Smith v. Gaither

⁴⁸⁵ Pattison, J., delivered the opinion of the Court. The appellants^ tax payers of Baltimore City, filed their bill in this ease asking that Charles D. Gaither, Police Commissioner of said city, one of the appellees, he restrained from paying unto the other appellee, Harry Ernest, a policeman of said city, out, of the public fund created for the, payment of the salariéis of policemen, any compensation for the services rendered by Mm as policeman; and that said police commissioner be ordered and required by injunction to cause the name of Harry Ernest to be stricken from the pay roll of the police force of Baltimore City. The prayer1 of the bill was based upon the alleged fact that, the appointment of Ernest, as, policeman, was illegally made and that, he, at the time of the filing of the, bill, was not legally a member of the police force of Baltimore City, entitled to receive out of said fund compensation for services rendered by Mm as. policeman, and if he were so¡ paid, snch payment would be a misapplication of said public funds. Chapter 16 of the Acts of 1900, by which the Board of Police Examiners was created, provided, in section 745 D, that it was the duty of said board “to ascertain the qualifications by competitive examination of every candidate for appointment to * * * the police force, * * * except the marshal of police and captain of detectives, counsel and police surgeons, and to report to the Board of Police Commissioners * * * graded lists of those persons whom they may deem, qualified for such appointment * * *, from which graded liste all nominations for1 appointment to * * * said police force shall hereafter be made by said Beard of Police Cbmmisrsioners.

The said .act also> provides (section 745 E) that an applicant for appointment to said police force shall file with the Board of Police Examiners¡ a formal application in writing in which he shall state under oath such information as may reasonably he required, touching the, applicant’s merit and fitness for service1 on said police force. In addition thereto, it provides that “the said Board of P'olice Examiners ⁴⁸⁶ shall refuse to examine an applicant, or after an examination to certify an eligible, who is found to lack any of the established preliminary requirements for the examination or position to which he applies; * * * or who is addicted to the habitual use of intoxicating "beverages to excess; or who has been guilty of a crime or of infamous or notoriously disgrace^ ful conduct; or who has been dismissed from the public service for delinquency or misconduct; or who has intentionally made a false statement of any material fact, or “practiced, or attempted to practice, any deception or fraud iu his application, in his examination, or in securing his eligibility or appointment.” The appellee., Ernest, made application for appointment on the police force on the first day of September, 1919, and was in November thereafter appointed on said force, at which time he was twenty-five years of age. On July 20, 1922, the appellants preferred the following charges against him: First: That the said Harry Ernest in his formal application for appointment to the police force of Baltimore City, under oath, knowingly and intentionally, attempted to practice and did practice deception in his said application relating to material facts, which conduct on the part of said Harry Ernest rendered him ineligible for membership on the police force of Baltimore City. Second: That he committed an unjustifiable assault on them on February 4, 1922.

Hpon the presentation of these charges> Charles D. Gaither, as Police Commissioner for Baltimore City, called for and obtained, from the Attorney General of the State, an opinion in which it was held that he, as Police Commissioner, was without authority to remove Ernest from the force upon the first of said charges brought against him — the other not having been submitted to the Attorney General for his opinion thereon. — because of chapter 507 of the Acts of 1922, which was construed by him to validate the appointment of Ernest, if conceded to be illegal when made. ⁴⁸⁷ Hpom the refusal of the Police Commissioner to remove Ernest upon the charges named, the appellants filed their bill on May 11th, 1923, in which they asked, not for his removal in express terms, but that he .should not be paid for his services as policeman, out of the funds mentioned, and that his name he stricken from the "payroll of the police force. The contention of the appellants is that, in asking for such relief, they are not asking for the removal of Ernest from his office or position on the force, or that his title thereto is to he determined, for this could only be done in a court of law; but while they contend that such is not the purpose or object of their prayer, or its necessary effect if granted, the obtention of the relief sought depends absolutely upon Ernest’s want of title to such office or position and, if their prayer were granted, the practical result thereof would bo to deprive him of it. The question whether a court of equity was the proper forum to pass upon the questions presented by the bill, and to grant the relief there sought, was with other questions raised by the appellees, hut we do not feel called upon in this ease to pass upon them, for should we concede, for the sake of argument, that the appointment of Ernest when made was illegal, it was thereafter, we think, validated by said Act of 1922. In Upshur v. Ward, 94 Md. 778 , Ward, the appellee, filed his petition in the Superior Court of Baltimore City, asking for a writ of mandamus to issue against, the appellants, the Board