State ex rel. Mayor of Baltimore v. Kirkley

Miller, J., delivered the opinion of the court : The main subject of inquiry, and the question upon which this case turns is, had the appellees, at the time this proceeding was instituted, authority to act in the capacity of “ The Building Committee of the new City Hall,” and make the contracts and do the other acts referred to in the petition for the writ of mandamus ? ¹⁰² It is conceded no such office existed, either under the laws of the State or the Ordinances of the City, prior to the passage of Ord. No. 58, approved the 25th of September, 1865. The first section of that Ordinance provides “ that the Mayor shall appoint, subject to the approval of the City Council in convention, four persons,” who with the Mayor shall constitute a Board of Commissioners, to be styled “ The Building Committee of the new City Hall.” By subsequent sections *the powers of these officers are defined, including the power to make contracts for labor and materials for the erection of the building. By section 9 it is enacted : “ That in order to fneet the disbursement required by this Ordinance, the Commissioners of Finance, be and they are hereby authorized and directed to issue $500,000 of city bonds, or so much thereof as is necessary, from time to time, bearing six per cent, interest, payable semi-annually, and redeemable at the pleasure of the Mayor and City Council of Baltimore, at any time after the 1st of July, 1893, and dispose of the same at market price, and deposit the proceeds with the City Register, who shall set aside the same as a fund to be applied towards the erection of a new City Hall, as herein provided for ; ” and by section 11 it is enacted and ordained : “ That this Ordinance shall have no effect until the ninth section shall be confirmed and ratified by the General Assembly of Maryland.” From this language it is too plain for argument that the whole Ordinance, including the power to appoint these officers, was to remain inoperative until some thing was done by the Legislature of the State to give it vitality.

It is not, however, open to objection on this ground, for this court has decided that a municipal corporation may pass an Ordinance, within the limits of their delegated powers, contingent as to its operation and effect, on the existence or occurrence of facts germane to its subject-matter. “ A valid law may be passed to take effect upon the happening of a future contingent event, even where that event involves the assent to its provisions by other parties ; and the same principle applies to an Ordinance passed by a municipal corporation, within the legislative powers delegated to the corporation, provided it does not appear that the contingent event is foreign to the subject-matter of the Ordinance, and wholly unconnected with the consideration ¹⁰⁴ of the public convenience, upon which alone the Ordinance must be based.” Balt. v. Clunet, 23 Md. 469 . *To ascertain the meaning of the terms used in section 11, and the design and intention of the framers of the Ordinance, in adopting this restriction upon its operation, resort must be had to the same general rules of construction which govern the interpretation of Acts of the Legislature ; such rules are equally applicable to the legislative acts of a municipal corporation, passed within the scope of its delegated powers. Balt. v. Howard, 6 H. & J. 382 ; Balt. v. Clunet, 23 Md. 468 . The courts cannot presume an intent, but must collect it from the words of the Act and the cause or necessity of its passage ; they cannot correct mistakes nor supply omissions. “We are not at liberty to imagine an intent, and bind the letter of the Act to the intent ; much less can we indulge, m the license of striking out and inserting and remodeling, with a view of making the letter express an intent which the statute, in its native form, does not evidence.” Alexander v. Worthington, 5 Md. 485 . “ When the Legislature has used ivords of a plain and definite import, it would be very dangerous to put upon them a construction, which would amount to holding that the Legislature did not mean what it has expressed.” Dwarris on Statutes, 703. It was undoubtedly within the powers delegated to the city to provide, by Ordinance, for the erection of this building, and to appoint and create the necessary agents and officers to superintend its construction ; but it is conceded that money for that purpose could not be raised by the issual of city bonds, unless power to that end was granted by the Legislature.

Instead of first obtaining the necessary grant of power, and then passing Ordinances in execution of it/ the Council who passed this Ordinance themselves framed and adopted, in section 9, a plan for issuing the bonds, limiting their amount, fixing the time after which the city might redeem them at its pleasure, and the rate and times of payment of interest, and then made the effect and operation of the whole Ordinance to depend upon the sole contingency of the confirmation *and ratification of this plan by the Legislature. Their right to do this is unquestioned, and it was eminently proper that the members of the City Council, representing their constituents, ¹⁰⁵ should be the judges of the amount and mode of taxation to be imposed, for this purpose, upon the taxpayers of the city. Giving to the language of section 11 its plain and ordinary import, we cannot infer an intention that the Ordinance was to take effect whenever the Legislature should grant power to raise money by issuing bonds for such an amount, and on such terms as the Act bestowing the power might prescribe. The intent must be collected from the words, and we cannot infer that those who adopted this Ordinance would have done so on any other terms than those expressed, or would have been willing that their constituents should be taxed for any other amount, or in any other mode, or at any other time.

