Cull v. Wheltle

Boyd, C. J., delivered the opinion of the Court. The appellees were on the 24th day of September, 1910, members of and constituted the Board of Police Commissioners of Baltimore City. On that day the Hon. Isaac Lobe Straus, Attorney-General of Maryland, preferred before the Governor “complaints and charges of incompetency and official misconduct” against them, and the Governor named Wednesday, October 12th, 1910, as the time for a hearing.

On October 8th the Governor notified each of the three that in view of the charges and complaints against him he was suspended as a member of the Board of Police Commissioners of Baltimore City, from that date until the decision and determination of the charges and complaints against him, and ordered him to turn over the possession, property, effects and appurtenances of said office to such person as may be appointed by him to hold and exercise the duties of said office for the indicated period of temporary suspension. A commission was issued on the same day to each of the three appellants by which each was appointed a member of the Board during the period of the pendency of the charges and' complaints against the suspended member whose place he was appointed to, “and until the said charges and complaints shall, after inquiry, examination and hearing thereinto and thereof, have been decided and determined.” The appellees having refused to surrender their offices to the appellants,. the latter filed a petition for a mandamus. An answer was filed by the defendants (the appellees) to which the petitioners (the appellants) demurred. The demurrer was overruled and, no further proceedings having been taken by the petitioners, an order was passed refusing and finally dismissing the petition, with costs to the defendants.

From that order this appeal was taken. ⁷⁸ As this is the first time the right of the Governor to suspend an officer, pending proceedings to remove him for cause, has been presented to this Court, or its predecessors, for determination, or, so far as vve aro aware, has arisen in any of the Courts of this State, the case is one of more than usual importance to the people of the State at large, as well as to the parties immediately concerned. The appellees have m'ged several grounds for denying the right of the appellants to the writ of mandamus, hut we will only consider such as we deem necessary or desirable to be determined on this appeal. The primary question is: “Had the Governor the power, under the Constitution and laws of this State, to suspend these officers, pending the proceedings to remove them on the charges and complaints of incompetency and misconduct in office ?” That inquiry is made assuming, but not deciding, that the specifications filed do amount to charges of incompetency and misconduct in office, within the meaning of .the law under which the appellees were appointed. A Board of Police Commissioners for Baltimore City has been in existence for fifty years, but the number of members, the method of their appointment, and other provisions have been changed several times.

By the Act of 1900, Chapter 15, the Governor was .authorized to appoint, by and Avith the advice and consent of the Senate, three Commissioners for the term of two years and until their respective successors were appointed and qualified-—their terms beginning on the first Monday of May next ensuing their appointment. Prior to that time the Commissioners were elected by' the General Assembly (the Mayor being ex officio a member until 1867), and the GoA^ernor had no power to appoint, excepting to fill vacancies during the recess of the Legislature. From 1867 to 1900 the General Assembly, if in session, was authorized to remove the Commissioners for official misconduct, and during the recess of the Legislature the Governor ⁷⁹ was empowered to remove them oil conviction of any felony before a Court of law, and to appoint successors to such delinquent Commissioners until the next meeting of the Legislature. By section 740 of Article 4 of the Code of Public Local Laws, as amended by Chapter 15 of the Acts of 1900, which is still in force, it is provided, that “Any of said Commissioners shall be subject to removal by the Governor for official misconduct or incompetency, in the manner provided by law in the case of other civil officers,” and section 741 provides that: “In case of the death, resignation, removal or disqualification of any Commissioner, the Governor shall appoint a successor for the remainder of the term so vacated, subject to the provisions of the foregoing section, and of the Constitution of the State.” Tt will be observed that the causes for removal are the same as those in section 15 of Article 2 of the Constitution, and the power to fill vacancies is expressly made subject to the provisions of the Constitution on that subject.

We are therefore not called upon to consider, as we have sometimes been, any supposed conflict between the statute and the provisions of the Constitution, but will refer to the latter in our discussion of the case. Section 15 of Article 2 of the Constitution is: “The Governor may suspend or arrest any military officer of the State for disobedience of orders or other military offense; and may remove him in pursuance of the sentence of a Court Martial; and may remove for incompeteney or misconduct all civil officers who received appointment from the executive for a term of years.” That language of itself must be admitted to be at least suggestive, for when the same section authorized' the Governor to “suspend or arrest” a military officer for the causes given, and to remove him in pursuance of the sentence of a court-martial, and then, when it deals with civil officers, only authorizes him to “remove” them, the maxim “txpressio mrkis est exclusio álterius” naturally suggests itself. There ⁸⁰ is no other power of removal of these officers expressly given to the Governor, either by the Constitution or by statute, and there is not only no express power of suspending them, given him, but a striking contrast is made between his powers in reference to military officers and those concerning civil officers. If it be said that it was necessary for him to have the power to suspend military officers for disobedience of orders or other military offence, why did the framers of the Constitution nevertheless expressly insert that power, and yet omit- it in dealing with civil officers, if the power to suspend them be an incident- to the power to remove for cause ?

