Upshur v. Baltimore City

McSherry, C. J., delivered the opinion of the Court. This is- an application for a writ of mandamus. The petr tion was filed in behalf of the Board of Park Commissioners, by and in the name of the Mayor and City Council of - Baltimore, against the Board of Police Commissioners. The relief asked is that the Police Commissioners shall be required to detail, and place under the direction of the Board of Párk Commissioners, eighty-three men from the regular • force of patrolmen, for the preservation of -order within the parks and squares of the city of Baltimore.

This demand that the Police Commissioners shall separate and detach from the regular force under their command; about twelve per cent of the total number of policemen and place them under the control of the Park Board to render service in the parks and squares, is supposed to be sanctioned by sec. 95, ch. 123, Acts of 1898. That section, which is a part of the city charter, is in the following words: “The Board of Police Commissioners of Baltimore City is directed at the request of the Board of Park Commissioners to detail from time to time such of the regular police force of said city as the said Board of Park Commissioners may deem necessary for the preservation of order within said parks and squares, according to the regulations aforesaid, vohich policemen shall be under the direction of said Board of Park Commissioners, and shall have the same power in said parks and squares that the police of the city of Baltimore have as conservators of the peace in Baltimore City or elsewhere.” If this section stood alone—if there were no other provisions of the local law bearing on the same subject—it might possibly ⁷⁴⁶ furnish a ground to support to some extent, but not in its entirety, the Park Commissioners’ contention. But there are other enactments forming part of the local law, and equally as important and obligatory as the one just read, and equally as applicable as it is to the subject-matter of this controversy. These will be alluded to in a moment, and then sec. pj will be interpreted, first, as it now stands, and secondly, in the light of other pertinent sections and in view of the circumstances that suggested and accompanied its adoption when originally enacted.

It may not be amiss to briefly restate a few fundamental and familiar principles which ought not be lost sight of in dealing with the question which this record presents. It must be remembered that a writ of mandamus is not a writ of right granted as of course, but it is one which is allowed “ only at the discretion of the Court to whom the application is made. This discretion will not be exercised in favor of applicants unless some just or tiseful purpose may be answered by the writ.” Booze v. Humbird, 27 Md. 4 . It is also well settled that the relator’s right which is sought to be enforced must be a clear, distinct legal right; State ex rel., O’Neill v. Register et al., 59 Md. 287 , and that it must be certain and free from doubt.

Mandamus is an extraordinary process, “ and if the right be doubtful, or the duty discretionary, or of a nature to require the exercise of judgment * * * this writ will not be granted. * * * * And it will not be allowed unless the Court is satisfied that it is necessary to secure the ends of justice.” Georges Creek Co. v. Co. Coms., 59 Md. 259 ; State, &c., v. Latrobe, 81 Md. 222 . The writ “is based upon reasons of justice and public policy to preserve peace, order and good government,” Poe's Pr., sec. 708, and obviously, therefore, will never be granted when those ends would be subverted or might be frustrated. Bearing in mind these recognized axioms a farther examination of the provisions of the charter and the local law will now be made. That which is now sec. 95 of the charter has been transcribed, with some slight changes, from the Act of 1862, ch. ⁷⁴⁷ 29; and that Act related very largely to the acquisition of land now forming Druid Hill Park.

That land was then wholly beyond the city limits and entirely within the outlines of Baltimore County. Sec. 758 of the local law declares : “The said Board of Police Commissioners are required on the requisition of the Board of Park Commissioners, to detail from time to time such number of the regular police force of said city as the said board may deem necessary for the preservation of order within any parks under their control, which detailed force shall have the same power in the premises that the police force of the city have, as conservators of the peace.” This provision when originally adopted formed part of the Act of 1867, ch. 367, and was only applicable to Druid Hill Park which was still beyond the city limits. Sec. 744 of the local law, taken almost literally from the Act of 1860, ch. 7, by which the Board of Police Commissioners was first created, provides in part: “The duties of the Board of Police Commissioners * * * shall be as follows: “They shall at all times of the day and night, within the boundaries of the city of Baltimore, as well on the water as on the land, preserve the public peace, prevent crimes and arrest offenders, protect the rights of persons and property, guard the public health, preserve order at primary meetings and elections, and at all public meetings and conventions and on all public occasions and places, &c.” Sec. 745, as amended by the Act of igoo, ch. 425, declares : “The said Board of Police Commissioners are authorized and required immediately on entering on the duties of their office to appoint, enroll and employ a permanent police force for the city of Baltimore, which they shall arm and equip as they may judge necessary under such rules and regulations as they may from time to time prescribe,” &c. Sec. 755 is emphatic in providing that: “It shall be the duty of every officer of police and every policeman and detective, to report to the board and deliver to them all property seized or found by said officer, &c.” In all of the aforegoing extracts and in others to be read later on the words upon which stress will be laid will be put in italics.

