Mayor of Baltimore v. Gorter

Jones, J., delivered the opinion of the Court. This case brings before this Court for construction certain features of the present Charter of the City of Baltimore. This Charter is the scheme of municipal government provided for the City by the Act of Assembly of 1898, chapter 123. Prior to this Act, Article 4 of the Code of Public Local Laws, title, “City of Baltimore,” contained the body of laws which prescribed and regulated the powers possessed by the City for the purposes of its government as a public municipal corporation.

The Constitution of the State, Article 11, recognizes the City as a municipality, and, for its purposes as such, provides for the constitution of a Mayor and Common Council as governing agencies. In section 7 of this Article the City is prohibited from creating any debt except under the conditions therein prescribed. “All laws and ordinances,” then in force applicable to the City, and “not inconsistent with this Article,” are continued in force “until changed in due course of law.” The Article then concludes with a section which is as follows : “The General Assembly may make such changes in this Article, except in section seventh thereof, as it may deem best; and this Article shall not be so construed, or taken, as to make the political corporation of Baltimore independent of, or free from the control which, the General Assembly of Maryland has over all such corporations in this State.” As respects constitutional restriction, therefore, our Legislature is ⁶ left free, with the single exception named, as to its control over the public Corporation whose powers are here the subject of judicial scrutiny—as much so as it is with respect to all corporations existing for like purposes in the State. The full and ample powers possessed by the Legislature over public corporations created and existing as agencies of government have repeatedly been declared by judicial decision. The effect of these, it is believed, is well stated by Chief Justice LeGrand, in the course of his opinion in the case of Mayor & C. C. of Balto. v. State ex rel. of Board of Police, 15 Md. at page 491, where he says : “Under the Constitution of Maryland the City of Baltimore is recognized as a public corporation, established for public purposes, and in this character it is in no wise distinguished from that of the several counties; and except in so far as may be forbidden by the Constitution, like them it is liable to the control of the Legislature.

Were this not so, civil government would be an impossibility, because of conflicting claims to the supreme power urged by the different geographical departments into which the State is separated. The power * * * which creates, can revise, modify, annihilate; it can change, not only the limit, but the nature of the power, and also the depository of it.” We are not confronted in this case with any constitutional question. We understand the power of the Legislature as affecting any question we are to decide is not called in question ; and what has been said merely evolves the initial proposition lying at the base of the inquiry we are called upon to make. This is that in pursuing this inquiry the will of the Legislature, as it may be found expressed or as indicated by fair and proper inference, is to be the dominating factor in determining the meaning and effect of its work or any part of it, in conferring the chartered powers that the Court is called upon to construe.

In construing these powers and determining their extent and effect, reference must be had not only to the grant of power, but to the restrictions and limitations that may be found imposed upon its exercise; for the restrictions and limitations imposed are as much the expression of the legislative ⁷ will as is the grant of power. The power actually possessed, however general the terms in which it may be granted, standing alone, may be, is that which will appear when read in the light of, and subjected to, the limitations intended to abridge and control it. These general observations express the rule by which the powers of the corporation are to be construed when it is considered in its aggregate capacity. The rule applies with the same force in the construction of power conferred upon any one of its constituent parts or upon any of the agencies provided for the execution of its purposes.

The Charter in question, provided by the Act of 1898, creates “ The inhabitants of the City of Baltimore,” a corporation, “ by the name of the ‘Mayor and City Council of Baltimore.’ ” In section 6 of the Charter, “The Mayor and City Council of Baltimore” are clothed with numerous powers—among them the power “to levy annually upon the assessable property of the City, by direct tax, with full power to provide by ordinance for collection of the same, such sum of money as may be necessary, in its judgment, for the purpose of defraying the expenses of said city over and exclusive of all expenses, charges and sums of money which it is, or shall be, required by law to collect for other purposes subject to the provisions and limitations herein contained.” This power is conferred upon the corporation as a whole, and not upon anyone constituent part or any department thereof; and it is to be exercised by the corporation acting through all the corporate agencies that under the law of its being are concerned with duties in regard to it. It was in the attempted exercise of this power that the conditions transpired out of which arise the questions now presented for determination here. These conditions are due to the conflicting claims as to their respective powers and duties in respect to levying the necessary taxes for the purposes indicated in the quotation from section 6 of the Charter, between the Department of the City government denominated in the Charter as the City Council and the body denominated therein as “The Board of Estimates.” This brings us to an inquiry into these respective powers and duties. The Charter ⁸ provides that the Legislative Department of the City government “shall be vested in the City Council which shall consist of two branches, one of which shall be the First Branch, and the other the Second Branch.” .