They had the right to fix their own conditions for the operation of the Ordinance on their constituents, and have done so in plain and emphatic language. They have said, 'no part of this Ordinance shall be effective until its ninth section shall be confirmed and ratified by the Legislature. They have not said it shall become operative when the ninth section shall be confirmed and ratified, or when the, General Assembly shall grant power to issue bonds on different terms and conditions, and we can add no such clause to the condition thus plainly expressed. Some Act of the Legislature confirming and ratifying its ninth section was, therefore, essential to the lawful exercise of the power to appoint the officers provided for in the first section of this Ordinance.

With regard to the mode of confirmation, there is little difficulty if we look to legislative practice in such cases. Ordinances precisely similar have frequently been submitted to the Legislature for confirmation, and the practice established by numerous precedents cited in argument, is for the confirming Act to recite the Ordinance in its very words, then to enact that the same be ratified and confirmed, and grant the power to carry it into effect. We do not mean to say this is the only mode in which such confirmations can be made, for if the intent to confirm can be plainly found in the occasion, the subject matter, and the language of the Act relied on as confirmatory, it will amount to a ratification even if the terms “ confirm and ratify ” be not used. In Dulany v. Tilghman, 6 G. & J. 473 , where it was insisted a deed had been confirme4 by an Act of the Legislature,- the court say : “ If we coul4 be ¹⁰⁶ convinced that such was the design of the Legislature, it must be carried into effect ; but their intention must be ascertained, not by remote inference or vague conjecture, but collected from the nature of the application made to them, and the terms they have used in granting it.” With this exposition of the Ordinance, and the same rules of construction as our guides, let us examine the Act of 1866, ch. 1, which is alone relied on as the required legislative action.

Its title is “ An Act authorizing the Mayor and City Council of Baltimore, to build a new City Hall;” and the only provisions in the body of the law are these : “ That for the purpose of building a City Hall, and such other improvements connected therewith as may be deemed necessary, the Mayor and City Council of Baltimore, be and they are hereby empowered to issue City bonds in certificates of not less than $100 each, redeemable in fifteen years, bearing six per cent, interest, payable quarterly, and transferable as other City bonds, to an amount not exceeding $600,000, and shall provide a sinking fund of two cents on every $100 of assessable property annually, for the redemption of the bonds so authorized to be issued : provided, said City Hall shall not be commenced within one year from the passage of this Act.” Not only is there no reference either in the title, or the body of the law, to the Ordinance of 1865, and an entire absence of any words of confirmation or ratification, but the provisions of the law, in every material respect, differ from those of the ninth section of this Ordinance. It authorizes the raising of a larger sum, makes the bonds unconditionally redeemable in a much *shorter time, imposes an obligation to provide a sinking fund by an annual tax for the redemption of the debt, and the whole law is subject to a proviso that the work shall not be commenced within one year from the passage of the Act. It is true both the law and the Ordinance refer to the same subject, and the former is a grant of power to issue bonds, and this, with precedence in point of time, of the Ordinance to the law, are the only circumstances from which confirmation or ratification can be imagined. But to infer such intent from these circumstances would be to draw remote inferences and indulge in vague conjecture.

Every conceivable purpose of the Legislature, so far as appears from the face of the Statute, is gratified by con ¹⁰⁷ struing this Act not as confirming, ratifying, or consenting to any provisions of the Ordinance, but as an independent grant of power to be exercised by future conformable legislation on the part of the City Corporation. Such, is its natural construction, and such, in our opinion, was the design of the Legislature in passing it. But if further reasoning on this subject be needed, let us suppose the Act had existed before the Ordinance, and then ask the question, would an Ordinance directing bonds to be issued as provided in this ninth section, be a valid execution of the power granted by the Act ? Unless this question can be answered in the affirmative, it cannot be said the Act confirmed and ratified this ninth section, and no such answer can be given without disregarding long established and well settled principles of law regulating the execution of delegated powers.- In such a case the mode is the measure of the power.

There being then no confirmation or ratification of its sec. 9, the whole Ordinance, by force of the restrictive terms of its eleventh section, was of “ no effect,” and yet, without any