Mayor of Baltimore v. First Methodist Episcopal Church

Thomas, J., delivered the opinion of the Court. This appeal is from an order of the Baltimore City Court quashing the proceedings of the Highways Engineer and the Appeal Tax Court of Baltimore City, in which the appellee was assessed with the cost of repaving the sidewalk in front of its property, etc. The ground of the motion to quash and of the order appealed from was that Ordinance No. 266, in pursuance of which the assessment was made, was not passed by the City Council and was not a valid ordinance of the Mayor and City Council of Baltimore. At the hearing of the motion to quash, the appellee, the appellant in the Court below, produced O. Charles Fried el, Chief Clerk of the Second Branch of the City Council, and also produced certified copies of the journals of the two branches of the City Council, from which it appears that the ordinance in question, Ordinance Ho. 266, was introduced in the Second Brandi as Ordinance S. B. No.. 149 on March 19th, 1917, and was referred to the Joint Standing Committee on Highways. It also appears from the journals that after a favorable report by that committee the ordinance was read the first time on April 30th, 1917, and on May 7th, 1917, it was read the second time and ordered to be engrossed for its third reading.

On May 14th, 1917, it was read the third time and passed, the vote being taken “by yeas and nays” and the names of members voting entered upon the journal. It was then sent to the First Branch, where it was read the first time on May 14th, and the second time on May 21st, 1917. When it was taken up in the First Branch for its third reading, on May 24th, two amendments were proposed and adopted, and the ordinance, with the amendments, was then read the third time and passed by a yea and nay ⁵⁹⁵ vote. On the same day it was returned to the Second Branch, with a message stating that the “accompanying” amendments had been made, setting out the amendments and stating how they should he inserted in the ordinance.

The journal of the Second Branch also stated that on the 24th of May, 1917, the “President laid before the Branch the Second Branch ordinance (S. B. Ho. 149),” with the message from the First Branch, and that on motion of Mr. Mahon the amendments made by the First Branch were adopted by a yea and nay vote. In addition to the journals, the appellee offered in evidence two other ordinances, Ordinance F. B. Ho. 374 and Ordinance F. B. Ho. 375, the entries in the journals showing that they had been passed by the City Council and the message of the Mayor giving his reasons for not approving tiie same. One of these ordinances was an ordinance to repeal Ordinance Ho. 266, and the other was an ordinance which recited in its preamble that the amendments offered to Ordinance Ho. 266 had been erroneously omitted, and which contained the provisions of Ordinance Ho. 266, as amended. The appellee also offered in evidence the original Ordinance S. B. 149 and the engrossed Ordinance Ho. 266, which was approved by the Mayor.

They wore in the custody of the City Register and were produced by him. The engrossed ordinance, which is in the “exact language” of the original, bears the following endorsements: “Introduced, title read and referred to J. S. 0.—0. O. Friedel, Chief Clerk” (I. S. O. meaning Joint Standing Committee on Highways) ; “In Second Branch, April 30, 1917, read first time and laid over under the rule”: “In Second Branch, May 7, 1917, taken up, read second time and ordered to he engrossed, by order, C. O. Friedel, Chief Clerk”; “May 14, 1917, taken up, read third time and passed, by order, O. C. Friedel, Chief Clerk” ; “In First Branch, May 14, 1917, read and laid over under the rule, by order, Gilbert A. Hailey, Clerk”; “In First Branch, May 21, 1917, taken up, read second time and laid ever under the rule, by order, Gilbert A. Hailey, Clerk”; “In ⁵⁹⁶ First Branch, May 24, 1917, taken up, read third, time and passed, by order, Gilbert A. Dailey, Clerk”; “Examined and found correct by Committee on Enrollment,” signed by the Committee on Enrollment, an¿ also signed by the Presidents of the two branches of the City Council. There was attached tc it the following’ certificates: “Second Branch Ordinance S. B. 149. “I hereby certify that Ordinance S. B. Ho. 149 was duly passed in accordance with the requirements of the City Charter, as will be seen by reference to the following entries: “Second Branch. “First Beading, date April 30, 1917; Second Branch Journal, pages 575-578. “Second Beading, date May 7, 1917; Second Branch Journal, page 595. “Third Beading date May 14, 1917; Second Branch Journal, pages 603-604. “First Branch. “First Beading, dated May 14, 1917; First Branch Journal, page 768. “Second Beading, date May 21, 1917; First Branch Journal, page 779. . “Third Beading, date May 24, 1917; First Branch Journal, page “Bemarks. “I also certify that the above-mentioned ordinance was passed by a majority of all the members elected to each Branch, and that on its final passage, the vote was taken by yeas and nays, the names of members voting for and against same being 'entered in the respective journals.

