Lilly v. Jones

Pattison, J., delivered the opinion of the Court. On the 1st day of March, 1929, the appellants, William D. Lilly and William Bauernschmidt, voters and tax payers of Baltimore City, filed their petition in the Baltimore City Court against the appellee, Harry C. Jones, at that time serving, under appointment by the Mayor, as a member of both the Baltimore City Service Commission and the Port Development Commission, of Baltimore City, asking that a mandamus be issued directed to the appellee, commanding him to vacate the office of member of the City Service Commission and to cease from exercising the functions of that office. The petition alleged that section 203A of the Charter of Baltimore City provides that the Mayor shall appoint, in the manner prescribed by section 25 of the Charter, three persons who shall constitute the City Service Commission of Baltimore, and that such appointment “shall be made from persons friendly to the merit system of appointment to office, and shall be so made that not more than two commissioners shall be members of the same political party”; and by section 203B it is provided that all of said commissioners shall serve without pay. That sections 2030 to 203Q, both inclusive, of said Charter “confer extensive powers and impose important duties upon the three members of the City Service Commission.

Under said sections, with exceptions not here material to be stated, said three commissioners are required to classify all municipal offices and positions in the City of Baltimore to which appointments are made by any person or persons ²⁶² (other than the Mayor or the City Council) who are, or may be clothed by this Charter or any law or ordinance relating to Baltimore City with the power of making’ appointments, which offices and places so classified shall constitute the classified city service of Baltimore, and no appointment to any such offices or places shall be made except under the rules of the commission. The commission is empowered to hold examinations and tests to determine the fitness of the applicants for positions in the classified city service, and the appointing authorities are forbidden to appoint to any office or place under the city government anyone who has not been certified by the said commission as having passed the examinations or tests prescribed by it. Further provisions are made restricting the power of the appointing officer in respect of the discharge of his appointees. The substance of the aforesaid provisions of the Charter is to provide a merit system of appointment for the City of Baltimore, and to place the same under the supervision and control of said commission, so that (with exceptions not here material) no persons are eligible for appointment to office or places in the City of Baltimore unless and until such persons have been certified as eligible by said commission.” The petition then alleged that Harry C. Jones was appointed to the office of City Service Commissioner and on February, 1926, he qualified and assumed the duties of the office thereunder, which duties he, at the time of the filing of the bill, was performing as president of said commission.

It is thereafter alleged in the petition that, pursuant to the authority conferred upon him by chapter 560 of the Acts of 1920, Ordinance 877 of the Mayor and City Council of the City of Baltimore, approved July 2nd, 1920, exercised in the manner prescribed by section 25 of the Charter, the Mayor appointed the defendant, Harry 0. Jones, a member of the Port Development Commission of the City of Baltimore, and on September 27th, 1927, he qualified as a member of that commission by taking the required oath before the Mayor. The compensation to be received by him, as such commissioner, was by the authority of said ordinance ‘fixed ²⁶³ from year to year by tbe ordinance of estimates at $1,500 per annum, and this amount he was receiving at the time of the filing of the petition. As alleged by the petition, the Port Development Commission “is authorized and empowered to ‘appoint or employ professional or technical advisers or experts, including architects and engineers, and such agents, assistants, clerks, employees and laborers, skilled and unskilled’ and to fix and change from time to time, subject to the approval of the Board of Estimates, their respective compensations.

Said ordinance further provides (paragraph 5) ‘The commission hereby created shall exercise the powers hereby conferred so as to be consistent with the provisions of the charter of Baltimore City, as now constituted or as it may be hereafter amended.’ ” Upon the facts stated, it is alleged in the petition that Harry C. Jones, defendant, is now wrongfully holding and assuming to exercise the office of member of the City Service Commission, first, because that office is incompatible at common law with the office of member of the Port Development Commission, which he is now holding and exercising the duties thereof; and, second, because of his alleged ineligibility to the office of City Service Commissioner tinder the provisions of section 203A and 203B of the City Charter, which provides that “no one holding any public office of profit shall be appointed such commissioner” and that “all of said commissioners shall serve without pay.” The allegation is then made that, in consequence of the incompatibility of the two offices, as well as the aforesaid provisions of the City Charter, Harry C. Jones, upon his appointment and qualification as a member of the Port Development Commission of Baltimore City, ipso facto vacated the office of member of the City Service Commission and he should now cease to perform the functions thereof, but he refuses to do so, and is now undertaking to perform such functions. A demurrer was filed to the petition, which was heard and overruled by the learned court below. Upon the overruling of the demurrer to the petition, the defendant filed his answer thereto, in which none of the material facts alleged in ²⁶⁴ the petition are denied. The only denials found therein are to the alleged inferences drawn from such facts.

