights of persons and property, guard the public health, preserve order at primary meetings and elections, and at all public meetings and conventions and on all public occasions and places, c." Sec. 745, as amended by the Actof 1900, ch. 425, declares: "The said Board of Police Commissioners are authorized and required immediately on entering on the duties of their office to appoint, enroll and employ apermanent police force for the city of Baltimore, which they shall arm and equip as they may judge necessary under such rules and regulations as they may from time to time prescribe," c.Sec. 755 is emphatic in providing that: "It shall be the duty of every officer of police and every policeman and detective, to report to the board and deliver to them all property seized or found by said officer, c." In all of the aforegoing extracts and in others to be read later on the words upon which stress will be laid will be put in italics. Sec. 6 of thecharter and sec. 759 of the local law will be quoted hereafter. *748
Can these various sections be made to harmonize in such a way as to clothe the Park Board appointed by the Mayor, with authority to make, and then enforce by mandamus, the demand which is the basis of this proceeding, without disregarding the words of sec. 95, and without stripping the Police Board of some of its powers and narrowing the limits of its prescribed duties? Before proceeding to answer this inquiry it is essential that the precise demand made should be clearly understood and accurately kept in mind. The exact demand, in the language of the first paragraph of the petition, is, that the Police Board shall furnish to the Park Board "from the regular force of patrolmen,eighty-three men to render service all the year round andsix additional men to serve from May to October, for the preservation of order within the parks and squares of the city of Baltimore, in conformity with the regulations of the Board of Park Commissioners, as authorized by sub-sec. 95 of the Acts of Assembly of 1898, ch. 123, known as the city charter." And the prayer of the petition is for a writ of mandamus commanding the Police Board "to comply with the request of the said Board of Park Commissioners, as in this petition recited." There can be no mistake about the scope and significance of this demand. It distinctly asks that eighty-three men be detached from the regular force and be placed under the direction of the Park Board"to render service all the year round" in the parks and squares. Does sec. 95 standing alone justify that demand? Does it, when construed with the other cited sections, confer such a clear, definite and distinct legal right upon the Park Board to make that demand, and such a correlative duty on the Police Board to comply therewith, as will be enforced by a writ of mandamus?
First. Sec. 95 standing alone gives no power to the Park Board to demand permanent control, or control for a year over any part of the regular force of policemen. At most that sectiondirects the Police Board "to detail from time to time" such of the regular police force, c. These words "to detail from time to time" are not technical words. They are the words of common speech, and as such their interpretaton is *749
within the judicial knowledge, "and, therefore, matter of law."Marvel v. Merritt,
Secondly: Section seven hundred and fifty-eight whilstrequiring the Police Board to detail "from time to time," and, therefore, occasionally, some of the regular police force to preserve order in the parks, does not place the policemen when so detailed, under the direction of the Park Board, as sec. 95
does. By which section are the policemen when detailed for service in the parks to be governed? As members of the force they are undoubtedly bound to obey the Police Board. If under sec.95 they are subject to the direction of the Park Board, and are placed there, detailed, set apart, for a year, as the prayer for mandamus asks, they must obey the Park Board during that year, although sec. 755 makes it the imperative and unqualified duty of every policeman to report to the Police Board. If the men detailed — set apart — for the parks are under the direction of the Park Board, they can *750
not at the same time be also under the direction of the Police Board. That is obvious. Before the parks were brought into the city, the police assigned to the parks were placed under the direction of the Park Board because the Police Board had no jurisdiction as conservators of the peace, beyond the city limits. At that time it was impossible that a clash of authority between the two boards could occur. Now it is otherwise. But what is the utility of the detailed policeman reporting to the Police Board, if, after being assigned to service in the parks, he must take his orders from the Park Board? And how can he be under the direction of the Park Board unless he takes his orders fromthat board? Under sec. 744 and sec. 745, as amended by theAct of 1900, ch. 425, the Police Board has absolute control over the permanent police force enrolled for the city of Baltimore; and the municipal authorities have no right to interfere with that control. For, as was said by this Court more than forty years ago, in Mayor, c., v. State ex rel. Board ofPolice,
Now, as under sec. 744 it is the imperative duty of the Police Commissioners at all times of the day and night "withinthe boundaries of the city" and at "all public * * * places"
to "preserve the public peace, prevent crime and arrest offenders;" and as the parks and squares are public places and are now within the boundaries of the city; it necessarily follows that the jurisdiction of the Police Commissioners includes and extends over those squares and parks, and that the officers and men placed in the squares and parks are, whilst there, under the control and subject to the direction of the Police Commissioners. If this be so — and it does not admit of a reasonable doubt — then there is a palpable conflict between sec. 744 and the antecedent sec. 95 in so far forth as the latter section purports to subject the detailed policemen to the direction of the Park Commissioners; and if both sections are mandatory it is obvious that both cannot prevail. A construction which produces such a repugnancy and which subordinates in any particular the Police Commissioners, who are State officers (Altvater v.Mayor, c.,
Secs. 95 and 758 when first adopted had relation to a different situation from the one which now exists; and when they were put side by side with others which gave in mandatory *754
terms such plenary power to the Police Commissioners throughout the whole city, including the parks, and which denied to the city in prohibitory words any control over the police, they must be treated as simply directory or explanatory, and not as creating exceptions to the broad and imperative powers of the Police Commissioners. A section of the Code — and all these sections of the charter are sections of the Local Code, Art. 4
— may be considered in the light of the original Act from which it was codified and with reference to the times andcircumstances under which the law was passed. Maurice v.Worden,
Nor must the circumstances which preceded and the occasion which prompted the adoption of the Act of Assembly creating the Board of Police Commissioners be overlooked when interpreting the city charter and the miscellaneous local laws to which reference has been made. For some years prior to the adoption of the Actof 1860, ch. 7, and, therefore, during a period when the police force was wholly under the control of the municipality, the city authorities failed to suppress the disorder and lawlessness which prevailed to an alarming extent, and the riots and blood-shed which invariably accompanied a general or local election. The law was defied; the public peace was disturbed; the constabulary were powerless, if not in sympathy with the mob, and reputable citizens were driven by violence from the polls. Relief from the intolerable conditions which existed was finally sought by an appeal to the General Assembly, and the Act of 1860, ch. 7, completely separating the police department from the city government, was the result. The Police Board was created and its members and the force enrolled by them were made State officers and the city was denied, in the most positive manner, any right to interfere with or control the policemen. The underlyingpurpose was to deprive the city of all power over the police. *757 The change made Baltimore one of the most law-abiding communities in the country. Can it be supposed that it was the design of the new charter to return, even partially, to the status which theAct of 1860 abolished?
