dissented and delivered the following opinion :
Notwithstanding the high esteem in which I hold the judgments of my learned brothers, I am unable to concur in their conclusions in this case, and it is proper that I should give the reasons for my dissent. We agree in everything except the proper construction of the charter of Baltimore City, contained in Article 4 of the Code of Public Local Laws, and the extent to which the Acts of 1817, ch. 148, and of 1828-9, 114, should control that construction.
This Court has, in several cases, considered the effect of the omission of Acts and parts of Acts from the Code of Public General and Public Local Laws, and laid down the rules by which the Code should be construed. In the case of the Mayor, &c., of Frederick v. Groshon, 30 Md. 443, the controversy related to the Act of 1847, ch- 224, which authorized the Mayor, Aldermen and Common Council of Frederick City to open and widen Carroll Creek, in that City. The Act was not included in the Code of Public Local Laws, title Frederick County, and it was contended that, being a franchise, it was still operative, notwithstanding the omission. Judge Alvey, in denying this contention, said : “ It would involve the necessity of constantly examining the great multitude of Public Local Acts, in regard to the municipal corporations of the State, in the scattered and disconnected form in which they originally passed, and the doubt and controversy would be endless, as' to what were the rights and privileges of such corporations *252existing at the adoption of the Code. The object * * * was to arrange and simplify the whole body of the statute law of the State, and the Legislature, in adopting it as a substitute for all the Public General and Public Local Statute Laws then existing, plainly intended an entire repeal of all such statutes of that character, then on the statute books, as were not embraced in the codification ; for otherwise, instead of simplification, the greatest confusion would ensue.” In case of Johns v. Hodges and wife, 33 Md. 523, Judge Stewart, delivering the opinion of the Court, said : “The Legislature designed to preserve all that was needful, and to discard what was obsolete or inapplicable, and relieve the statute book from all useless matter.” “ Where its language is the same as that of any antecedent law, the well-established construction is to be regarded. If the terms are substantially different, they must have their plain and obvious interpretation, and not be strained to conform to previous legislation.” It “is to be understood and expounded according to the law establishing it, as a substitute, and such meaning must be given the language employed as a just construction will warrant.” Again, in the case of the. Western Maryland College v. McKinstry, 75th Md. 189, in which the omission of the second section of the Act of 1884, ch. 293, relating to the execution of wills from the Code of 1888, was passed upon this Court through the present learned and distinguished Chief Justice, said : “ If the statute law of Maryland had stood, at the date of the death of Miss McKinstry, as it did stand before, and for more than five years after the execution of her will, that paper would have been admitted to probate as a valid will of personal property.” * * * * “ But, in the recent codification of the law, the second section of the Act of 1884, which carefully and liberally protected from the operation of the Act all wills made prior to August first, 1884, was omitted, and is, consequently, no longer the law of the land.” Having these decisions in view, let us examine the Acts of 1817, ch. 148, sec. 2, and of 1828-9, ch. 114, and see how far *253they have been incorporated into Art. 4, Code of P. L. L., and are now a part of the charter of Baltimore City, and how lar they have been “ repealed,” “ discarded as obsolete,” and, by its adoption, “ are no longer the law of the land.”
The second section of the Act of 1817 provides that the annual session of the City Council shall begin on the first Monday in January; that two-thirds of each branch shall be a quorum to do business ; that all persons holding offices under the corporation shall hold during the pleasure of the Mayor, unless otherwise provided for by Acts of Assembly, or by ordinances of the city, and then proceeds as follows : “ And the Mayor of the city shall nominate, and by and with the advice and consent of a convention' of the two branches of the City Council, shall appoint all officers under the corporation, except the Register of the city, and the clerks employed by the city, or under their authority.” The Act of 1828—9, ch. 114, which was passed as a supplement to the Act of 1817, and in accordance with a joint resolution of the Mayor and City Council, requesting that the charter be so changed as to empower the corporation to pass ordinances “regulating the manner” of appointing city officers, is as follows: “That the Mayor and City Council of Baltimore may pass ordinances regulating the manner of appointing persons to office, under said corporation, which they are now or may hereafter be authorized by law to appoint, anything in the second section of the Act to which this is a supplement to the contrary notwithstanding.” Section 30 of Art. 4 of the Code of Public Local Laws, title Baltimore City, reads as follows : “ They may pass ordinances regulating the manner of appointing persons to office under the corporation which they are or may be authorized by law to appoint, but, unless such ordinances be passed, the Mayor shall nominate and by and with the advice and consent of a convention of the two branches of the City Council, shall appoint all officers under the corporation, except the Register,” &c.