It then provides for the election of the respective branches by the people and for their organization into legislative bodies, (secs. 209 to 222 inclusive of the Charter.) Section 218 provides that “The Mayor and City Council of Baltimore shall have power to pass all ordinances necessary to give effect and operation to all powers vested in the Corporation of the City of Baltimore.” It may be conceded that the City Council, being the Department of the City government nearest to the source of power, was intended -to be the chief depository of power ; yet, as has been seen, this power must be taken as subject to the limitations and restrictions imposed by the law which brings the corporation of which it is but an agency, into being. Its chief function is municipal legislation in the way of passing ordinances for the various purposes of municipal government. It appears, however, from section 218 just quoted, that the power to pass ordinances is not the function of the City Council as a separate and distinct department of the City government, but it is the corporation “ The Mayor and City Council of Baltimore” that “shall have power to pass all ordinances,” &c. These ordinances, therefore, are to reflect the power of all the corporate agencies that may be found to be charged with a duty in regard to their origination, their subject-matter, or the character and form that are to be given to them when being formulated into law; As laws, they must express the will of the entire corporation.

A Mayor to be elected by the people is, under the Charter in question, the chief executive officer of the Corporation and the executive power of the municipality is vested in the “Mayor, the departments, sub-departments, municipal officers not embraced in a department * * and such special commissioners or boards” as may be provided for by laws and ordinances not inconsistent with the Charter. Among the departments created in this distribution of executive power is the “Department of Finances,” one of the ⁹ sub-departments of which is a “Board of Estimates,” composed of the Mayor, City Solicitor, Comptroller, President of the Second Branch City Council and President of the Board of Public Improvements, which officers fill the positions of highest dignity and responsibility known to the City government. The powers and duties of the Board of Estimates are in the main defined in sections 36 to 40, inclusive, of the Charter. It is empowered to summon before it at any time, the heads of departments and sub-departments, and all municipal officers and special commissions or boards, and is required annually between the first days of October and November, to-meet and by affirmative vote of a majority of all the members,, make out three lists of moneys to be appropriated by the City Council for the next ensuing fiscal year.

