Ahlgren v. Cromwell

²⁴⁵ Sloan, J., delivered the opinion of the Court. William V. Ahlgren, a watchman at the State House in Annapolis, a position from which he had been dismissed, applied for the writ of mandamus to compel R. Chester Cromwell, superintendent of public buildings and grounds, to reinstate him. The petition recites that on October 1st, 1920, Govern- or Albert C. Ritchie, by executive order, on the authority of section 21, chapter 41, Acts of 1920, undertook to extend the State Merit System (Code, article 64A), by taking into the system the State House watchmen, who had been excluded by section 2 of the Act of 1920; that on February 26th, 1937, the petitioner took an examination for classified service as watchman, passed, and on or about September 1st, 1937, was certified to the Governor and appointed to the position by him, where he remained until May 31st, 1940 ,when he was discharged by the superintendent of public buildings and grounds, R. Chester Cromwell, by order of the Governor, without any charges being preferred, but merely on the theory that his position was not under the Merit System, and, therefore, he was removable by the Governor; that the removal of the petitioner was in violation of article 64A of the Code, Act of 1920, ch. 41; and of section 4, part 1, chapter 29 of the Acts of 1922, and of chapters 70 and 515 of the Acts of 1939. The respondent, appellee, demurred to the petition, and, from an order sustaining the demurrer, the petitioner appeals.

By section 2 of article 64A, it was provided that certain named positions or offices should not be included in the classified service, “and all other persons holding positions by direct appointment from the Governor or from the Board of Public Works.” Section 59 of article 41 of the Code, Act of 1906, ch. 551, provides that the Governor shall appoint, “A competent person to be superintendent of public buildings and grounds, * * * three persons to watch and guard the public buildings by day, and to act also as policemen, ²⁴⁶ * * * three persons to watch and guard the public buildings by night.” So that these, and the petitioner is one of them, under this statute receive their appointments directly from the Governor and are excluded in terms from the Merit System, article 64A. The petitioner contends, however, that this provision is nulified by the Act of 1920, ch. 41, sec. 21, Code of. 1939, art. 64A, sec. 25, which reads: “The Governor, may, by executive order, from time to time, add to the classified service such offices and places of employment excepted from or not included in the classified service as hereinbefore defined, as he may think advisable; whereupon such offices and places so added shall become a part of the classified service in the same manner as those hereinbefore classified, and shall not be taken out of the classified service except by an act of the Generaly Assembly.” The question then is the validity of this section. The court below held that it is invalid and that the executive order of December 28th, 1920, was void and of no effect. A mandamus had been sought in the same court by the predecessor of the appellee in this case, with the same result, but no appeal was there taken.

Section 59, article 41 of the Code, which provides for the appointment of watchmen by the Governor, is an Act of the Legislature, as is chapter 41 of the Act of 1920, excepting the same position from the classified or merit system, and there is nothing in the Act of 1920 which expressly or by implication repeals it, unless the delegation of power in the Governor by section 21 is to be so construed. What this section does, if valid, is not to disturb section. 59 of article 41, by the Act of 1920, but to give the Governor the power to recognize and follow it, or to repeal it at his pleasure; in other words, so far as section 59 is concerned, grant to the executive power to legislate. It was a legislative act to adopt the provision for the appointment of the watchmen; it requires action by the Legislature to repeal or amend it, and we have not been shown, nor do we find, that this has been done. Calvert County v. Monnett, 164 Md. 101, 104 , 164 A.