MacLellan v. Marine

McSherry, C. J., delivered the opinion of the Court. This is an application for a writ of mandamus. The facts are few and are as follows: In February, 1900, the appellant, Arthur R. MacLellan, was appointed by Mayor Hayes one of the Commissioners for Opening Streets in the city of Baltimore. The term for which he was appointed was three years, beginning on March the first, 1900.

In February, 1903, Mayor Hayes re-appointed the appellant for a second term of three years, but on July 27th, 1903, Mayor McLane, who succeeded Mayor Hayes, removed the appellant and two days, later commissioned James H. Marine, the appellee, to fill .the vacancy caused by the removal of Mr. MacLellan. After qualifying Mr. Marine demanded possession of the office but Mr. MacLellan refused to surrender it. Thereupon Mr. Marine filed a petition in the Superior Court praying that a writ of mandamus might issue commanding Mr. MacLellan to vacate the office. The petition was duly answered.

Issue was joined ⁵⁵ on some of the paragraphs of the answer and others were demurred to. A brief agreed statement of facts was signed and the case was heard. The demurrer was sustained and a peremptory writ of mandamus was awarded. From that order Mr. MacLellan has appealed.

The removal of the appellant by Mayor McLane was summary and without notice or a hearing. The single question in the case is whether Mayor McLane had authority to make the removal in the summary way he did. The office of Commissioner for Opening Streets was created or at least continued by the Charter of Baltimore City. Section 172 of the Charter fixes the duration of the term of office at three years and provides that the commissioners shall be appointed by the Mayor in the manner prescribed in section 25 of the Charter and shall be removable as therein provided.

Section 25 enacts “That the Mayor shall have the sole power of appointment of all heads of departments, heads of sub-departments, municipal officers not embraced in a department, and all special commissioners of roads, except as otherwise provided in this article, subject to confirmation by a majority vote of all the members elected to the Second Branch of the City Council. * * * The Mayor shall have the power to remove at pleasure, during the first six months of their respective terms, the heads of all departments or members thereof, heads of sub-departments or members thereof, municipal officers not embraced in a department, and special commissioners or boards, or members thereof, appointed by him, but after six months the Mayor shall only remove said officials for cause, after charges preferred against them, notice given and trial had before the Mayor.” It is perfectly obvious that every appointee of the Mayor takes office subject to the terms of the section just quoted. In accepting an appointment the appointee in effect and in fact agrees that he may be summarily dismissed at any time during the first six months of his term at the mere pleasure ot the Mayor. In view of the explicit provision of the Charter if applicable ⁵⁶ to the case at bar all discussion as to whether the removal of the appellant was in violation of the Federal Constitution is necessarily eliminated. But it is insisted first that this summary power of removal' can only be exercised by the Mayor— the same individual—who made the appointment; and, secondly, that when an officer has been re-appointed for a second term the power of summary removal does not attach to the second term at all.

The controversy is thus narrowed down to these two contentions and both of them depend on the reading to be given section 25 of the City Charter. The first contention, namely, that the power of removal at pleasure during the first six months of the term is lodged solely with the Mayor who made the appointment, is founded exclusively upon the use of the personal pronoun “him” instead of the word “mayor” in the section we have heretofore quoted. Dropping out the intervening words and reducing the sentence so as to present the precise question sharply, the section will read: “The Mayor shall have the power to remove at pleasure during the first six months of their respective terms” all officers, “appointed by him." It must be borne in mind that all municipal officers are not appointed by the Mayor; and it was clearly not the design of the Legislature to confer on the Mayor a summary power to remove