Hooper v. New

McSherry, C. J., delivered the opinion of the Court. The appellee was appointed by a joint convention of the two branches of the City Council, one of the School Commissioners of Baltimore City, pursuant to the provisions of Art. ‡‡ of the City Code of i8gj. The ordinance therein contained makes provision for the appointment of School Commissioners of the city by a joint convention of the two branches of the Council. When the appellee presented himself to the Mayor to have the oath of office administered by the Mayor, the latter refused to administer the oath and ⁵⁷² placed his refusal on the ground that the appellee had not been legally appointed.

The Mayor maintained that the appointment was illegal because the ordinance under which it had been made was ultra vires and void. And it was insisted that the ordinance was ultra vires and void because it is in conflict with section jo of Art. 4 of the Code of Local Laws. That section is in these words : “ They (the Mayor and City Council) may pass ordinances regulating the manner of appointing persons to office under the corporation, which they are or may be authorized by law to appoint, but unless such ordinance be passed the Mayor shall nominate, and by and with the advice and consent of a convention of the two. branches-of the City Council, shall appoint all officers under the corporation, except the Register of the city and the clerks employed by the city or under its authority, &c.” Upon the refusal of the Mayor to administer the oath of office to the appellee, he made application by petition to the City Court for a writ of mandamus to compel the Mayor to administer the oath. To this petition the Mayor filed an answer relying upon the alleged illegality of the appellee’s appointment by reason of the asserted invalidity of the ordinance.

To this answer the appellee demurred ; the Court sustained the demurrer and ordered the writ to issue. From that order this appeal was taken by the Mayor. The paramount question involved is whether the ordinance under which the appellee was appointed a School Commissioner of Baltimore City is valid or ultra vires and void; and this question is presented and brought up directly on the face of the record. The question at issue arises, it is claimed, under the same section of the Code of Local Laws that was before us in the Hooper and Creager case recently decided by this Court ( 84 Md. 19S ).

There is, however, a clearly defined line of distinction between that case and many other cases that might arise under the same section, and which, if they did arise, it has been supposed, would be covered and controlled by ⁵⁷³ that decision ; but in spite of this distinction there appears to be some misunderstanding as to the scope and effect of the Court’s opinion in that case, and there also exists an impression that it is conclusive of the issue here involved. In Hooper and Creager we were dealing with the case of a municipal officer, distinctively and confessedly such, the method of whose appointment was prescribed -by a designated section of the Local Code, and with that section the ordinance under which Mr. Creager had been appointed was asserted to be in conflict. We did not have before us and therefore did not pass upon the case of a subordinate employee or laborer or other like inferior servant, whose selection, in the very nature of things, was never designed or intended to be, and in fact is not, embraced within the terms of the statutes embodied in sec. jo of Art. 4 of the Local Code. And as we had no such question to decide we deemed it wholly unnecessary to step aside a single pace from the straight path before us, and declare what particular appointments were not included within the scope of our decision.

The duty of a Court is done, as we apprehend, when it decides the case before it, and it is obviously no part of that duty to declare that the Court has not decided something wholly different; or to enumerate, in anticipation of possible future contests the instances in which, by reason of a difference of facts, the opinion would not be applicable. The language which a Court employs, the reasoning which it resorts to for the purpose of disposing of a particular question ought not to be wrested from the context and the occasion, and strained so as to be made pertinent or seemingly pertinent to some other distinct and dissimilar question. But this is frequently done incautiously, and some persons are by that erroneous process led to suppose that results are established by a judicial opinion, though those results do not logically follow from it at all. There may be sometimes an apparent similarity between cases; but .it ought not to be forgotten' that mere similarity is not identity.

It is a common fallacy, this inference that a conclu ⁵⁷⁴ sion is universally and under all conditions, sound, because it is sound in a particular instance and under peculiar circumstances. It does not follow that a conclusion which is true secundum quid, or in a certain respect, is also true simpliciter, or simply and absolutely. In the Creager case we were dealing with an ordinance regulating or attempting to regulate the manner of appointing persons “ to office ” — to a municipal office — and not with an ordinance regulating the method of employing or appointing servants or laborers and kindred subordinates, who are in no .sense officers of the municipality at all, but are merely and essentially employees. Consequently the language used in the opinion in that case must be understood as applicable to municipal officers — the class of persons designated in sec. 30 of Art. 4 — as contradistinguished from mere employees.

