Robinson v. Mayor of Baltimore

Fowler, J., delivered the opinion of the Court. Howell D. Robinson was appointed by the Mayor of Baltimore and duly confirmed by the City Council of that city in February, 1898, as one of the assessors of taxes under an ordinance which was approved March 28th, 1893. His appointment was for two years, dating from March 1st, 1898. By ordinance passed 29th December, 1899, the ordinance of March 28th, 1893, under which Mr. Robinson was appointed, was repealed.

Thereafter, on the 1st February, and again on 1 st March, the city refused to pay to Mr. Robinson thé salary provided by the ordinance under' which he was appointed. Mr. Robinson has brought this action of assumpsit against the city to recover his salary for January and February, i960, and the defendant has demurred to the third count of the narr. ²¹⁰ The Court below sustained this demurrer, and judgment having been entered for the defendant, the plaintiff has appealed. The question presented by the demurrer is whether the ordinance under which the plaintiff was appointed and confirmed as one of the assessors of property for taxes was repealed by the ordinance of December 29th, 1899, passed for that purpose, or by the provisions of the new city charter known as the Act of 1898, ch. 123. We will first briefly consider the effqct of the charter in this respect.

By the third section of the Act of 1898, ch. 123 (Baltimore City Charter), it is provided that “all ordinances of the Mayor and City Council of Baltimore now in force and not inconsistent with this Act, shall be and they are hereby continued until changed or repealed, respectively, by the General Assembly of Maryland or the Mayor and City Council of Baltimore.” It is, of course, conceded that the ordinance of 28th March, 1893 (codifiéd as sec. 2A, Art. 50, of the City Code of 1893), was in force when the new charter went into effect. Hence, if it is not inconsistent with the new charter it is continued under •the very terms of section 3. But the provisions of the former •ordinance (sec. 2A, Art. 50, Code 1893), appear to be clearly inconsistent with the provisions of the new charter relating to ithe same subject. By the former the Mayor biennially appointed assessors of taxes by and with the advice and consent •of a convention of both branches of the City Council, while by '•the latter no power is given to the Mayor to appoint assessors ;and it is provided by section 147 that the Appeal Tax Court imay appoint such number of assessors as they may deem necessary.

But it is contended by the plaintiff that in spite of the glaring inconsistency between the old charter and the new charter the provisions of the former in this regard were still in force and full operation until the officers under the new charter were duly appointed and qualified, that is to say, until 1st March, 190©. In support of this contention the plaintiff relies on the third and fourth sections of the Act of 1898, ch. ²¹¹ 123, and section 25 of the new charter. Before, however, considering these provisions, we should recur to the fact that the ordinance on which the plaintiff bases his claim was, in fact, repealed by ordinance of December 29th, 1899. So that the ordinance on which the plaintiff relies is not only inconsistent with the new charter (sec. 147), but it has been repealed.

If it be conceded, therefore, that the ordinance in question was not inconsistent with .the new charter, nevertheless it has not been thereby continued, because it has been repealed. The contention of the plaintiff, however, is, as we have said, that the Mayor and City Council has no power,