The first list to include the amounts estimated to be required to pay the expenses, of conducting the public business for the next ensuing fiscal year, prepared in such detail as to the aggregate sum and the items thereof as the Board shall deem advisable. The estimates to “specify, in detail, the objects thereof, and the items required for the expenses of the City Council, and the respective departments, sub-departments, municipal offices not embraced in a department, and special commissions or boards * * * including a statement of each of the salaries of the members of the City Council and its officers and clerks, and the salaries of the deputies, assistants, clerks/ employees and subordinates in each department, sub-department, municipal office or special commission or board.” And to enable the Board to make this list, the Presidents of the two Branches of the City Council, the heads of departments, and sub-departments, municipal officers and special commissions and boards are required to send to the Board of Estimates in writing, at least thirty days before the list is required to be made, estimates of the amounts needed for the conduct of their respective departments or offices for the next ensuing fiscal year veriified by oath or affirmation. The second list is to contain “all amounts to be appropriated by the City Council for new improvements to be con ¹⁰ structed by any department of the City during the next ensuing fiscal year” and to be known “as the estimates for new improvements and to enable this list to be made up, heads of departments and sub-departments, municipal officers, special commissions and boards are required to file in writing with the Board of Estimates, thirty days before the time such list is required to be made, “their recommendations as to the amounts which they may consider will be needed in their respective departments for new improvements during the next fiscal year.” The third list is to contain “all amounts which by previous laws, ordinances or contracts are required to be annually appropriated to charities, educational, benevolent or reformatory institutions by the City, as well as all other sums, if any, which may be required by laws or ordinances to be appropriated for other purposes, not embraced in the preceding lists.” It is declared to be “the purpose and object” of the provision requiring these lists to be so made up that they “shall embrace all moneys to be expended for the next ensuing fiscal year for all purposes, by the City.” After these lists are prepared the Board of Estimates is required to “cause to be prepared a draft of an ordinance to be submitted to the City Council, providing appropriations sufficient to meet the amounts called for by said three lists ;” and after making publication of the same for two days to send “a copy of the draft of said proposed ordinance to the President of each Branch of the City Council.” The Mayor is then required to call a special meeting of the City Council forthwith to consider the “proposed ordinanceand it is made “the duty of the two Branches of the City Council, when so assembled, to consider and investigate the estimates contained in said proposed ordinance, and to hold daily sessions for its consideration until said ordinance is passed. ” The two Branches of the City Council, by a majority vote of all the members elected to each Branch are authorized to reduce the amounts fixed by the Board of Estimates in the proposed ordinance, except such items as are fixed by law, such as are inserted to pay State taxes and. such as are intended to pay the interest ¹¹ and principal of the municipal debt; but, it is provided they shall not have the power to increase the amoimts fixed by the “Board of Estimates,” “nor to insert any new items in the proposed ordinances.” When this proposed ordinance has been passed “by both Branches of the City Council and approved by the Mayor,” it is to be known as the “Ordinance of Estimates” for the year for which the appropriations provided for therein are intended ; and the sums therein appropriated “after the beginning of the next ensuing fiscal year,” are to “become appropriated” and available “for the several purposes therein named, to be used by the City Council, departments, sub-departments, municipal officers not embraced in a department, and special commissions or boards therein named and for no other purpose or uses whatever.” The City Council is expressly denied the power ‘ ‘to enlarge any item contained” in this ordinance, after it is passed, “by any other or subsequent ordinance or resolution.” It is also provided that the City Council shall not “by any subsequent ordinance or otherwise, appropriate any sums of money to be used for the next ensuing fiscal year, for any of the purposes embraced in “the Ordinance of Estimates ; and that no appropriation provided for in this ordinance” shall be diverted or used under any circumstances for any other purpose than that named in the Ordinance of.Estimates ; and that “no temporary loans shall be authorized or made, to pay any deficiency arising from a failure to realize sufficient income from revenue and taxation to meet the amounts provided for in said ordinance.” In case there is a deficiency, it is provided there shall be a pro rata abatement of all appropriations with certain exceptions ; and in case there is a surplus of revenue over •expenditures, such surplus is to “be passed to the.Commissioners of Finance to be credited to the general sinkingfund,” (sec. 36). The Board of Estimates is given entire control over the grant by the Mayor and City Council of any “franchise or right to use any street, avenue, alley, or highway * * or right for the use of any public property” belonging to the ¹² City.

The proposed grant of any such right is to be in the form of an ordinance which, after having been intrbduaad into the City Council, is to be referred to the Board of Estimates which is to “make diligent inquiry as to the money value of the franchises or right proposed to be granted and the adequacy of the proposed compensation to be paid therefor to the Cityand the Board is charged with the duty to fix in the ordinance the compensation to be paid for the grant at the largest amount that can be obtained, &c.; and the grant shall not be made by the City Council except for the compensation and on the terms approved by the Board of Estimates in the manner prescribed in the charter. The like provision is made to apply to any renewal or extension of any right relating to the use of the public property (sec. 37). The Board of Estimates is required to include annually in the “Ordinance of Estimates,” “the sum of fifty thousand dollars to be used as a contingent fund” by the Board under regulations prescribed; and “the City Council shall not have the power to increase or decrease, or strike out said amount from the said Ordinance of Estimates” (sec. 38). The Mayor and City Council are prohibited from appropriating any money “for the payment of any private ■ claim against the City, unless such claim shall have first been presented to the Board of Estimates, together with the proofs upon which the same -is founded, and reported favorably by said Board” (sec. 39).

