Mayor of Baltimore v. O'Neill , 63 Md. 336 ( 1885 )

Ritchie, J.,

delivered the opinion of the Court.

The appellee, a foreman of an engine company in the Eire Department of Baltimore City, was dismissed by the Eire Commissioners from the service of the department for disrespect to his superior officers. He was paid his salary in full, to the date of his dismissal. In April, 1882, he applied to the Court of Common Pleas for a mandamus upon the commissioners to restore him to his place, and to pay him the salary thereof for the period subsequent to the dismissal. The mandamus was refused, and on appeal the order of the Court below was affirmed. The case, as presented and decided in this Court, is reported in 59 Md., 283.

The questions presented and passed upon in that case are substantially decisive of this. The material issue in the mandamus case was whether or not the action of the Eire Commissioners was conclusive under the city ordinances conferring the power of removal on those officers. After quoting the ordinance, this Court said :

“ It is very plain that this clause of the section confers on the Eire Commissioners the power of appointment, coupled with the sole power of determining whether such appointees are of good character, as the law requires-them to he; and also the sole discretion with respect to their efficiency in the service, and whether they evince proper willingness to discharge their duty ‘ harmoniously with their associates.’ Whether they do so discharge their duties satisfactorily to the Eire Commissioners, no one hut the Eire Commissioners can possibly determine; for no one can read their own minds but themselves. The next clause puts a seeming restraint on the Fire Commissioners, in that it forbids the removal of any person ‘ on account, of political, religious or other sentiments entertained by them;’ hut this inhibition is only operative so long as such opinion does ‘not interfere with the faithful and efficient discharge of their duties as employes of the Eire Department.’ And inasmuch as the Eire Commissioners, are the sole judges of the efficient and faithful discharge of duty, which the ordinance prescribes shall he satisfactory to them, this inhibitory clause does not operate so as to abrogate their discretion and judgment as to that matter, and to create a test which is to be judged of and determined by another tribunal. . It is plain that it is their judgment and discretion which is to he exercised, a.nd that it is subject to the revision or correction of no other jurisdiction. The object to be attained by such department; the promptness with which it must act to meet the exigencies of a ravaging fire; the instant obedience "with which its employés should respond to orders, to the end that property and life might be saved; made it necessary that such judgment and discretion, as is contemplated by this ordinance, should be lodged somewhere, and forbade provision for formal charge, notice and trial, before an inefficient or insubordinate employé should he discharged, and an efficient and subordinate one should he substituted. Such requirement would seriously endanger the successful working of the department. It would abridge, if it did not destroy, its efficiency. It was not intended that such an obstacle should he in the way of an organization for the suppression of fires, which must be expeditious in order to be efficient.”

It is apparent from the position thus taken by this Court as to the conclusiveness of the action of the Fire Commissioners in removing the appellee, as a matter resting solely in their discretion and judgment, that the Mayor and City Council cannot be held responsible for their determination, hut the commissioners alone must answer for the want of good faith, if any exist, in dismissing their appointees ; and it follows from this, that if there he no arrears of salary at the time of dismissal, any wrong fione by tbe commissioners must be redressed by an action of damages against them, and not the city. Their right of removal being absolute, the discharged employe ceases to be an incumbent of the position, and can no longer sustain a demand for salary as such, however its subsequent loss may enter as an element into the damages to he recovered of the commissioners for fraudulent or illegal conduct in his removal. This is plainly indicated in another part of the opinion first quoted from. The language of the Court, is

“If he has been illegally discharged from the service of the Eire Commissioners, and has not been paid his salary, his remedy is at law. If the Eire Commissioners have wilfully, maliciously or dishonestly exercised the power to remove him, they are answerable for their corrupt action.”

This principle of responsibility, in regard to the class of municipal officers to which the commissioners belong, has been expressly announced in the case of Boehm and Loeber vs. Mayor, &c., 61 Md., 261. That was a case arising under an ordinance adopted in pursuance of the power conferred to pass ordinances to preserve the health of the city, and prevent and remove nuisances. It provides that persons obtaining licenses to clean privy-vaults shall be subject to the orders of the Board of Health, and that for any refusal or neglect to obey such orders it shall he the duty of the comptroller, upon the written request of the commissioner of health, to revoke the license of the person so refusing or neglecting to obey. The comptroller having revoked the license of plaintiffs upon the written request of the Health Commissioner, the plaintiffs sued for damages on the ground that the defendant-, without just or legal cause, suspended and revoked their license. This Court, in the appeal of that case, said :

“If the Commissioner made the request or complaint maliciously, or without just grounds' therefor, and the plaintiffs have been damnified thereby, the corporation cannot he made responsible for such misconduct on his part. The power to pass health ordinances like these, is derived from what is known as the police power of the State, and it was delegated to he exercised, not for the benefit or in the interest of the city in its corporate capacity, but for the public good. Commissioners and other officials acting under such ordinances and enforcing such regulations, perform duties and occupy positions similar in legal effect to that of police officers, and it is well settled that such officers appointed by a city are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties. Accordingly, it has been held that a city is not liable for an assault and battery committed by its police officers, though done in an attempt to enforce an ordinance of the city, nor for an arrest made by them which is illegal for want of a warrant. 2 Dillon on Mun. Corp., sec. 975.” And, as sustaining this position, with direct reference to the fire department of a city; see the succeeding section in Dillon; Hafford vs. City of New Bedford, 16 Gray, 297; Weightman vs. The Corporation of Washington, 1 Black, 39, 49, and Fisher vs. Boston, 104 Mass., 87.

(Decided 12th March, 1885.)

With these views of the principles underlying this case, we think the demurrer of the defendant should have been sustained. As in our opinion no right of action is disclosed against the appellant, it is unnecessary to consider the rulings on the prayers.

Judgment reversed.