Sec. & of the charter and sec. 75 g of the local law will be quoted hereafter. ⁷⁴⁸ Can these various sections be made to harmonize in sucha way as to clothe the Park Board appointed by the Mayor, with authority to make; and then enforce by mandamus, the demand which is the basis of this proceeding, without disregarding the words of sec. 95, and without stripping the Police Board of some of its powers and narrowing the limits of its prescribed duties ? Before proceeding to answer this inquiry it is essential that the precise demand made should be clearly understood and accurately kept in mind. The exact demand, in the language-of the first paragraph of the petition, is, that the Police Board shall furnish to the Park Board “from the ■regular force of patrolmen, eighty-three men to render service all the year round and six additional men to serve from May to October, for the preservation of order within the parks and squares of the city of Baltimore, in conformity with the regulations of the Board of Park Commissioners, as authorized by sub-sec. 95 of the Acts of Assembly of 1898, ch. 123, known as the city charter.” And the prayer of the petition is for a writ of mandamus commanding the Police Boárd “to comply with the request of the said Board of Park Commissioners, as in this petition recited.” There can be no mistake about the scope and significance of this demand. It distinctly asks that eighty-three men be detached from the regular force and be placed under the direction of the Park Board “to render service all the year round" in the parks and squares.

Does sec. 95 standing alone justify that demand? Does it,' when construed with the other cited sections, confer such a clear, definite and distinct legal right upon the-Park Board to make that demand, and such a correlative duty on the Police Board to comply therewith, as will be enforced by a writ of mandamus? First. Sec. 95 standing alone gives no power to the Park Board to demand permanent control, or control'1 for a year over any part of the regular force of policemen.

At most that section directs the Police Board “to detail from time to time” such of the regular police force, &c. These "words “to detail from time to time’’ are not technical words. They are the words of' common speech, and as such their interpretaton is ⁷⁴⁹ within the judicial knowledge, “and.^therefore, matter of law.” Marvel v. Merritt, 116 U. S. 12 . The Century Dictionary defines the verb “detail” to mean “to set apart for a. particular service,” and the phrase “from time to time” to mean “occasionally;” and the Universal Dictionary defines “from time to time” to mean “at intervals, now and then.” Giving to the language employed its accepted meaning, the section merely provides that the Park Board may request the Police Board to “set apart” “occasionally" or "at intervals" or "now and then',’ a certain number of patrolmen “for a particular service,” and, therefore, it does not mean that the Police Board shall detail the men permanently, or for the definite period of a year.

As the duty to be performed by the Police Board is only to detail men occasionally, that is, at irregular intervals, the imposition of that duty, thus limited, gives the Park Board no authority to demand that a designated number of the police shall be detailed for a whole year to serve in the parks and squares. Service for a whole year means continuous service; the statute means occasional service. This construction not only ascribes to the language of the section its natural meaning, but, as will he seen in a moment, .is imperatively demanded if the autonomy of the Police Department is to be maintained. . Secondly: Section seven hundred and fifty-eight whilst requiring the Police Board to detail “from time to time,” and, therefore, occasionally, some of the regular police force to preserve order in the parks, does not place the policemen when so detailed, under the direction of the Park Board, as sec. p¡ does.

By which section are the policemen when detailed for service in the parks to be governed ? As members of the force they are undoubtedly bound to obey the Police Board. If under sec. 95 they are subject to the direction of the Park Board, and are placed there, detailed, set apart, for a year, as the prayer for mandamus asks, they must obey the Park Board during that year, although sec. 755 makes it the imperative and unqualified duty of every policeman to report to the Police Board. If the men detailed—set apart—for the parks are under the direction of the Park Board, they can ⁷⁵⁰ not at the same time be also under the direction of the Police Board.

That is obvious. Before the parks were brought into the city, the police assigned to the parks were placed under the direction of the Park Board because the Police Board had no jurisdiction as conservators of the peace, beyond the city limits. At that time it was impossible that a clash of authority between the two boards could occur. Now it is otherwise.

But what is the utility of the detailed policeman reporting to the Police Board, if, after being assigned to service in the parks, he must take his orders from the Park Board ? And how can he be under the direction of the Park Board unless he takes his orders from that board? Under sec. 744 and sec. 945, as amended by the Act of 1900, ch. 425, the Police- Board has absolute control over the permanent police force enrolled for the city of Baltimore; and the municipal authorities have no right to interfere with that control. For, as was said by this Court more than forty years ago, in Mayor, &c., v. State ex rel.

Board of Police, 15 Md. 455 , when construing the Act of 1860, ch. 7, which first created the Board of Police Commissioners: “This law deprives, the city authorities of all control over, or interference with, the police of the city, except as provided by the 19th sec. of the 4th Art. of the Constitution” of 1851—an exception, it may be added, which does not concern the pending controversy because it is no longer contained in the organic law. It was manifestly not the design of the Legislature when enacting the new city charter to create a conflict between these various sections and thereby to leave to the. Park Board an opportunity or the ability, if it should so elect, to diminish the force under the control of the Pólice Board, if the former selected sec. 95 to act under, when by selecting sec. 758 the police would not be withdrawn from the supervision of the Police Department. Which section is to control ?