The language of sec. 95 must yield, if need be, to theintent of the whole enactment, State v. Boyd, 2 G. J. 365; and that intent is perfectly obvious when the considerations already alluded to are given their just and appropriate weight. The words of sec. 95 are simply directory as respects the detailing of policemen for the parks. The Police Commissioners are "directed," and in sec. 758 they are "required" to make the detail; but neither of these words, in view of the whole context and the entire surroundings, creates an imperative, absolute duty, admitting of no discretion. The last sentence of sec. 29,Art. 3 of the Constitution, provides: "And whenever the General Assembly shall enact any Public General Law, not amendatory of any section, or article of the said Code, it shall be the duty
of the General Assembly to enact the same, in articles and sections, in the same manner, as the Code is arranged." This provision though containing the imperative word shall and though imposing an explicit duty, was held by this Court to bedirectory, and a law passed without the observance of that requirement was upheld. Co. Coms. v. Meekins,
Finally: Laying aside all that has been said thus far, there is another view which is absolutely conclusive against the Board of Park Commissioners; and it is this. No one, it is believed, will venture to contend that sec. 95, however interpreted, confers, or was designed to confer, upon the Park Board an arbitrary and capricious power to demand that the Police Board should furnish for service in the parks, any number of policemen that the Park Board might, without adequate reason, ask for. Such a construction, if adopted, would put in the hands of a Park Board a dangerous power which could be used to seriously cripple the efficiency of the whole Police Department. There must, therefore, in the very nature of the situation, be some relation between the number of policemen demanded, the total number available for service throughout the city, and the occasion or needs for which the demand is made. In other words, there must be back of the demand a necessity for the demand; and there can be, consequently, no valid demand without a real necessity to support it. For instance: The total police force is made up of seven hundred men outside of captains, lieutenants, and sergeants. Act of 1900, ch. 425. They are charged with the duty of policing the whole city covering about thirty-one square miles of territory including the parks. If the Park Board should require the Police Board to furnish for a whole year, and not for some special occasion or emergency, one-fourth of the entire force to guard the parks, which contain only about one and eight-tenths *759
square miles; such a demand would be manifestly unreasonable and unlawful. It is clear, then, that there must be some just and appropriate relation between the number of men demanded and the occasion for the demand, to say nothing of the ability of the Police Board to furnish such a number, due regard being had to the duty to police the rest of the city. It is certain, upon the most obvious principles, that no Court would by mandamus
enforce obedience to a demand if in point of fact there existed no just ground for making the demand. This self-evident principle was recognized by the relators in this case, and accordingly in the fifth paragraph of the petition it is distinctly alleged that "the Board of Park Commissioners * * * are unable to properly preserve order and the property of the city within the public parks and squares of the city and protect the peace and safety of the citizens who have access to said parks and squares, because of this failure and refusal upon the part of the Board of Police Commissioners to comply with the request of said Board of Park Commissioners in reference to the necessary members of the police force for the purposes hereinbefore stated." This is clearly an allegation of fact, and in substance it avers that the number of men demanded by the Park Commissioners is necessary for the preservation of peace and order and the protection of property within the parks and squares. Indeed, under the terms of sec.95 it is only when such a necessity does exist that a demand for policemen can be made at all. The relators were therefore required to make the averment contained in paragraph five, or else, on the face of their petition, they would have had no standing whatever in Court. The allegation is therefore a material one. Now, the answer of the respondents flatly denies that averment. The denial is brief, but it is explicit. It says, the respondents "deny the matters and things alleged in the fifth paragraph of said petition." The next docket entry is: "Issues joined on petition and answer." Here, then, is a distinct issue of fact, an issue of fact going to the very root of the case, an affirmance on the one side and a denial on the other that a necessity existed for supplying the *760
Board of Park Commissioners with those eighty-three policemen. Under sec. 7, Art. 60 of the Code of Public General Laws, the Court below had authority to determine that issue of fact provided both the relators and respondents agreed that it should. Eichelberger v. Sifford,
A writ of mandamus must issue as prayed if it is issued at all. Wells v. Com. Hyattsville,
Order reversed and petition dismissed with costs.
(Decided April 1st, 1902.) *762