The Board of Estimates are further charged with the duty to procure, on the first day of October in each year or as soon thereafter as practicable, from the proper municipal department, and to “send with the Ordinance of Estimates, to both Branches of the City Council a report showing the taxable basis for the next ensuing fiscal year, and the amount which can reasonably be expected to be realized by taxation for said year. ” This report is to be made up to show the difference between the income that can reasonably be expected to be received by the City for the next ensuing fiscal year from licenses, fees, rents, and all other charges, including the amount believed to be collectible from taxes in arrear, and the anticipated expen ¹³ ditures during such year; and “shall state a rate for the levy of taxes sufficient to realize the amount required to meet the said differences.” It is then provided that “in the ordinance making the annual levy of taxes, which ordinance shall be passed by the Mayor and City Council of Baltimore, in the month of November in each year, and as soon as practicable after the passage of the Ordinance of Estimates, the Mayor and City Council of Baltimore shall fix a rate of taxation not less than the rate stated in the aforesaid report; so that it shall not be necessary at any time for the City, its officers or agents, to create a floating debt to meet any deficiency, and it shall not be lawful for the City, its officers or agents, to create a floating debt for any purpose” (sec. 40). Again in section 85 of the Charter (w.hich is. here referred to only in the way of illustration) it is provided that when any ordinance for a public improvement, not included in the Ordinance of Estimates, exceeding in cost the sum of two thousand dollars, has passed its first reading in the Branch of the City Council in which it originates, it is to be first referred to the Board of Public Improvements as to its advisability and the needs of the City for such an improvement, and then referred by that board with its opinion in writing attached to the ordinance, “to the Board of Estimates for its opinion in writing as to the probable cost, and whether the financial condition of the City will justify such an expenditure and further action is forbidden to be taken by the City Council in regard to said ordinance until these reports shall have been made to both Branches of the City Council and entered on their respective journals. From this general review of the powers and duties, under the charter here in question, of the City Council and the Board of Estimates, the two agencies of City government with which we are here concerned, it is quite obvious that it was the intention of the charter that the Board of Estimates should have a very important and controlling influence in operating the financial department of the City government. The amount of official influence and responsibility brought together in its make up; the nature of the duties assigned to it; the clear and ¹⁴ emphatic negation of power to the legislative department that might be inconsistent with, or might embarrass the exercise of functions assigned to it, are considerations that go to make this manifest.

The evident object of the Board' of Estimates, as a feature of the Charter was to provide a more orderly administration of the finances of the City, to secure more deliberate and careful judgment as to expenditure of the public: money, and greater watchfulness aver, and economy in making this expenditure; thereby avoiding, as far as practicable,, unnecessary taxation and the accumulation of debt by reason of unsytematic methods. This being sa, the powers of such an ageney in a system of municipal government are not to receive at the hands of the Courts a narrow or illiberal construction ; but rather one that will tend to advance the purpose of its creation. It is not meant by this that the Courts are to. determine any question of construction according to. their notions of the wisdom or expediency of the means adopted' to. secure the purpose, or of the policy that dictated their adoption. These are considerations that are properly addressed! only to the law-making department of the government.

Where,, however, this department has indicated a purpose to be accomplished and in its wisdom has provided the means of its accomplishment, a proper respect for its judgment and a proper recognition of its independent function of government, require the Courts in passing upon its act in this regard to have in view the effectuating of the main purpose. In this view the considerations mentioned must have influence in determining the meaning and effect of every part of the legislative act because the Legislature must have intended the means to be in harmony with the purpose. In the case in hand1, that the Legislature intended the Board of Estimates as a principal means of accomplishing the wise and proper objects already indicated seems quite obvious. Therefore it is that its powrers are not to be narrowed and restricted by construction.

We come now to the questions of more immediate concern in the cage before the Court. It appears from the record that the Board of Estimates provided far in the Charter of the City ¹⁵ of Baltimore, here under consideration, in pursuance of the duty prescribed to it in the Charter, prepared the draft of an Ordinance of Estimates for the fiscal year 1901, and on the 30th of November, 1900, this draft was submitted simultaneously to both Branches of the City Council. No action was taken in the Second Branch until the next day, December 1st, 1900, when on motion the ordinance was referred to a joint special committee composed of three members from each Branch. On December 4th, 1900, the ordinance was passed by the Second Branch.

