Keyser v. Upshur

McSherry, C. J., delivered the opinion of the Court: Recent legislation adopted by the General Assembly of this State during the session of nineteen hundred, and relating to the police system of Baltimore City, gives rise to the pending controversy. By the Act of ipoo, ch. 15, the method of selecting Police Commissioners of Baltimore City was changed from an election by the two Houses of the General Assembly to an appointment by the Governor with the advice and con ⁷²⁸ sent of the Senate. In the oath which this Act requires the Police Commissioners to take it is declared that the commissioners shall in no case and under no pretext appoint, promote, reduce in rank or remove, any policeman or officer of police or detective or any other person under them for or on account of the political opinions or affiliations of such policeman, officer, detective or other person or for any other cause or reason than the fitness or unfitness of such person in the best judgment of said Commissioners, for the place to which he shall be appointed or from which he shall be removed. Whilst this oath cannot be prescribed under sec. 6, Art. i of the State Constitution as a qualification for holding the office of Police Commissioner, because no oath other than the one set forth in the Constitution itself can be imposed by the Legislature for such a purpose — Davidson’s case, 91 Md. 681 — still the terms of the oath may well be treated as defining some of the duties of the office.

Though a refusal to take this statutory oath would not deprive the Police Commissioner of the office if he qualified by subscribing to the oath prescribed by sec. 6, Art. 1 of the Constitution, the things which the statutory oath undertakes to require him to swear that he will do or will refrain from doing may be regarded as part of his duty when he has qualified by taking the Constitutional oath. The relevancy of these observations will become apparent when we come to the consideration of some of the questions at issue in the cause. By the Act of iyoo, ch. 16, a board of Police Examiners was created. This board is charged, amongst other things, with the duty to inquire into the mental, moral and physical fitness of all applicants for appointment to or promotion in the police force of Baltimore City.

The same board is likewise required to report to the Police Commissioners “ graded lists of those persons whom they may deem qualified for such appointment or promotion, from which graded lists -all nominations for, appointments to, or promotions in said police force shall hereafter be made ■’’ and the nominations must be made in the order in which the names of the nominees appear upon ⁷²⁹ such graded lists. By a singular omission^ sec. JfáD. is made to read that the nominations for appointment or promotion shall be made by the Police Commissioners, instead of by the Board of Police Examiners to the Board of Police Commissioners. This error is so obvious when other parts of the statute and the whole scheme and purpose of the legislation are considered that in disposing of the case before us we will read the enactment as it ought to have been written and we will supply the missing words as was done by the counsel on both sides during the oral argument.

In preparing these graded lists the Board of Examiners is required to ascertain by open competitive examinations the relative qualifications of the respective candidates for appointment or promotion, and it is also required to place the names of. the accepted candidates upon the graded lists in the order of their relative qualifications as ascertained by such competitive examinations. By sec. 4.75F, it is enacted, “that the said Board of Police Commissioners for the city of Baltimore shall confirm or reject all nominations for appointment or promotion of police-officers * * * made to it as hereinbefore provided by the Board of Police Examiners of the city of Baltimore. The said Board of Police Commissioners shall not confirm the nomination or make the appointment or promotion of any police officer * * * * whose name does not appear upon the graded lists to be furnished said Board of Police Commissioners by said Board of Police Examiners for the city of Baltimore.” Under this legislation the Board of Examiners inquired into the fitness of quite a number of applicants and a list of two hundred and ninety names of persons eligible for the grade of probationary officers arranged in the order of merit as disclosed by the examinations, was furnished by the Board of Examiners to the Board of Commissioners. The exhibits filed with the bill of complaint show that this graded list made by the examiners was in the possession of the commissioners and that it was taken up and considered by the latter.

From this list the Police Commissioners selected twenty persons to ⁷³⁰ be probationary officers, but the selections were not made in the order in which the names appeared upon the list of eligibles. The selections were made indiscriminately, that is promiscuously from the list. Thereupon the appellants who are tax-payers in the city of Baltimore and also members of an unincorporated association known as the Reform League, filed a bill of complaint in the Circuit Court of Baltimore City against the Board of Police Commissioners, in the tenth paragraph whereof it is alleged : “ That the said attempted appointment of the said twenty persons above named to the positions of probationary officers was * * * * * in violation of the requirements of said chapters 15 and 16 of the Acts of the General Assembly of 1900 * * * especially in that, among other things, the said persons so attempted to be appointed were not nominated by the Board of Police Examiners to the said Board of Commissioners, and by the latter confirmed as.is by said Act required, but the said defendants undertook to appoint them without such nominations, and that neither the nominations for such attempted appointments nor the said attempted appointments were made or undertaken to be made from said graded list in the order in which the names of the nominees appear thereon ; wherefore and for other good and sufficient reasons, * * * * your orators aver that the said attempted appointment of the said twenty persons was illegal and void,” etc. The relief prayed is that the Police Commissioners be restrained from paying to the probationary officers so appointed any salary, and' that they be required to recall and cancel the.commissions heretofore issued to these twenty officers. A pro forma order was passed refusing to grant an injunction and the plaintiffs appealed.