It is, however, stated ip the answer that “the defendant denies that the Port Development Commission of the City of Baltimore has in its employ any professional, or technical advisers or experts, architects, engineers, or other1 agents, clerks, associates, or any employees whatsoever; and the defendant denies that the said Port Development Commission of Baltimore has, at any time since its creation, ever appointed or employed a single employee, and he further avers that to the best of his knowledge, said Port Development Commission does not contemplate the appointment or employment of any person whatsoever, either now or at any future time.” A reading of the petition will disclose that nowhere in it is there any allegation that the Port Development Commission had in its employ any of those persons mentioned in the above stated denial of the defendant. The petition only alleged, in the language of the Charter, the right and power of the commission to employ such persons. The answer assails the motives of the petitioners in filing their petition. In addition thereto-, the answer alleges that the defendant, upon his appointment as a member of the Port Development Commission, tendered his resignation to the Mayor, and “thereupon, numerous individuals and organizations interested in the merit system in Baltimore City-petitioned the Mayor not to accept said resignation, but to retain him as a member of the City Service Commission, notwithstanding his appointment as a member of the Port Development Commission, and agreeably to- the wishes of said persons and organizations, the Mayor has declined and still declines to accept said resignation, and the defendant has continued to serve as City Service Commissioner and to- discharge his duties as such, at a personal sacrifice of time and labor and solely out of a sense of duty, and at the request of the Mayor and others friendly to the merit system.” The answer then speaks of the high qualification of the defendant for the -performance of the duties which devolve ²⁶⁵ upon r member of tbe City Service Commission, and the loss to the city should he be required to vacate that office.

The plaintiff's demurred to the answer and this demurrer was overruled by the court below. It is from that order overruling the demurrer to the answer that the appeal in this case was taken. The first question involved in this appeal is: Are the offices of member of the City Service Commission and member of the Port Development Commission, of Baltimore City, incompatible at common law? It is the well settled rule of the common law that a person cannot, at one and the same time, rightfully hold two offices which are incompatible, and thus, when he accepts appointment to the second office, where this incompatibility exists, and qualifies, he vacates, or by implication resigns, the first office. 7 Bacons Abridgment (Bouvier’s Ed.), title Office and Officers, page 313; Rex v. Tizzard, 9 B. & C. 418; People v. Carrique, 2 Hill (N. Y.), 93; Van Orsdall v. Hazard, 3 Hill (N. Y.), 243; Stubbs v. Lee, 64 Me. 195 ; Gaw v. Ashley, 195 Mass. 173 ; Moreland v. Common Council of Detroit, 112 Mich. 105 , 27 L. R. A. 211; State v. Goff, 15 R. I. 505; Magie v. Stoddard, 25 Conn. 565 ; People v. Nostrand, 46 N. Y. 375 .

The courts, because of the difficulty in laying down any clear and comprehensive rule as to what constitutes incompatibility of offices, have evaded the formulation of any definition, and as a rule have contented themselves with the discussion of the facts of the case under consideration, in connection with similar and analogous facts in other cases, where a decision has been reached upon the question of incompatibility; but while the courts have evaded announcing any general definition as to what constitutes incompatibility of offices, they have suggested certain tests to be applied to the facts of each case, in determining whether the facts therein create incompatibility in the offices there- involved. In State v. Goff, 15 R. I. 505, and quoted with approval in Moreland v. Detroit Common Council, supra, it is said: ²⁶⁶ “The test of incompatibility is the character and relation of the offices; as where one is subordinate to the other, and subject in some degree to its revisory power; or where the functions of the two offices are inherently inconsistent and repugnant. In such cases it has uniformly been held that the same person cannot hold both offices.” See Rex. v. Pateman, 2 Term Report, 777. And as stated in 22 B. G. L., par. 56, 414: “One of the most important tests as to- whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some, of its important and principal duties, or is subject to supervision by the other, or where a contrariety and antagonism would result in the attempt by one person to discharge the duties of both”; and, as again stated in State ex rel.

Clawson v. Thompson, 20 N. J. L. 689 : “Where there is no express provision, the true test is, .whether the two offices are compatible in their natures in the rights, duties or obligations connected with or flowing out of them”; or, as said by Bacon, “Offices are said to be incompatible and inconsistent, so as to be executed by the same person * * * when their being subordinate and interfering with each other, it induces a presumption they cannot be executed with impartiality and honesty.” 7 Bacon's Abridgment, 363; Rex v. Tizzard, supra; Howard v. Harrington, 114 Me. 443 , L. R. A. 1917A, 211, and notes thereunder. Applying these tests to the facts alleged in the petition of the appellant, we cannot escape the conclusion that the offices involved therein are incompatible. The powers and duties of the Port Development Commission in the matter of appointments are subject to the supervisory powers of the City Service Commission, and to permit one person to. exercise the powers of both commissions would not only allow him to exercise powers that are inconsistent, but would defeat the very object and purpose- of the creation of the City Service Commission. As so well