Nor does the • Creager case touch upon or involve the specific point now presented. If the School Commissioners are municipal officers, and if there had not been any legally prescribed mode provided for their appointment other than that contained in sec. 30, Art. 4, which applied to Mr. Creager’s appointment, then, undoubtedly the mode of selecting School Commissioners would be within the reason, and, therefore, within the effect and operation of the decision in the Creager case. But it is right here that the Creager case and this case diverge. It is precisely because sec. 30 of Art. 4 does not apply to School Commissioners any more — though for a different reason — that it applies to a bailiff in the Tax Collector’s office, an employee under the City Commissioner or hundreds of other subordinates in the service of the city, that wffiat was said in Creager and Hooper can have no influence upon the decision of this case.

If it be assumed, though it is by no means conceded (and certainly it is not now decided), that the School Commissioners are municipal officers, as contradistinguished from agents of the State selected by the municipality under power delegated by the State, to carry on within the limits ⁵⁷⁵ of the city the beneficent purposes of the general school system of the commonwealth — just as a State Tax Collector in a county is an officer of the State, though selected by the County Commissioners — still the predominant proposition that their appointment does not fall within the terms of section 30 of Art. ‡ of the Local Code, remains to be demonstrated. If their appointment does not fall within that section we have no further need or occasion to allude to the Creager case hereafter in this opinion. Now, what is the method provided for the appointment of the School Commissioners of Baltimore City, and under what authority was the method adopted ? The Local Act of 1823, ch. 130, declares: ‘'That the Mayor and City Council of Baltimore shall have power to establish public schools within the city of Baltimore and section 21 of chapter 162 of the General leaves, passed at the same session of the Legislature, vested in the Mayor and City Council the authority to establish and regulate the public or primary schools of the city.

Under these statutes and pursuant to their design, an ordinance was passed by the municipality in eighteen hundred and twenty-eight, by which it was, amongst other things, provided that the Commissioners of Public Schools should be chosen by the two branches of the City Council in convention ; and this prescribed method thus specifically fixed by that and by subsequent amendatory ordinances, apart from being recognized by the Act of 1845, ch. 120, was fully and completely ratified, sanctioned and validated afterwards — even if antecedently invalid — by the organic law of the State; for by section 3 of Article 8 of the Constitution of 1864 it was expressly ordained that: “ The School Commissioners of Baltimore City shall remain as at present constituted and shall be appointed as at present, by the Mayor and City Council, subject to such alterations and amendments as may be made from time to time by the General Assembly or the said Mayor and City Council. ” It should be noted that this constitutional provision prescribed two things. First. It declared that the School ⁵⁷⁶ Commissioners of the city should remain as then constituted and secondly, looking to the future, it ordained that they should afterwards “ be appointed as at present,” that is, in the mode then existing. The Constitution of 1864, therefore, not only ratified the then subsisting method of appointment, but provided that the same method, viz., by a joint convention of the two branches, should thereafter be pursued, unless changed or altered by the General Assembly or by the municipality.

It seems too clear for serious controversy that when the Constitution of 1864 — the Supreme ]aw of the State — provided -that the School Commissioners should be appointed in the method then pursued, that is, pursued under the ordinance of 1826, as repeatedly re-enacted, it distinctly sanctioned the appointment by a convention of the two branches of the City Council, for that was the sole method then in force and then followed ; and however other officers of the municipality might have been required to be selected under the Acts of 1817 and 1828, which formed sec. 23 of Art. ‡ of the Local Code of i860, and which now form, section 30 of Art. ‡, Local Code of 1888, these appointees — the School Commissioners of the city were not. within the terms or the scope of the Local -Code; and their appointment was provided for by a totally different and wholly distinct .method. Whilst under the Act of 1865, ch. 160, which established, pursuant to the mandate of the Constitution of 1864, a general public school system throughout the State, the primary schools -of the city were brought under and in a measure moulded into that system itself; still that statute did not strike down the entire autonomy of the local schools, but left the mode of selecting the School Commissioners for the city, as fixed by the ordinance of 1828, precisely where the Constitution of 1864 had uequivocally placed it, in a joint convention of the two branches of the City Council. This in substance and effect our predecessors determined in School Coms. of Baltimore v. State Board of Education, 26 Md. 505 . In eighteen hundred and sixty-six another ordinance was ⁵⁷⁷ adopted by the Mayor and City Council, whereby the number of School Commissioners was increased to twenty, and whereby numerous details of the local system were prescribed ; but no change whatever was made in the mode of appointing the Commissioners.

