Street Comrs. v. Williams , 96 Md. 232 ( 1903 )

By the Act of 1898, ch. 192, relating to Hagerstown it is among other things provided that the Board of Street Commissioners "shall appoint regular policemen, not exceeding ten, to serve under such regulations and for such compensation as they (the Street Commissioners) may direct, such compensation not, however, to exceed forty dollars per month, and said policemen shall be subject to removal for cause." Sec. 192 was amended in 1900, by ch. 391, of the Acts of that session, but not in such a way as to affect the question involved in this controversy. In February, 1900, and therefore whilst the Act of 1898 quoted from above was in force, the appellee, Williams, was appointed by the Board of Street Commissioners then in authority, a regular policeman and he duly qualified and entered upon the discharge of his duties. He continued to perform those duties until April the sixteenth, nineteen hundred and two, when he was discharged by the Street Commissioners without notice that any charge had been preferred against him and without an opportunity to be heard in his own defense. He then made application to the Circuit Court for Washington County for a writ of mandamus requiring the Street Commissioners to restore him to his office. In the answer of the respondents it is admitted that the action of the majority of the board in discharging the appellee was taken "without notice or citation to the said petitioner to appear before said board at said particular meeting" (that is, the meeting of April the sixteenth), "and without notice to the said petitioner that any charge had been made against him for failure or neglect of duty or official misconduct, or any notice to the said petitioner of the action contemplated." In their answer the respondents further insisted that they were entrusted by the statute with the sole power to determine whether the appellee should remain on the police force; that their judgment in the matter was final and conclusive; and that inasmuch as they had exercised their discretion, had removed the appellee and had appointed another person in his place, the Court was without jurisdiction to review their action. To the answer, only parts of which have been cited, the appellee filed fifteen pleas and joinders of issue. Several of the pleas were demurred to, but as the case now stands it will not be necessary to allude to any but the fifteenth plea. By that plea it was averred that under the section heretofore quoted from the statute, and under the rules and regulations adopted by the Street Commissioners, the appellee was entitled to have due and proper notice of any charge or charges made against him and that he was entitled to an opportunity to be heard in his own defense, but that he did not have either notice or an opportunity to be heard. The demurrer to that plea raises the only question before us. And that is the only question before us, because though the record contains considerable evidence on the issues of fact there is no bill of exceptions, no agreement of counsel or no certificate of the trial Judge from which this Court can know or be apprised that what is in the record was, in fact, the evidence considered by the Court below. Without some such authentication of the testimony we are not at liberty to consider it. Davis v. O'Berry, 93 Md. 751. In Creager v.Hooper, 83 Md. 501, the question decided arose on a demurrer. In Manger v. Board of Examiners, c., 90 Md. 672, there was a bill of exceptions.

From the order directing the writ of mandamus to issue the Street Commissioners have appealed.

The single question for decision on that part of the record which is properly before us arises on the demurrer to the fifteenth plea; and that question is, was the appellee, under the terms of the Act of 1898 heretofore transcribed, entitled to notice that charges had been preferred against him and further entitled to a hearing before being removed?

There have been many cases decided by this Court on the subject of official tenures and relating to the right of removal from office; but the precise situation here presented does not seem to have arisen heretofore. In State, ex rel. O'Neill v. Registeret al., 59 Md. 283, the statute under which the relator was appointed provided that the appointees of the Fire Department of Baltimore City "shall be of good character and * * * * shall be appointed by the Fire Commissioners and shall be entitled to retain their respective positions for such time as they evince willingness and capacity to discharge the duties pertaining thereto efficiently, harmoniously with their associates, and satisfactorily to the Fire Commissioners." The relator having been discharged from his position of foreman of an engine company applied to the Court of Common Pleas for a writ of mandamus to require the Fire Commissioners to restore him to his former place. The writ was refused and this Court held that under the statute just quoted "the Fire Commissioners were solely invested with the power of determining whether their appointees were persons of good character as by law required to be, whether they were efficient in the service, and whether they evinced proper willingness to discharge their duty `harmoniously with their associates,' and the judgment and discretion exercised in the matter by the Fire Commissioners are not subject to the revision of another tribunal." It was further held that when the power of removal from office vests by statute in the discretion of any person, or body of persons, or depends upon the exercise of personal judgment as to whether the cause for removal be sufficiently good, mandamus will not lie. In Miles et al. v.Stevenson, 80 Md. 358, it was held where the term was for a definite and prescribed period and where the causes justifying a removal were specified, that a removal for some other and different cause was illegal; and that an incumbent could not be discharged even for the designated causes unless he had notice of the charge against him and an opportunity to be heard. InTownsend v. Kurtz, 83 Md. 331, it was decided that when an office is created by statute and it is provided that the incumbent shall hold the same for a fixed term unless sooner removed by the appointing power, such general power to remove carries with it the right to remove an incumbent before the expiration of his term without notice and without charges of misconduct. In Field v. Malster, 88 Md. 691, it was ruled that an officer appointed for a fixed and definite term could not be summarily removed without cause unless there is some express provision of law authorizing such a removal during the term.