There are two predominant propositions in the case, and these involve in their consideration a discussion of the powers and duties of the two Boards. The two propositions for which the appellants contend are, first, that the twenty probationary officers were not nominated by the Board of Examiners to the Board of Commissioners ; and secondly, that the appointments of the twenty officers were not made by the Board of Com ⁷³¹ missioners from the graded list in the order in which the names of the nominees appear thereon, and therefore that the appointments were illegal. As we progress in the investigation of these propositions other questions mainly concerning the method of doing the things, which it is insisted were unlawfully done, will be disposed of. As heretofore observed one of the unmistakable and conceded designs of the Act of 1900, ch. 16, creating the Board of Examiners, was to require that board, in addition to the other functions assigned it, to send in nominations of eligible persons to the Police Commissioners whenever vacancies were to be filled and new appointments or promotions in the police force were to be made.

As the fundamental object of all this recent legislation was to make merit and fitness the sole qualification for service on the police force, these nominations were restricted to the list of eligibles made up by the Examiners after open competitive examinations. The Examiners are given no power to appoint to the force. They examine and pass upon the qualifications of applicants and then they nominate or name to the Commissioners such applicants as are found to possess the requisite qualifications, and they name them in the order of merit as disclosed by the examinations. But it is insisted by the appellants that the Examiners can only nominate one applicant for each vacancy or appointment, and consequently if there be twenty vacancies or twenty new appointments to be made, but twenty names can be furnished by the Examiners to the Commissioners ; and that those twenty must be the ones who stand highest on the list of eligibles.

It is true beyond question that all nominations by the Examiners must be made in the order of merit as disclosed by the examinations, but there is no provision whatever in the statute limiting the number that may be nominated at any one time. Nominating, as used in this statute does not mean “ the act or ceremony of bringing forward and submitting the name of a candidate especially for an elective office, according to certain prescribed forms but it means primarily, naming, mentioning by name. Cent. Dic. vol. 5, p. 4010; The argument ⁷³² drawn from the meaning of the term nominate as political-usage has defined it to indicate the selection of a candidate to be voted for at a popular election is not sound ; and theillus-. tration is not apposite.

No political party can nominate more than one person for an office to be filled by one incumbent because the statutes do not authorize such a bourse; and if they did the nomination of two or more persons for the same place would simply divide the vote of that party and insure the defeat of all thus named by the same organization. That consideration alone would prevent the nomination by one party of two or more persons for the same place. But there is no analogy between such a nomination and nominations by the Board of Examiners. Nominations for office involve selections of particular candidates to be voted for.

Nominations by the Examiners consist simply in naming a number of eligibles from amongst whom the Commissioners must make selections. The duties devolved upon the Examiners indicate this; Some of those duties have already been mentioned but all of them may be briefly summarized as follows : First, to prescribe, amend and enforce definite and uniform rules and regulations for carrying the statute into effect, which rules and regulations when adopted shall have the force of law ; secondly, to ascertain by open, competitive examinations the relative qualifications of every applicant for a position on the police force; thirdly, to make out graded lists of the applicants whom they may deem qualified, on which lists the names of those who are found to be qualified shall be arranged according to merit; and fourthly, they must furnish this list to the Police Commissioners and from it, either independently and by a separate act, or by it as a whole when furnished — and the statute does not prescribe which — all nominations must be made by them to the Board of Police Commissioners. - We do not doubt that under the authority to make definite and uniform rules and regulations the Police Examiners could validly prescribe that no number of names in excess of the number of places to be filled should be nominated at any one time; but this has not been done. If this be a matter which ⁷³³ may be regulated by a rule of their own adoption — and it clearly is — it is because the statute, as rightly interpreted, is silent on the subject; and if the statute is silent on the subject — as it is — then, it cannot be said that the contrary course, that is, the nomination of more persons than there are vacancies to be filled or appointments to be made, is a method of nomination prohibited by the statute. We are dealing not with what the Examiners did, but with what they had the power to do.

Now, there are but two ways in which the Examiners could make nominations to the Commissioners; and these are either by naming the precise number required to fill existing vacancies or to make new appointments, or by furnishing more than the identical number. In both instances all names nominated must be on the list of eligibles ; and in both instances the names must be from the graded list and in the order in which they appear upon that list; but which of the two methods should be pursued is left by the statute to the judgment and discretion of the Examiners as they may see fit to prescribe by rule or regulation, and in the absence of a rule or regulation in such way as they may elect. They have apparently adopted no rule prohibiting themselves from nominating more persons than are necessary to fill vacancies orto make new appointments and as the nomination of more than the precise number, required is one of the two methods open to them, their act, when they nominated two hundred and ninety persons, though only twenty appointments were to be made, was, if they made any nominations at all, neither unlawful nor unwarranted. The fallacy, which the contention of the appellant contains, consists in the assumption that not more than one person can be nominated for one vacancy or one new appointment and that consequently the Examiners are restricted in making nominations to the Commissioners to the naming of the precise number of persons required to fill existing vacancies or to make new appointments.

If this assumption were well-founded it would follow, of course, that the nomination of two hundred and ninety persons to fill twenty places would be irregular and unlawful. But the assumption is untenable — the postulate is ⁷³⁴ erroneous — as has been pointed out, and the reasoning founded upon it, though logical and accurate, cannot lead to a correct conclusion. Having considered what the Board of Examiners had the power to do, what in fact did they do? As shown by Exhibit F, filed with