Mayor of Baltimore v. Lyman , 52 L.R.A. 406 ( 1901 )

The question in this case being one of public importance and being a matter affecting the Public School System of Baltimore City, we announced our decision in the case shortly after the argument in a per curiam order. We will now state the reasons for the conclusion reached by us at that time.

It is admitted that the record of the case presents but a single question of law for our consideration and that is, whether the Superintendent of Public Instruction in the City of Baltimore is a municipal official, within the meaning and intent of the city charter.

The twenty-sixth section of the charter (Acts of 1898, chapter 123), provides that no person shall at any time hold more than one office yielding pecuniary compensation under the Mayor and City Council of Baltimore. All municipal officials, except females, shall be registered voters of the city of Baltimore.

The facts of the case are few and are not disputed. Briefly stated they are as follows: The Board of School Commissioners of Baltimore City, in pursuance of the power conferred on it by sec. 100 of the city charter, appointed Mr. James H. Van Sickle, Superintendent of Public Instruction, to take effect from the first day of July, 1900. At the time of Mr. Van Sickle's appointment and of the filing of the bill in this case, he was not a registered voter of the city of Baltimore. The bill is filed by a resident and taxpayer of Baltimore City, to enjoin the Mayor and City Council of Baltimore, the comptroller and the Board of School Commissioners, from paying his salary, for the reason that not being a registered voter of the city, he was not eligible to the position to which he had been apponted. The determination of the question depends upon an examination of the charter itself and the ascertainment of what persons the Legislature intended should be included in the use of the term "municipal official" in section 26 of chapter 123 of the Acts of 1898, (City Charter.)

It appears from an examination of the charter that the expression "municipal officials" is used to describe the heads of departments, heads of sub-departments and municipal officers not embraced in a department, and is not applicable to employees of these several departments. By section 25 of the charter, the Mayor has the sole power of appointment of all heads of departments, heads of sub-departments, municipal officers, not embraced in a department, subject to confirmation by the Second Branch of the City Council, except where otherwise provided by the charter. The City Comptroller and Surveyor are elected by the people, and the City Register and Public Printer are appointed by joint-convention of the two branches of the Council. Secs. 33, 35, 205 and 208.

The appointment of the other city officials is provided by the 28th section which reads "that the heads of departments, heads of sub-departments, municipal officers not embraced in a department and all special commissions or boards shall have the sole power of appointment and removal at pleasure of all deputies, assistants, clerks and subordinate employees employed by them, unless otherwise provided for."

Now under the charter, sec. 100, the Superintendent of Public Instruction and his assistants are appointed by the Board of School Commissioners, the head of the Department of Education, and the qualification there prescribed is, "that the superintendents shall all be persons of education and experience in the management of schools, and they shall be not less than twenty-five years of age at the time of their appointment and shall discharge the duties herein prescribed and such other duties as the said board may direct."

It appears, then, from the aforegoing sections of the charter, that the Superintendent of Public Instruction is not appointed by the Mayor, or joint-convention or elected by the people, but is appointed by the Board of School Commissioners, the head of the Department of Education, and is an employee of this department of the city government.

JUDGE COOLEY, in the case of Throop v. Langdon, 40 Mich. 683, where it is held that the position of chief clerk in the office of the assessors of the city of Detroit was not an office, says, "The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance in office, and usually, though not necessarily, in the tenure of his position. In particular cases other distinctions will appear which are not general." InOlmstead v. Mayor, c., of N.Y., 42 N.Y. Sp. Ct. Reports, 482, it was held that one who receives no certificate of appointment, takes no oath of office, has no term or tenure of office, discharges no duties, and exercises no powers depending directly on the authority of law, but simply performs such duties as are required of him by the persons employing him and whose responsibility is limited to them, is not an officer and does not hold an office. And in the recent case of SchoolCommissioners v. Goldsborough, 90 Md. 207, we said: Civil officers are governmental agents, they are natural persons in whom a part of the State's sovereignty is vested or reposed, to be exercised by the individuals so entrusted with it for the public good. The power to act for the State is confided to the person appointed to act. It belongs to him upon assuming the office. He is clothed with the authority which he exerts and the official acts done by him are done as his acts and not as the acts of a body corporate.

In the case now before us we find that the Superintendent of Public Instruction is not appointed by the Mayor, or elected by the people, or appointed by joint-convention of the two branches of the Council. He takes no official oath, gives no official bond, has no commission issued to him, and has no fixed or definite tenure of office, but is appointed at the pleasure of the School Board. It also appears from an examination of the charter, that all the executive power, relating to educational matters is vested in a department known as "the Department of Education" and this department is composed of the Board of School Commissioners. The Superintendent of Public Instruction exercises no power except what is derived from and through this board. He is simply, then, an employee or the agent of the School Board and not a municipal official, within the meaning of the charter.

Nor do we find anything in the duties to be performed by him which indicate an office and not an employment within the meaning of the 26th section of the charter. In State ex-Rel, AttorneyGeneral v. Vickers, 58 Ohio State Reports, 730, it is held that a Superintendent of Schools is not an officer. Butler v.Regents, 32 Wis. 131; United States v. Germaine, 99 United States, 501.

We are, therefore, all of the opinion that section 26 of chapter 123 of the Acts of 1898, providing that all municipal officials, except females, shall be registered voters of the city of Baltimore has no application to the position of Superintendent of Public Instruction.

It follows, then, that the order of the Court below, overruling the demurrer to the bill will be reversed, the demurrer sustained and the bill dismissed.

Order reversed, demurrer sustained and bill dismissed, withcosts.

(Decided per curiam October 12th, 1900. The foregoing opinion was filed February 8th, 1901.)