But the history o£ this provision of the Constitution sheds much light on the subject. Article 48 of the Constitution of 1776 provided: “That the Governor, for the time being,-with the advice and consent of the Council, may appoint the Chancellor, and all judges and justices, the Attorney-General, Haval officers, officers in the regular land and sea service, officers of the militia, registers of .the land office, surveyors, and all other civil officers of government (assessors, constables and overseers of the roads only excepted) and may also suspend or remove any civil officer who has. not a commission during good behavior; and may suspend any militia officer, for one month; and may also suspend or remove any regular officer in the land or sea service; and the Governor may remove or suspend any militia officer, in pursuance of the judgment of a court-martial.” In that Constitution he was thus expressly authorized to suspend or remove any civil officer who had not a commission during good behavior. Then we find in the Debates and Proceedings of the Convention of 1851, that when the Committee on the Executive Department made its report, it recommended,' after stating what is now in section 15 as to military officers, that the Governor “may suspend or remove any civil officer whose term of office is not placed beyond his control by some other provision of this Constitution.” A substitute for that report was offered, including one as follows: “He may remove any ⁸¹ of the civil officers of the government, of his appointment, upon satisfactory evidence of any malfeasance in office, but shall report every such case to the Legislature at the next session thereafter.” There was considerable discussion as to the power of the Governor to remove, and although we do not find any special objection made by the speakers to the word “suspend',” the fact is that when the Constitution was finally adopted this section was changed to read, “and may remove for incompetency or misconduct, all civil officers who receive appointments from the executive for a term not exceeding two years.” The express power to suspend was thus left out of' the Constitution of 1851, and it was likewise omitted in those of 1864 and 1867. If the framers of those three Constitutions had intended that the Governor should not only have the power to remove civil officers, for incompetency or misconduct, but also to suspend them, pending proceedings for such removal, it is impossible to understand why they should' deliberately have omitted the term “suspend.” It is more reasonable to conclude that they did not so intend, as they knew that the power to remove given by section 15 of Article 2 might include-officers of as much importance as many of those elected by popular vote.

When by the Act of 1900 the Legislature gave the-Governor power to appoint the Commissioners, and to remove-them for official misconduct or incompetency, it by the next section (741) of the same Act provided, that “In case of the death, resignation, removal or disqualification of any Commissioner, the Governor shall appoint a successor for the residue of the term so vacated,” but made no provision in case of suspension of a Commissioner, although in section 749 it had expressly provided that “the said Board shall have power to suspend from duty, fine or forfeit the pay of any officer or policeman,” and in section 745 -had said “the period of appointment in the regular police force shall be four .years, unless sooner removed for official misconduct and inefficiency. ⁸² of which, the said Board of Police Commissioners shall determine.” It cannot be denied by any one familiar with the provisions of the Constitutions of 1776 and 1851 that it was in: tended by the framers of the latter to limit the powers of the Governor. Under that of 1776 he had almost unlimited' power of appointment of officers, while in that of 1851, and in the two later ones, most of the important offices were made elective by the people; and the power of the Governor to remove officers of such importance as the Police Commissioners was generally limited to action after conviction in a Court of law. It is said that the right to suspend pending preoeedings to remove is essential to the protection of the public. ■ If that be so, the people of Maryland have been left by the Constitutions of the State in a very helpless condition for many years. Without going back of the present one, it will be seen by an examination of it that the Governor has no power to remove many of the most important officers until conviction in a Court of law, or, in some instances, after action by the Legislature.

That statement applies to Judges, Clerks of Courts, Registers of Wills, the Attorney-General. State’s Attorneys, Justices of the Peace, Constables, the Mayor of Baltimore and others, and there is no provision in the Constitution for the removal of Sheriffs. Important as are the duties of those officers, it could not be pretended that if any of them were indicted, even for serious crimes, the Governor could suspend them, prior to conviction, and then only by virtue of the express power conferred upon him. We are aware that with the exception of the Justices of the Peace, the Governor does not appoint -the officers above mentioned (beyond filling vacáncies in certain cases), but we have referred to- them in reply to what we regard an unsound argument, which is to be found in some of the cases in other jurisdictions which hold that the right to suspend, pending proceedings to remove for cause, is essential, and also for the purpose of showing that the right to sus ⁸³ pend has not been found to be necessary or desirable in Maryland, even in case of such officers as Sheriffs and Constables, upon whom the peace and good order of the counties in a large measure must depend, or the Clerks and Registers of Wills, some of whom handle large sums of public money.