In the case at bar we have a statute authorizing the appointment of regular policemen who "shall be subject toremoval for cause;" and the questions are, first, what is the extent or limit of their tenure when appointed; and, secondly, for what cause may they be removed? With these questions solved the legal principles already alluded to will be easily applied.

The statute fixes no other term or tenure than is included in the provision that the appointees shall be "regular policemen" who "shall be subject to removal for cause." Looking to the nature of the service to be performed — that is, to the preservation of the tranquility, the good order and the security of the community — it may well be concluded that the Legislature intended these conservators of the peace, described as regular, therefore, constant, fixed and not temporary policemen, to serve, when appointed, until removed for cause. Fixity of tenure in such positions is the tendency now of an enlightened public opinion. As no definite number of years was named for these regular policemen to hold and as no other contingency was designated for the termination of their service than a removal for cause, it necessarily follows that when once appointed they are entitled to continue in office until removed therefrom for cause. A removal for cause is, therefore, the only limitation fixed by the statute to their tenure. This being so an appointment is in legal effect an appointment during good behavior, or so long as the appointee is competent to discharge the duties of the office or efficient in the performance of them. The term is not, therefore, indefinite, nor is it determinable at the mere will of the appointing power. True the term may be put an end to, but when terminated it must be terminated for cause. An Act of the Legislature of Maine established a Board of Police Commissioners in Biddeford with "authority to appoint, established and organize the police force of said city, including the Marshal and deputy Marshal, and to remove the same forcause, c." The Board of Police Commissioners removed one Andrews from the force. No charge or complaint had been made against him and no notice was given to him of the pendency of any proceeding for his discharge until after he was actually removed. Upon a petition for a writ of certiorari praying that the Police Commissioners be required to certify up to the Supreme Judicial Court their records respecting the removal of the petitioner, so that so much thereof as was illegal might be quashed, it was held that: "The manifest purpose of the Act was to create a police force not subject to change from the result of recurring elections, but with a tenure to be cut short only for cause. That means cause affecting the individual to be removed * * * * The board was only authorized to remove for cause, and such removal is a judicial act to be made only upon notice and hearing." Andrews v. Police Board, c., 94 Me. 68 (46 A. 801).

As the tenure of the policemen appointed under the charter of Hagerstown can be cut short only "for cause," it is clear that it cannot be terminated without cause. The phrase "for cause" does not mean the arbitrary will of the appointing power, for that might be the outgrowth of mere whim, caprice, prejudice or passion, which would, in reality, be no cause at all. But the phrase "for cause" must mean some cause affecting or concerning the ability or fitness of the incumbent to perform the duty imposed upon him. "The cause must be one affecting the officer's capacity or fitness for the office." 21 Am. Eng. Ency. L. (2nd ed.) 850. Hence it must be inefficiency, incompetency or other kindred disqualification. This being the case the appointee does not hold at the will of the appointing power, and the doctrine laid down in State ex rel., O'Neill v. Register, and in Townsend v. Kurtz, supra, does not apply. When the right to remove can be exercised only for specific cause, or for cause generally, the appointing power cannot arbitrarily remove the officer, and where the removal is to be had for cause the power cannot be exercised until the officer has been duly notified and an opportunity has been given him to be heard in his own defense; 19 Am. Eng. Ency. L. (1st ed.) 562G and note 5, or, as tersely put by the Supreme Court of Missouri: "Where the appointment is during good behavior, or where the removal must be for cause, the power of removal can only be exercised when charges are made against the accused, and after notice, with a reasonable opportunity to be heard before the officer or body having the power to remove. Gaskin's case, 8 T.R. 209; Field v. Com., 32 Pa. St. 478; State v. Bryce, 7 Ohio St. 82;Dill. Mun. Corp., 3rd ed., secs. 250-254;" State ex rel.,Dennison v. City Council St. Louis, 6 West. Rep. 464.

Holding as we do that an appointment which can be terminated only for cause is not an appointment at will, but is, on the contrary, for a definite term, it follows on the authority ofMiles v. Stevenson, and Field v. Malster, supra, without reference to the other cases just above cited, that the appellee was entitled to notice of the charges preferred against him and to an opportunity to be heard. As no such notice or opportunity was given, the removal of Williams was unauthorized and he is entitled to be restored to his office.

But it has been insisted that the appellee was really discharged for inefficiency, and that inasmuch as for the same cause he could even after being restored to his office be again removed upon notice and hearing, the writ of mandamus ought not to be issued, because if issued it would be in the end unavailing and nugatory. The case is not before us on the merits. We have considered only the questions raised by the demurrer, and we have no right, for the reasons heretofore given, to examine the evidence set forth in the record. We cannot, therefore, know for what reason Williams was removed. If he was in fact inefficient he should still have had an opportunity to be heard. If he be inefficient he can be removed upon proper proceedings being instituted wherein he may have an opportunity to be heard in his own defense on the charges preferred against him. The order appealed from will, for the reasons herein assigned, be affirmed, but without prejudice to the right of the Street Commissioners to proceed in a proper way upon charges preferred and a hearing had to exercise the power of removal for cause.

Order affirmed with costs.

(Decided January 15th 1903.)