So far from a change being made, the identical method prescribed by the old ordinance of 1828, viz., a selection by a joint convention of the two branches of the City Council was in terms specifically reenacted. This ordinance of eighteen hundred and sixty-six, passed at the very time that sec. 25 of Art. 4 of the Local Code of i860 (which is practically identical with sec. jo, Art. 4 of the present Local Code as transcribed in the beginning of this opinion), was in force, was clearly such an ordinance as the municipality had the power, under the broad terms of sec. 3, Art. 8, of the Constitution of 1864, to enact; for it was, in so far as it related to the mo.de of making the appointments.of the City School Commissioners, simply a reiteration of the provisions of the ordinance of 1828 as frequently amended and re-enacted. It cannot be doubted that the Mayor and City Council had the unquestionable power under the Constitution of 1864 to pass the ordinance of 1866, inasmuch as the Act of 1865 made no provision whatever for the appointment of City School Commissioners, and inasmuch as there was no other law that did. • At the very time this ordinance of 1866 was adopted, and validly adopted under the plenary power conferred by the Constitution of 1864 upon the municipality, the identical law {sec. 25, Art. 4, Local Code i860), under which, as contained in section jo, Article 4, Local Code of 1888, it is now claimed the School Commissioners must be nominated by the Mayor and by and with the advice and consent of a joint convention, appointed, was in full force and vigor. Still, assuming as we have throughout, that a School Commissioner is a municipal officer, it can scarcely be contended that the method of selecting School Commissioners, first resorted to in 1828 (but whether rightfully then or not is wholly immaterial, because it was afterwards ⁵⁷⁸ unequivocally sanctioned by the organic law in 1864) — it can scarcely be contended, we repeat, that this method was not an exception to the general mode provided by the Local Code for the appointment of other municipal officers.

It was an exception created by an ordinance in 1828, and that ordinance was given the force of law by the Constitution itself, and the ordinance not having been changed in this particular — respecting the mode of appointment — by the ordinance of i860, but being re-enacted by the latter, it obviously continued to have the same force and efficacy which the Constitution imparted to it, unless the mere abrogation of the Constitution of 1864, and its being superseded by a later one, has deprived the ordinance of its vitality. When the ordinance became obligatory by force of the Constitutional provision alluded to, how could the adoption of a new Constitution, without more, take away the character antecedently given to the ordinance ? But it is needless to speculate upon this subject, because there is a most conclusive reason for holding that the adoption of the Constitution of 1867 did not destroy or impair the efficacy of the ordinance of 1866. The Constitution of 1867 contained a separate Article pertaining to Baltimore City, and amongst the provisions therein set forth is section eight, whereby it is declared that “ all laws and ordinances now in force and applicable to Baltimore City, not inconsistent with this Article, shall be and they are hereby continued until changed in due course of law.” Here, then, in the most formal and explicit terms, is a declaration that “all ordinances now in force * * * shall be and they are * * * continued until changed in due course of law.” The ordinance of 1866 providing for the appointment of School Commissioners by a joint convention of the two branches of the City Council was undeniably then in force; it was applicable to the city of Baltimore and to that city alone, and it rvas not inconsistent with Article eleven of the Constitution which related to Baltimore City.

Was not that ordinance, then, and the power ⁵⁷⁹ conferred by it, necessarily continuedm. force, “ until changed in due course of law?” There can be, it seems to us, but one answer to that question ; and it is, that the ordinance was incontestably continued in force, and the power it gave-was unmolested by the Constitution of 1867. If continued in force, as it certainly was, it provided, and lawfully provided, after the abrogation of the Constitution of 1864, a separate method for the appointment of School Commissioners, essentially and materially different from the method prescribed in and by the Local Code for the appointment of city officers ; and it remained as it had originally been an exception to the other or general mode. The same section of the Constitution of 1867 which continued the ordinance of 1866, not by name or number, it is true, but because it was an ordinance then in force, also continued the laws applicable to appointments generally, and, consequently, the Constitution left both systems of appointment as it found them, side by side — the one pertaining to a particular class ; the other and different one affecting distinct classes. The