The said ordinance was not read the third time in either Branch until it had first been' actually engrossed for its third reading. “(Signed) O. Chas. Friedel, “Chief Clerk. “The proper steps appear to have been taken in the passage of this ordinance, and there is no legal reason why it should not be approved. “(Signed) S. S. Field, “City Solicitor.” ⁵⁹⁷ Tlie engrossed ordinance also bears, tlie following subsequent endorsements: “Presented to liis Honor the Mayor this 28th day of May 1917—C. C. Friedel, Chief Clerk, Second Branch City Council,” and “Approved June 13, 1917— James H. Preston, Mayor.” Mr. Friedel testified that the first, two endorsements on the engrossed ordinance were taken from the original ordinance, on which, they appear, and that the original ordinance is sent with the engrossed copy to the Mayor “and filed away”; that the endorsements on the engrossed ordinance by the Clerk of tlie Second Branch were stamped by him, but that the part of the endorsements in writing and his name to the certificate attached thereto were written by Horval H. King, Heading Clerk of the Second Branch, who was authorized to do so in accordance witli the custom; that after an ordinance “leaves the Chief Clerk it is given to the Enrolling Committee, consisting of the Heading Clerks of the two branches, and they must verify all ordinances, and that ‘when one comes hack’ it is up to the Enrolling Committee; that it was the duty of Korval H. King to have re-engrossed the ordinance with the amendments.” On cross-examination he stated that he recognized the writing of Gilbert A. Dailey and the endoresmeáts made by bim; that tlie word “Passed” was written by Dailey; that after an ordinance comes back to the Second Branch it goes to the Enrolling Committee; that the endorsement on the engrossed bill, “Examined and found correct by Enrolling Committee,” was signed by Andrew J. Preller and Horval H. King, who constituted the Enrolling Committee; that it was also signed by tlie Presidents of the two branches; that the endorsement “Approved Juno 13, 1917,” was signed by the Mayor; that the certificate purporting to he signed by the City Solicitor was signed by the City Solicitor, and “that all steps in the ordinance are in accordance with the regular procedure.” Counsel for the appellees objected to the introduction of the journals and to the oral evidence offered to contradict- the “ordinance, as presented to the Court,” and to the introduction of the two other ordinances mentioned, and the entries ⁵⁹⁸ in the journals relating thereto, and the second, third and fourth exceptions are to the rulings of the Court below admitting such evidence. The fifth exception is to the order of the Court below quashing the proceedings of the Highways Engineer and the Appeal Tax Court. Section 221 of the Charter of Baltimore City’(Weeks’s Edition) provides: “Every legislative act of the Mayor and City Council of Baltimore shall be by ordinance or resolution.

Ho ordinance or resolution shall be passed except by a vote of' a majority of all the members elected to each Branch, and on its final passage the vote shall be taken by yeas and nays, the names of members voting for and against the same being entered on the journal. Every ordinance enacted by the city shall embrace but one subject, which shall be described in its title, and no ordinance shall be revived, amended, or rb-enacted' by mere reference to its title, but the same shall be set forth at length, as in the original ordinance. And no ordinance shall become effective until it be read on three different days of the session in each Branch, unless all the members elected to the Branch where such ordinance is pending shall so determine by yeas and nays, to be recorded on the journal, and no ordinance shall be read a third time until it shall have been actually engrossed for a third reading.” Section 23 of the Charter, which provides for the authentication of ordinances, is as follows: “All ordinances or resolutions duly passed by the City Council, after being properly certified by the Presidents of the Eirst.and Second Branches of the City Council as having been so passed, shall be delivered by the Clerk of the Branch in which the same originated, to the Mayor for his approval, and there shall be noted on said ordinances or resolutions the date of said delivery; and, when approved by him, they shall become ordinances or resolutions of the Mayor and City Council of Baltimore,” etc. ⁵⁹⁹ Tlio contention of the appellants are: (1) that as the engrossed ordinance offered in evidence, and the endorsements thereon, show that, the ordinance was passed by the (Tty Conncil and was duly authenticated in accordance with the (Tty Charter, the journals and other evidence produced by the appellee wore not admissible for the purpose of impcaching the ordinance; and (2) that even if the evidence was admissible, it was not sufficient to overcome the presumption arising from the endorsements on the engrossed copy and the due authentication of the ordinance. The contention of the appellee, on the other hand, is that the journals and other evidence produced by it clearly and satisfactorily show that Ordinance No. 266 was never passed by the City Council.

Ordinances F. B. No. 374 and F. B. No. 375, and the entries in the journals relating thereto, were clearly inadmissible. Those ordinances were never approved by the Mayor and never became ordinances, of the Mayor and City Council of Baltimore. Baltimore City v. Gorter, 93 Md. 8 . The recital in