A careful comparison of these Acts of Assembly with *254each other, and with the Code will show that, after the passage of the Act of 1828—9 the power of appointment to office under the corporation, was taken from the Mayor and transferred to the corporation, in obedience to the request of the Mayor and City Council; and (2) that, by the adoption of the Code, the charter was entirely changed, by the omission of all authority in the Mayor to appoint persons to office, except in- the event that ordinances were not passed “ regulating the manner ” of their appointment. The first of these propositions is conclusively proven by the language of the Act of 1828-9, which authorized the “Mayor and City Council of Baltimore ” to pass ordinances “ regulating the manner of appointing persons to office under said corporation—meaning thereby the corporation whose name is the Mayor and City Council of Baltimore. As was well said by the learned Judge below, “ If it was intended by the Legislature that they should each, or either, continue to be necessary constituents in the act of appointment, what possible purpose was there in the passage of the Act? ”
The second of these propositions is proven by the addition in the Code of the words “ unless such ordinances be passed, the Mayor shall nominate, and by and with the advice and consent of a convention of the two branches of the City Council, shall appoint all officers under the corporation, except the Register,” &c. The addition of these words made an entire change in the charter of Baltimore City, so far as the Mayor’s power of appointment of persons to office was concerned, by omitting therefrom the’ positive and unequivocal authority to make such appointments, and limiting it to the contingency of a failure on the part of the corporation to “ pass ordinances regulating the manner” of making them. The Act of 1817, ch. 148, having been repealed by the adoption of the Code, cannot be revived by construction. Pingree v. Snell, 42 Maine, 53; 1 Pick. 45; 23 Am. & Eng. Ency. Law, 487, and cases there cited. Any other construction would render the change made by the Legislature meaningless, and operate *255as a judicial reconstruction of section 13, by excepting from its provisions all ordinances relating to the making of appointments to office. The cases of State v. Popp, 45 Md. 432; Maurice v. Worden, 52 Md. 204, and Dorsey v. Garey, 30 Md. 499, do not conflict with this construction. In Popp’s case, 45 Md. 433, it was merely decided that, in construing the Code, all parts in pari materia must be read together, regardless of the heading under which they are found, and, in the other cases, where the meaning of the original Act was looked to, the language in the Code was either identical, or substantially the same as that in the original Acts, and they come fully within the canons of construction laid down by Judge Stewart in the case of Johns v. Hodges and wife, 33 Md. 523.
But, it is claimed that the power to regulate ‘ ‘ the manner of appointing persons to office” does not include the power to make the appointment, because that would destroy the right of a constituent element thereof (the Mayor) to participate in such appointment, and the cases of State v. Mott, 61 Md. 297; State v. Whitman, 80 Md. 410; Brown v. O'Connell, 36 Conn. 432, and Graham v. Grogan, 26 Atl. 697 (155 Pa. St.), are relied upon as supporting this contention. In the case of Brown v. O’Connell, the statute under consideration was in contravention, not of some supposed or inferential restriction, but of the express, positive, mandatory provision of the Constitution of Connecticut. In Mott’s case, 61 Md., and Whitman’s case, 80 Md., the ordinance, or statute, under consideration was an absolute inhibition of a particular thing, such as the reducing to lime of any oyster shells within the limits of Baltimore City, and the sale- of any liquor in the Seventh District of Dorchester County. These are vastly different from the case under consideration. The ordinance in this case does not prohibit directly or indirectly, the levy and collection of taxes, nor does it in any particular cripple the machinery for collecting them. The same breath that repeals re-enacts with full force and vitality, and these cases are, therefore, *256clearly distinguishable from the one under consideration. By the charter of the city of Wilkes-Barre the power of the corporation is vested in the corporate officers, the Mayor being one of them. He was a constituent element in the exercise o.f the powers granted by the charter, and the ordinance under consideration, in Graham v. Grogan (26 Atl. Rep. 697—155 Pa. St.), having denied him his right to participate in the appointment of the officers therein mentioned —not being the act of the depositoiy of the power—was declared invalid by the Supreme Court of Pennsylvania.
