Carey v. Jackson

Sloax, J., delivered the opinion of the Court. The plaintiffs (appellants), Francis King Carey and Victorine K. Robqrtson, as citizens and taxpayers of the City of Baltimore, for themselves and any others who might join in the suit, filed their bill of complaint against Howard W. Jackson, Mayor of Baltimore, Walter L. Clark, Ralph F. Proctor, and William H. Lawrence, members of the City Service Commission of Baltimore, and R. Walter Graham, City Comptroller, wherein they charged the invalidity of so ⁴⁷⁴ much of an ordinance of the Mayor and City Council as the Mayor assumed authorized him to appoint two persons not on the classified or civil service list, whose offices or employments were below the grade of the head of the “Bureau of Control and Accounts,” created by the ordinance. The defendants demurred to the bill as a whole, and, from a decree sustaining the demurrer without leave to the ‘ plaintiffs to amend their bill, this appeal is prayed. By section 6, subsection 15-B, of article 4, Public Local Laws of Maryland (Baltimore City Charter, Acts of 1924, ch. 418), the Mayor and City Council of Baltimore is authorized to “provide by ordinance for the reorganization of the several municipal offices, boards and commissions, embraced in section 31 [which comprises all of the administrative branches of the city government] or in any other section or sections of this article or in any ordinance, and in order to co-ordinate the same to organize, reorganize and abolish any office, board or commission and/or consolidate the same with any other office, board or commission and provide for the several duties, powers and functions thereof and/or the transfer thereof in whole or in part to or with any other office, board or commission,” in pursuance of which the Mayor and City Council passed an ordinance creating the bureau of control and accounts, the head of which was to be known as the chief accountant.

By section 4 of the ordinance it was provided that “the Mayor of Baltimore shall organize the Bureau of Control and Accounts by appointing properly qualified persons as Chief Accountant, Assistant Chief Accountant, Cost Accountant, General Bookkeeper, and such other assistants and help as may be advisable. Immediately after the Bureau has been organized, all positions in the Bureau then existing or which may thereafter be created in the Bureau shall be and become part of the classified service of the City of Baltimore and shall be subject to the laws, rules, and regulations governing that service. All future appointments to the Bureau to fill vacancies caused by death, resignation, dismissal, retirement, or by any other reason, shall be made by the City Comptroller from eligible ⁴⁷⁵ lists established by the City Service Commission. In making the first appointments, the Mayor is authorized to transfer to the Bureau of Control and Accounts any person already employed by the City of Baltimore and performing similar services to those established in said Bureau.” Upon the passage of the ordinance, the Mayor appointed William A. Jackson general bookkeeper, and William J. Edelen junior accountant, neither of whom had been in the list classified by the City Service Commission in accordance with the civil service provisions of the Charter, sections 203A-203Q.

There is no contention that the Mayor and City Council did not have the power under the Charter to pass the ordinance creating’ the Bureau of Control and Accounts, but it is contended that the employees below the head of the Bureau, designated as chief accountant, should be taken from the civil service, or classified list, certified by the City Service Commission (Strott v. Broening, 160 Md. 560 , 154 A. 45 ), and that the part of section 4 of the ordinance which authorizes the Mayor to make the initial appointments outside the classified list is a violation of the city service section of the Charter, and the provision that all appointments affecting the organization of the Bureau is an evasion of the mandatory provisions of the Charter with respect to the eligibility qualifications of all employees of the character provided for in the ordinance below the grade of the chief accountant, and that not only are the appointments of William A. Jackson and William J. Edelen void, but that so much of section 4 of the ordinance as permitted their appointments to be made is invalid and that the remedy is by injunction. The defendants’ contention is that the only question involved is the right of Messrs. Jackson and Edelen to their respective offices and that the only remedy in this state to test that right is at law by mandamus. If the only question involved were the validity of the ordinance authorizing the appointments of the general bookkeeper and of the junior accountant, and the unauthorized payment of salaries to ineligible appointees, the question might be cognizable in equity, though