Field v. Malster

McSherry, C. J., delivered the opinion of the Court. This controversy raises the question as to whether the ⁶⁹³ Mayor of Baltimore City possesses the power to remove summarily and without cause a member of the Board of Visitors of the City Jail. The case was argued with marked ability on both sides, and its importance has caused us to give it the most careful consideration. The power claimed by the Mayor, and actually exerted in this instance, is wide and far reaching, and unless clearly and unequivocally conferred cannot be upheld.

By the charter of the City of Baltimore authority is given to the Mayor and City Council “ to provide by ordinance for the appointment, as other city officers are appointed, of visitors or other superintendents of the jail of said city, and to prescribe the powers and duties of such visitors or superintendents.” Code, Pub. Local Laws, Art. 4, sec. 333. Section 1, Article 29, of the City Code of 1893, enacts: “ There shall be biennially appointed, as other city officers are appointed, six citizens of Baltimore, to be called the ‘ Board of Visitors of the Jail of Baltimore City,’ and the Mayor shall be ex-ofñcio a member of said board.” Section 43 of Article 1 City Code of 1893 declares that “ all officers of the City except the Register and any other person holding any office for whom a different term may be prescribed in the ordinance creating such office, shall be appointed biennially in the month of February, and shall enter into their respective office on the first day of March immediately following their respective appointments.” In 1896 the appellant was appointed by Mayor Hooper one of the Board of Visitors of the City Jail. He was duly confirmed and commissioned and subsequently qualified.

He served two years and in March, 1898, he was re-appointed by Mayor Malster and was again duly confirmed and commissioned. He again qualified and entered upon the discharge of his duties. Some time in May or June following, a majority of the Board of Visitors, acting under and in accordance with the authority conferred upon the board by the statutes of the State, convicted, “ after a fair and impartial hearing,” certain of the officers or employees of the jail of dereliction of duty and requested the warden to discharge ⁶⁹⁴ the delinquents. This was done by the warden.

Thereupon Mayor Malster instructed the warden to reappoint the men thus removed by the Board of Visitors, and he asked the board to reconsider its action in dismissing them. The appellant refusing to comply with the Mayor’s wishes, was invited by the Mayor to resign. He refused to resign, and on July the twentieth the Mayor wrote him as follows: “ Sir: I asked for your resignation on July n inst., and up to the present time have received no reply. I therefore respectfully notify you that your place as a member of the Board of Visitors of the Baltimore City Jail is declared vacant from this date.” The Mayor then appointed Oscar E. Ross to fill the alleged vacancy; and on August the fourth the appellant filed in the Baltimore City Court a petition for a writ of mandamus against the Mayor and the warden of the jail requiring them to restore to the relator the rights, privileges and powers of the office of Visitor of the Jail; and against Oscar E. Ross commanding him to cease the exercise of all authority as one of the members of the board.

The petition was answered and amongst other things reliance was placed upon sec. 46, Art. 1, of the City Code of 1893. That section reads thus: “ A term of holding shall not be deemed to be created by any resolution or ordinance só as to affect the power of removal given to the Mayor by Article IV, section 31, of the Public Local Laws, because such resolution or ordinance may prescribe that such officer or officers may or shall be appointed biennially or in the month of February, or as other city officers are appointed, or by any other like expression indicating a periodical duty of appointment, and such words shall not be deemed and taken as otherwise provided by law or ordinance so as to annul the power of removal intended to be given by said section.” To a part of the answer the relator filed a plea setting forth that sec. 46 had been repealed by ordinance No. 13 adopted March 9, 1896; and to the residue of the answer he demurred. The respondents, by way of demurrer to the plea, admitted the passage of ordinance No. 13 as a matter of ⁶⁹⁵ fact, but denied, as a matter of law, that its passage resulted in the repeal of sec. 46. The case thus stood at issue on demurrer.

Upon hearing, the relief sought was denied, the petition was dismissed and the relator appealed. It is not only conceded that the Mayor undertook and intended to remove Mr. Field from the office of Visitor of the Jail, but it is insisted that he was clothed with full authority to do so. Whether he had such authority depends, first, upon the character — the duration — of the relator’s tenure; and secondly, upon the provisions of the statutes and ordinances pertaining to the power of removal. The power of appointment to an office is not involved in this case as it was in Hooper v. Creager, 84 Md. 195 , but the power of removal is distinctly challenged.

By sec. pi, Art. 4, Ptib. Loe. Lazvs, amongst other things it is provided that, “ All persons holding office under the corporation of the City of Baltimore shall, unless otherwise provided by law or ordinance, hold their respective offices during the pleasure of the Mayor.” The power of removal is essentially incident to and included in the power to terminate the tenure of an officer, and the power to terminate a tenure is inseparable from a holding at the pleasure of another. Hence in all cases where either the statute law or the ordinances do not prescribe or fix a definite term of holding, the Mayor may remove the incumbent at any time.

We must turn, then, to the charter and the ordinances to ascertain the character of the term of the relator’s office. It is obvious that sec. pi just referred to authorizes the municipality to create a definite term of office where no such term is provided by the charter; because the section declares that only such holdings shall be at the pleasure of the Mayor as are not otherwise, that is, definitely, fixed by ordinance or by statute. Possessing, then, the power to prescribe a definite term by ordinance, the Mayor and City Council adopted the ordinances we Lave already quoted from — the one, requiring that six visitors of the jail shall be biennially appointed, and ⁶⁹⁶ the other, of later date, declaring that all officers, except those for whom a different term may be designated, shall be appointed biennially in the month of February and shall enter into their respective offices on the first day of March following. These ordinances read together, as they must be, can mean but one thing.