When the ordinance was received in the First Branch, upon motion, the consideration of it was postponed to the next meeting; and on December 1st, on motion, the members of the Second Branch were invited to confer with members of the First Branch in regard to the Ordinance of Estimates. This invitation was accepted and then, on motion, in the First Branch a committee was appointed to confer with a similar committee of the Second Branch, said joint committee to take charge of and consider the ordinance and report to their respective Branches. On December the 5th the First Branch amended the ordinance, which had been, the day before, passed by the Second Branch and passed it as amended. On the 6th of December, the ordinance thus amended was received by the Second Branch, where a substitute was offered and adopted for the amendment made in the First Branch.

On the same day this substitute was adopted by the First Branch and the ordinance as amended by this substitute was finally passed by both Branches of the Council. When the ordinance was sent to the City Council by the Board of Estimates it provided for new improvements as follows : “Purchase of lots, with the approval of the Mayor, City Comptroller and President of the School Board, erecting buildings enlargement of existing buildings for school purposes.$ 190,000 00 “ New pavements.” “ Carey street, from Lexington to Columbia avenue, Belgian blocks.......44,000' 00” ¹⁶ ■“ Chase street from Broadway to Wolfe street, sheet asphalt..........11,300 00” ■“Thames street, from Philpot to Wolfe street, Belgian blocks...........13,200 00” •“ Madison street, from Burén street to Green-, mount avenue, Belgian blocks.....11,300 00” “Baltimore street, from Chesapeake to Grove street, sheet asphalt......... 4,500 00’’ Block street, from Drawbridge to Thames street, Belgian blocks........7,900 00” ■“ North avenue, from Eutaw Place to St. Paul street, sheet asphalt........60,000 00” “ McCulloh street, from Lanvale street to Lafayette avenue, asphalt blocks ..... 5,4°0 00” ■“ Barnet street, from Charles street to Liberty street, asphalt blocks........2,500 00” “Fort avenue, from B. & O. crossing to Hull street, Belgian blocks.........20,000 00” The amendment that .was made to it by the City Council was the striking out of all the items that have been here set •out and the substitution therefor in the ordinance of the following : In lieu of the first item appropriating $ 190,000 for “ erecting buildings, &c., for school purposes, “ Amount to be appropriated by the City Council for new improvements, to be constructed by the Inspector of Buildings for the Board of School Commissioners dui'ing the fiscal year 1901........$190,000 00” In lieu of the several items for new pavements : “Amount to be appropriated by the City Council for new improvements, to be constructed by the City Engineer during the year 1901...........$180,000 00” After the ordinance had been passed as amended it was sent to the Mayor for his approval in accordance with the provisions of section 23 of the Charter. This section requires all ¹⁷ ordinances after being duly passed by the City Council to be sent to the Mayor for his approval, and if he shall not approve an ordinance, he is required to “return the same with his objections in writing to the Branch in which the said Ordinance originated, within five days of actual regular sittings of said Branch,” &c. When these objections are received by the Branch of the Council to which they are thus sent the same-are to be forthwith read and entered at large on the journal of the Branch and the said Branch is required after five and within ten days after the return of the ordinance and the objections, to “ proceed to reconsider and vote upon the same,” and if passed over the veto by the said Branch by a vote of three-fourths of all the members elected to said Branch it shall be-sent with the Mayor’s objections to the other Branch, and within the same limitations as to time, it is to be reconsidered and voted upon by the said other Branch, and if therein passed by a vote of three-fourths of all the members elected to said Branch it becomes an effective ordinance notwithstanding the veto.

It is also provided that “ if any ordinance or resolution duly passed by the City Council shall not be returned by the-Mayor to the Branch of the City Council in which the same: originated within five days of its actual regular sittings, excluding special sittings called by the Mayor, after it shall have-been delivered to him, the same shall become an ordinance or resolution of the Mayor and City Council of Baltimore in the-same manner as if the Mayor had approved it, unless the City Council by an adjournment sine die, or for a period exceeding-one month, shall prevent its return.” It is further provided! that in case an ordinance shall embrace different items of appropriation the Mayor may approve the provisions of the-ordinance relating to one or more of the items and disapprove-others. Those that he approves “ shall become effective,”' and “ those which he shall not approve shall be