Heiskell v. Mayor & City Council

Stone, J., delivered the opinion of the Court. It appears from the agreed statement of facts, filed in this case, that the appellant, Heiskell, was in February, ¹⁴⁶ 1883, duly appointed Eire Marshal of Baltimore City, under an ordinance passed by the Mayor and City Council, and that he qualified as such Eire Marshal, and entered upon the duties of the office, and continued to discharge the same, until about the 1st of April, 1884. That by an ordinance passed by the Council and approved by the Mayor in March, 1884, the ordinance passed in 1883 and above referred to, creating the office of Fire Marshal, was repealed, and a Board of Fire Commissioners created in its stead. That the Board of Eire Commissioners having been duly appointed, demanded possession of the office occupied by the Fire Marshal, but the appellant refused at first to deliver the office to said Board.

But the officers and men, comprising the Eire Department, having submitted to the Eire Commissioners, the appellant surrendered the office to them under protest. The appellant claims that the ordinance of 1883, under which he was appointed Eire Marshal for two years, was. not repealed-by the ordinance approved March, 1884, and that as he was ready and willing, and offered to perform the duties of Fire Marshal for the whole time of two years, for which he was appointed, he claims his salary for the balance of the term, or for some part of it. It will be perceived from this statement, that the principal, and indeed we may say, the only question in this case, is whether the ordinance of 1883, creating the office of Eire Marshal was repealed by the ordinance of 1884, substituting a Board of Fire Commissioners for the Fire Marshal. If the ordinance of 1883, was legally repealed by the-action of the Mayor and City Council in 1884, there is an end of the appellant’s case-.

The whole difficulty arises from the action of the First Branch of the City Council. If the repealing ordinance did not legally pass that Branch it was in fact- no ordinance. If it did so pass that Branch, it is conceded that it is valid, as there is no dispute that it properly passed the Second Branch, and was approved by the Mayor. ¹⁴⁷ The question, whether the repealing ordinance was passed by the First Branch, depends upon the force and effect of the rules of procedure adopted by the First Branch, and which were in force at the time of the passage of the repealing ordinance, or we may more properly say, of one of the rules of procedure. That rule is as follows : “If at the hour of meeting a quorum be not present, the absent members may be sent for, if required by a majority of those present, or an adjournment may be made to the following day; but a quorum being present, (two-thirds of the members being necessary,) the roll shall be called by the clerk, commencing with the president, and proceeding with the members representing the wards in numerical order.” - Waiving any objection that may be made to the wording of this rule, we will treat it as a rule duly made by the First Branch, at its first session, fixing and declaring that two-thirds of the members of that Branch should constitute a quorum for the' transaction of business, and not a less number ; we may go a step further and take it for granted that when they passed that rule the members of that Branch supposed that they had the power to enact such a rule, and that they conceived that it was, until repealed, obligatory upon them, and the question then is squarely presented, “ had the First Branch the legal right to determine what should constitute a quorum ?” The appellee, a municipal corporation, was created by Act of the General Assembly.

Of the power of the General Assembly to fix and determine what should be a quorum, there can be no possible doubt. This power the General Assembly has several times exercised. Thus in 1796 it provided that a quorum of the City Council should consist of three-fourths of the members; subsequently the Legislature fixed the quorum at two-thirds; but, finally, in 1868, in amending the law relating to the City Council, ¹⁴⁸ nothing was said as to what should he a quorum, and so the law stood, at the time the repealing ordinance was passed. But when the Legislature omitted, to exercise its undoubted prerogative, to declare what should constitute a quorum, it by no means intended to delegate that most •important power to the Council itself.

A municipal corporation is created for public and political purposes, and as to these corporations, Mr. Dillon says, “ It is a general and undisputed proposition of law, that a municipal corporation possesses and can exercise the following powers, and no others: first, those granted in express tvords; second, those necessarily or fairly implied in, or incident to, the powers expressly granted ; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power, is resolved by the Courts against the corporation, and the power is denied. They can exercise no powers but those which are conferred upon them, by the Act by which they are constituted, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties,and the accomplishment of the purposes of their association.” ■ Now it has .been urged, in behalf of the appellant, that the Legislature having granted to this municipal corporation the right, “ to settle' their rules of procedure,” this power includes the right to fix the quorum, “Rules of procedure ” are rules made by any legislative body, as to the mode and manner of conducting the business of the body. They are intended for the orderly and proper disposition of the matters before it.

Thus, what committees, and upon what subjects they shall he appointed ; what shall be the daily order in which the busi-. néss shall be taken up ; in what order certain motions shall be received, and acted’ upon, and many other kindred ¹⁴⁹ matters are proper subjects of the rules of procedure. These rules operate no where except in the legislative hall of the body that adopts them, and in this country, where, what is called in England standing orders, are almost unknown, expire at the end of the session. But these rules of procedure never contravene the statute or common law of the land. When the Constitution of the United States gave to each house of Congress, and the Constitution of the State of Maryland to each house of the General Assembly, the right to determine its rules of proceeding, it was never held for a moment that such a right included the power to change any existing statute or common law; much less can a municipal corporation claim the right under the guise of permission to frame their rules of procedure, such unlimited power.

This surely must be conceded by every one ; and being so