The charter of Baltimore City vests no such power in the Mayor. Whatever power he possesses is not inherent in the executive office, but must exist, if at all, by virtue of the authority conferred upon him by the sovereign power, to-wit, the Legislature. Meech. on Pub. Off. secs. 108—109.
There is no inhibition in this State which prevents the legislative branch of the government from exercising the power of appointment to office. This question was before this Court and expressly decided in the case of The Mayor, &c., v. The Board of Police, 15 Md. 376. It was urged in that cáse that the Act of Assembly violated Art. 6 of the Declaration of Rights, which declared that the Legislature, executive and judicial powers ought to be kept separate. In denying this contention, Judge Tuck said: We are not prepared to admit that the power of appointment to office is a function intrinsically executive ” * * * * “namely, that it is inherent in and necessarily belongs to the executive department. And Judge LeGrand, in an able and exhaustive concurring opinion, quoting Crane v. McGinnis, 1 G. & J. 472, said: “ The legislative department is nearest the source of power, and is manifestly the predominant branch of the government.” Cities and counties are but local divisions of the State, organized for the more economical administration of the government. Every power they possess could be exercised by the Legislature. (Daly v. Morgan, 69 Md. 467). In the absence of a charter for Baltimore City, the Legislature could levy all taxes, ap*257point all officers and provide for everything necessary to govern the city. Not choosing to do this, it has granted a charter to " the inhabitants of Baltimore,” by the name of “ The Mayor and City Council of Baltimore,” and delegated to them, as a corporation, all the powers it possessed that were necessary to an efficient government of the city— among which was the legislative authority to create offices, and the power of controlling (regulating) “ the appointment of persons to office.” The corporation having the power to create offices and to regulate appointment of persons thereto, possesses all the powers of the Legislature over the subject, and that includes the powers to appoint. Mayor v. Board of Police, 15 Md. 376; Trowbridge v. Newark, 49 N. J. L. 144; Shallcross v. Bridges, 6 W. Va. 591. The donee of a power who executes it, cannot be said to have delegated it, and, in passing the ordinance declaring that the City Collector should thereafter be appointed by a convention of the two branches of the City Council, there was neither an unwarranted assumption, nor a delegation of power, but merely the exercise of the power of the State, conferred by the charter—the exercise of the legislative function of predetermining what the law shall be for the regulation of all future cases falling under its provisions. Vide, Bates v. Kimball, 2 D. Chipman (Vt.), 77; Newland v. Marsh, 19 Ill. 383; Cooley Const. Lim. (3 ed.), pp. 108-109. This construction has received the sanction of “the Mayor and City Council” since 1829. Referring to the cotemporaneous construction of the powers granted by the Act of 1829, and the Code of Pub. Local Laws, Art. 4, as evidenced by the City Code of 1893, learned Judge below said: “The different modes of appointment therein provided for, show that it has never been supposed, since 1829, that the statute law required the concurrence of the Mayor and City Council in the Act of appointment, or that each of them was a necessary constituent of the Act.” The cotemporaneous construction of the charter, of such duration, continuously practiced under, ought not to be shaken, but *258upon the ground of manifest error and cogent necessity. The power having been exercised, in the manner provided in the ordinance under consideration, from 1829 to the present time, “ought to be deemed almost conclusive evidence of its possession.” Kierstead et al. v. The State, 1 G. & J. 248; Edgerton v. Reilly, Ibid, 385; Bradford v. Jones, 1 Md. 369; State v. Mayhew, 2 Gill, 468; Harrison v. The State, 22 Md. 491.