They require a biennial appointment of the Visitors of the Jail, and they prescribe the beginning of the term as the first day of March. These visitors are directed to be appointed in February, their terms begin in March and their successors cannot be selected and cannot assume office for two years thereafter. If this does not make a definite term for two years it is difficult to suggest a reason why it does not. The beginning of the term is fixed; the time when the successors of the incumbents shall enter is also fixed, and this marks the end of the term; and the selections are to be made biennially, and this designates the duration of the term.

Every element that is necessary to make a definite term is present— the beginning, the end and the duration. Now, sec. 45, of Art. 1, City Code, designates this a term of office, as contradistinguished from a holding at will, because it fixes two years as the duration of all official terms unless a “ different term ” is named in the character or ordinances. A different term obviously means some term other than the one defined by this section; and consequently, of necessity, implies a term. A different term cannot differ from no term — there must be a term from which it does differ when the two are compared. “ The word ‘ term,’ when used with reference to the tenure of office, ordinarily refers to a fixed and definite time and does not apply to appointive offices held at the pleasure of the appointing power.” 19 Am. & Eng.

Ency. 562 K. The words of the ordinances we have been considering or equivalent words have always been construed to create a definite term. Robb v. Carter, 65 Md. 333 ; State v. Wayman, 2 G. & J. 278 ; Thomas v. Owens, 4 Md. 218 ; Sansbury v. Middleton, 11 Md. 312 . If the relator’s term of office be a fixed and definite one, then he cannot be arbitrarily and summarily re ⁶⁹⁷ moved without cause, unless there is some express provision of law authorizing such a removal during the term. Townsend v. Kurtz, 83 Md. 342 .

Accordingly, section 46 of Art. 1, City Code, which has been quoted in an earlier part of this opinion, has been relied on as justifying the removal of Mr. Field. This ordinance undertook to define the meaning of antecedent enactments. In Farnan’s case, 85 Md. 598 , we called this ordinance a declaratory ordinance, and we said, in the same connection, that it was intended primarily to define what words in the various city ordinances relating to the appointment of city officers should not be construed to create, or as intending to create, a definite term of office. But this statement, in view of the context, by no means meant or can be construed to imply that sec. 46 was declaratory of what had been, or apart from its provisions was, the law.

It was declaratory in the sense of defining — interpreting by legislative enactment —various forms of expression in earlier ordinances, and in limiting to a narrower scope, phraseology which without such an interpretation or restriction would have created definite terms, so far forth as to prevent the Mayor from removing the incumbents without cause. It accordingly enacted that a term of holding which would defeat this power of removal by the Mayor should not be considered as created by an ordinance which provided that the officer should be appointed biennially, or in the month of February; but it nowhere undertook to affirm or declare that apart from its own provisions placing that interpretation on such terms of holding, those terms of holding had always created only such a tenure as made the incumbent an appointee at will. Farn an’s case does not decide that the ordinance was declaratory in this latter sense; but carefully restricted the word declaratory to the sense of defining the meaning ascribed by sec. 46 to antecedent ordinances. The ordinance did not, and could not, make a term that was specifically declared to be a definite term, a mere holding at the pleasure of the Mayor.

The school commissioners, with whose tenure we were dealing in Far- ⁶⁹⁸ nan’s case, held for a term of four years. This section 46 was set forth and relied on in the answer in that case to show that they could be summarily removed by the Mayor. We held that the ordinance did not apply be-cause it was simply declaratory of the meaning — it construed the language of other ordinances which did not in express words create definite terms, but created them by general phrases which had always theretofore, and but for that section 46 would still have, been interpreted to intend a fixed term. No possible reading of section No. 46 could have made it cut down a four years term, expressly declared to be for four years, and convert it into a holding at will.

A. four years’ term was not within any of the categories contained in section 46. But for sec. 46 there could, we think, be no pretence that the term of the Visitors of the Jail is anything other than a definite and fixed term of two years. Nothing besides this ordinance was relied on in the answer or in the argument to convert this definite term into one practically at the pleasure of the Mayor. The relator by his plea to the respondent’s answer alleges that sec. 46 was repealed on March 9, 1896, by ordinance No. 13.

The passage of ordinance No. 13, is, as a matter of fact, admitted, but as matter of law it is denied that its passage abrogated or repealed sec. 46. And here lies the main contention in the case. Ordinance No. 13, which is brought before us by an agreement in the record and is relied on in the pleadings, is entitled “ an ordinance to repeal sections 45, 46 and 47 of Article 1, Baltimore City Code of 1893, title ‘ Mayor and City Council ’ sub-title, ‘ City Officers ’ and to reenact the same with amendments.” The first section explicitly repeals sections 45, 46 and 47 and re-enacts 45 and 47. Both 45 and 47 have relation to the appointment of city officers.

They- — these two sections — together with other ordinances passed during the controversy between Mayor Hooper and the City Council, attempted to strip the Mayor of all participation in naming the various officers of the city; and with that end in view they undertook to lodge in a joint conven ⁶⁹⁹ tion of the City Council the sole power of appointment. Amongst others was ordinance No. 42 which repealed and re-enacted secs. 31 and 32 of Art. 50 of the City Code of 1893, and that is the