Are we to say that sec. 9$ shall have priority over sec. Jp8 ? That would be in' the teeth of the decision in Smith v. Co. School Com., 81 Md. 513 , where it was held that when different sections of the same -law conflict, the later one must prevail. Or, are ⁷⁵¹ we to say that both sections standing together must limit the wide and comprehensive authority of the Police Board over the men enrolled by them for the preservation of order and the protection of persons and property throughout the entire city of Baltimore ?

Will any accurate answer to these questions reveal a clear, distinct, legal right in the Park Board, sufficiently definite, free from doubt and imperative, to justify the issuing of a writ of mandamus; the ultimate effect of which writ will be to subordinate the judgment of the Police Board to the judgment of the Park B^ard on the subject as to what number of policemen shall be detailed for the parks, though the Park Board as an agency of the city is strictly forbidden to interfere in any way with the Police Board, as will be shown later on when sec. 6 of the charter and sec. yyp of the local law are commented on ? By treating sec. pp as mandatory a conflict of jurisdiction between the Park Board and the Police Board is made, not only possible, but highly probable.' This case presents a conflict in concrete form. The parks are now within the city limits. They now form part of the territory over which the jurisdiction of the Police Board extends.

Independently of sec. pp it is just as obligatory on the Police Board to maintain order, preserve the peace and protect property within the parks and squares, as it is to discharge the same duties in the heart of the inhabited portion of the city. “They shall at all times of the day and night, zvithin the boundaries of the city of Baltimore * * * preserve the public peace, prevent crime and arrest offenders, protect the rights of persons and property * * * on all public occasions and places',' sec. 744. These are amongst the objects for which the Police Board was clothed with plenary power to enroll, to arm and to maintain the force which the statutes subject to the board’s authority. If the board is to do these things effectively, it must be in a position to enforce a rigid discipline over its subordinates ; and there can be neither efficiency nor discipline, much less celerity of action, when the authority to command is divided between two boards. If sec. pp is mandatory, then every part of it is ⁷⁵² mandatory, and the men who -are furnished, under it, to the Park Board to serve for a year in the parks, are for that period of time, subject to the direction, that is, the control, of the Park Board ; and if this be so, they are necessarily, for the same period, withdrawn from the control of the Police Board ; for the obvious reason that they cannot obey both boards if the orders they receive from one are in conflict with the orders received from.the other.

If twelve per cent of the enrolled force can be thus withdrawn from the'control of the Police Department, why may not twenty or thirty per cent be likewise dealt with ? If that can be done, then .the utter demoralization of the force will surely ensue. If sec. gybe given a mandatory meaning then the Police Board, so far as respects the preservation of order in the parks, must be goverened, not by its members’ own sense of duty, not by the obligation - of their oath of office and not by their own judgT ment, but by the wisdom or the behests of the Park Board. Now, as under sec. 744 it is the imperative duty of the Police Commissioners at all times of the day and .night “ within the boundaries of the city” and at “all public * * * places” to “ preserve the public peace, prevent crime and arrest offenders ; and as the parks and squares are public places and are now within the boundaries of the city; it necessarily follows that the jurisdiction of the Police Commissioners includes and extends over those squares and parks, and that the officers and men placed, in the squares- and. parks are, whilst there, under the control and subject to -the direction of the -Police Commissioners.

If this be so—and it does not admit of a reasonable doubt—then there is a palpable conflict between see., 744 and the antecedent sec. gy in so far forth as the latter section purports to subject the detailed policemen to the direction of the Park Commissioners ; and if both sections are. mandatory it is obvious that both cannot prevail. A construction which produces such a repugnancy and which subordinates in any particular the Police Commissioners, who are State officers (Altvater v. Mayor, &c., 31 Md. 462 ), to the domination of a mere municipal board, cannot be said to establish a clear, dis ⁷⁵³ tinct legal right, free from doubt; especially in the face of the .provisions of sec. jpg which emphatically declares :-. “ Nothing -in this sub-division of this Article shall be so construed as to * * * * give the said Mayor and Council of Baltimore any control over said Board [of Police Commissioners] or any officer of police, policeman or detective appointed thereby." Nor can the theory that sec. gp is-mandatory be upheld against the explicit provisions of sec..6, sub-title Police Power, which, provides : “ Nor shall the said city, or any officer or agent of the city, or of the-Mayor thereof, in any manner impede, obstruct, hinder or interfere with the said Board of Police, or any officer, agent or servant thereof or thereunder.” Both of these last cited-sections are prohibitory. No mandamus can be issued to enforce compliance with a demand which overrides or is at variance in any particular or to any extent, with these clear and emphatic prohibitions. If sec. gp is mandatory, then the Police -Board is subject to the control of the Park Board to the extent that the former is imperatively bound to comply with the