The Police Commissioners of Baltimore City are officers of great importance. Each one of them gives bond in the penalty of $10,000 for the faithful discharge of his duties. They have under them very many persons, perhaps not far from a thousand; they can control the sheriff in the preservation of the- public peace and quiet, can require him to summon the posse comitatus for that purpose; they can even call out the military forces in Baltimore City, and they have unusual and great powers. Their duties are not of a character which can be taken up today and laid aside tomorrow without great detriment to the public.

It would be demoralizing to the discipline of the Police Department and injurious to the public welfare, if they could be suspended at the will of the Governor, or other appointing power, and others temporarily put in their places, and we cannot believe that the Legislature or the makers of our Constitutions ever intended that it should be done. It would be difficult for anyone to discharge the duties of Police Commissioner with that fearlessness and independence which the character of the duties peculiarly demands without making enemies, or at least having his motives misunderstood or misconstrued, and if one must be suspended because charges áre preferred against him, it would be an easy way for designing people to get rid of him for the time being, for if the Governor must suspend them by reason of pending charges preferred at his instance, surely he should do so when they are preferred by others. If the people of the State of Maryland, who framed the Constitution through their representatives and then by their votes ratified it, are to be judged by their actions, they have unmistakably declared that it is not their will that those occupying important public offices.be deprived of them, mere ⁸⁴ ly because they are charged with ineompetency or misconduct. It is not in accord with the spirit that has characterized the people of Maryland at least since 1851 to say, that one deemed worthy by the Governor and Senate of Maryland of a high and important office is to be even temporarily deprived of it, before he is convicted by the tribunal which they, through the organic law, or their representatives in the Legislature, have said shall give him a fair and impartial trial.

Far better would it be to possibly suffer some occasional inconvenience, 'or loss to the State by reason of the incompetency or even misconduct of some public official, than to subject one believed to be worthy of. election or appointment to the mortification and indignity of being even temporarily removed, merely because charges are preferred against him, for it is useless to suggest that an officer is not seriously injured in both his individual'and official capacities by a suspension from office, although he may be eventually acquitted of the .charges against him. On his trial he has the opportunity of letting the public, as well as the tribunal before whom he is tried, judge whether he is guilty or innocent, but a suspension on charges—in this case not even under oath—would not only deprive him of his office for the time being, without a hearing, but almost necessarily carry with it some suggestion of guilt before he has an opportunity to vindicate himself. There is no necessity for such procedure, and we are satisfied that our laws do not contemplate it, however it may be regarded in other jurisdictions. Sections 12, 13 and 14 of Article 41 (Article 42 of Code of 1860) px’ovide the method of procedure before the Governor.

In Harmon v. Harwood, 58 Md. 1 , this Court- through Chief Judge Baetol said, in speaking of them: “The Code, Article 42, in the sections to which we have referred, carefully prescribes and directs the mode by which the Governor is required to exercise this delicate and important power, by providing for notice to the paxffy complained against, an opportunity for defense, the examination of witnesses and a ⁸⁵ full hearing of the ease.” Judgts McSiihkry said, in Miles v. Stevenson, 80 Md. 358 : “It is the utmost stretch of arbitrary power and a despotic denial of justice to strip an incumbent of his public office and deprive him of its emoluments and income before its prescribed term has elapsed, except for legal cause, alleged and proved, upon an impartial investigation after due notice."’' We are aware that both of those cases involved removals, and not merely suspensions, but section 12 of Article 41, provides, that: “Upon complaint made against any civil or military officer who can be removed, or suspended by the Governor, the Governor may summon before him any witnesses to testify for or against such complaint,” and then authorizes the payment of witnesses fees and gives power to the Governor to require their attendance. Section 13 is: “Upon complaints made under the preceding section, the party complaiiied against shall have a copy of the complaint and notice of the time when the Governor will inquire into and examine the same.” The complaints “under the preceding section” are those “made against, any civil or military officer who can be removed or suspended by the Governor.” Clearly then if the appellees are civil officers who can be suspended, they have under those sections the same right to a hearing before being suspended, as they would have before being removed, if the language of the statute is to be followed. Those sections were enacted in 1786, when the Constitution of 1776, which expressly authorized suspensions and removals was still in force, and they were just as applicable to the one as to the other.