Finally. On a former appeal between the parties to this cause (Creager v. Hooper, Mayor, &c., 83 Md. 490,) we remanded it, in order that “ the ends of j ustice might be promoted” by a trial “upon its merits.” The ordinance in question was set out in the petition and the power to pass it denied by the answer, and the question argued in the briefs and orally, at least by the appellant. With great deference to my learned brothers, it seems to me that so far as the question of ultra vires is concerned we are concluded by that decision, since there could not possibly be any “ merit ” in, nor any “ end of justice to be promoted by the drial of a case which had no other foundation than an ultra vires ordinance. I am, therefore, of opinion that the order directing the peremptory 7na7ida77tus to issue should be .affirmed.
{Filed December 3rd, 1896).
JK. motion fora re-argument was subsequently made, and in 'disposing of it,
McSherry, C. J., delivered the opinion of the Court.
We have carefully considered the elaborate brief mailed to us before being filed in support of the motion made for a re-argument of this case, but we fail to discover any reason why the motion should prevail. There is no occasion for a re-statement of the. grounds upon which the conclusion reached by a majority of the Court was founded, but inasmuch as it seems to be supposed that we ignored the pro-visions of the Code of Public Local Laws and founded our *259judgment upon antecedent Acts of Assembly alone, it may not be amiss to remove this misapprehension. What we did, was to construe a particular section of the Local Code, which was not new legislation, by referring back to, and ascertaining the meaning of, the original Acts of Assembly that were compressed and consolidated in that section. This is a perfectly familiar method of construction, often followed by this and by other Courts, and is in no way at variance with the case of Mayor, Aldermen, &c., of Frederick v. Groshon, 30 Md. 436, and others of that type relied on in the brief. The case at bar and the case in 30 Md. are as wide apart as the extremities of the earth’s axis. In Groshon’$ case it was insisted that a public local Act of Assembly relating to the municipality of Frederick and passed long before the Code of 1860 was adopted but not incorporated in that Code when it went into effect, was still in force after the Code became operative, and was in force in spite of the declaration of the Legislature that all Public General and Public Local Laws not included in the Code were repealed. It was held that the Local Act was repealed because not included in the Code—the Code having superseded all other Public General and Public Local legislation. But in this case there is no such condition. Both the Acts of 1817 and 1828 are incorporated in section thirty of Article four, of the Local Code, and there is no question of repeal involved at all—the sole question being one of construction, or as to the meaning of a statute confessedly in force. In the Groshon case the effort was to rescue a statute from repeal. In this it is to ascertain the meaning of an unrepealed statute.
It is also contended that the decision by this Court in June last upon the record then brought up between the same parties, practically conceded the power of the City Council to pass the ordinance we have pronounced ultra vires and consequently invalid. And it is suggested that unless this Court had then supposed that the City Council possessed the power to enact the ordinance as actually *260passed we would not have sent the case back for a hearing on its merits. But it was precisely because the case was not then before us on the merits, and precisely because the construction of the statute was not involved on the former appeal that this ultra vires question was not at that time considered or passed upon. Indeed, in the opinion filed in June we were careful to say: “The merits of the controversy have never been passed on by the Court nor has the case ever been in a condition that they could be passed tipon. * * But in remanding the case it is proper to say that the questions involved are either those touching the passage or existence of an ordinance, or questions resulting therefrom, &c. * * For these reasons the case will be femanded that it may be tried on its merits.” Had we stepped out of our way to decide a question not discussed by the counsel for the Mayor because not included in the interlocutory and technical point of pleading then solely before us, or to determine the merits, when we explicitly declared that the merits were not before us for adjudication at all, we would have departed widely from the settled policy of this Court, and we would have clearly exceeded the prescribed limits of our jurisdiction as an appellate tribunal.
We do not deem it necessary to pursue the subject further and we merely add, in conclusion, that we are authorized by Judge Roberts and Judge Boyd to say for them, that though they did not sit during the oral argument of the case, they have examined the question of ultra vires and fully concur in the conclusion reached by the Judges who united in the majority opinion.
The motion for a re-argument is overruled.
Motion overruled.
(Decided January 7th, 1897).