MARYLAND ACTION FOR FOSTER CHILDREN, INC. ET AL. v. STATE OF MARYLAND ET AL.
No. 5, September Term, 1976
Court of Appeals of Maryland
Decided January 7, 1977
Mоtion for reconsideration filed February 4, 1977; denied February 18, 1977.
Richard S. Kahn for appellants.
Amicus curiae brief filed on behalf of the President of the Senate of Maryland and the Speaker of the House of Delegates of Maryland, acting jointly on behalf of the Policy Committee of the General Assembly of Maryland, H. Vernon Eney and Judith A. Armold on the brief.
ELDRIDGE, J., delivered the opinion of the Court. MURPHY, C. J., and SMITH and DIGGES, JJ., dissent and MURPHY, C. J., filed a dissenting opinion in which SMITH and DIGGES, JJ., concur at page 153 infra. SMITH, J., filed a dissenting opinion in which MURPHY, C. J., and DIGGES, J., concur at page 163 infra.
This case presents questions involving the budget and appropriation provisions of the Maryland Constitution.
The particular dispute here concerns payments for the foster care of children under two separate programs maintained by the State of Maryland. One program, pursuant to
Notwithstanding the provisions of
During the 1975 legislative session the Senate passed a resolution, Senate Resolution No. 109, which referred to
Thereafter, the “Maryland Action for Foster Children, Inc.,” an association involved in the “promotion of an effective foster care program for children without parents,” and several individual foster parents, brought this suit in the Circuit Court for Baltimore County against the State of Maryland, the Governor, the Comptroller, the Treasurer, and the Secretary of Budget and Fiscal Planning. The plaintiffs sought a writ of mandamus ordering the defendants to pay all foster parents in the State of Maryland who were providing boarding care for foster children no less than the minimum sum mandated by
The circuit court, after a hearing and after rendering an opinion, denied the motion raising preliminary objection but sustained the defendants’ demurrer without leave to amend. The circuit court in its opinion held that Ch. 867 of the Acts of 1974, adding new
The plaintiffs apparently recognize that if
The President of the Maryland Senate and the Speaker of the House of Delеgates, on behalf of the Policy Committee of the General Assembly, have filed a brief as Amicus Curiae, taking essentially the same position as the plaintiffs do in this Court.
The defendants agree that
Preliminarily, we agree with all of the parties that
Consequently, the circuit court erred in holding that
The issue in this case, therefore, comes down to whether the Governor has a mandatory duty, in the preparation of future annual budgets, to provide sufficient funds for compliance with
“Each Budget shall embrace an estimate of all appropriations in such form and detail as the Governor shall determine or as may be prescribed by law, as follows: (a) for the General Assembly as certified to the Governor in the manner hereinafter provided; (b) for the Executive Department; (c) for
the Judiciary Department, as provided by law, certified by the Comptroller; (d) to pay and discharge the principal and interest of the debt of the State in conformity with
Section 34 of Article 3 of the Constitution , and all laws enacted in pursuance thereof; (e) for the salaries payable by the State and under the Constitution and laws of the State; (f) for the establishment and maintenance throughout the State of a thorough and efficient system of public schools in conformity withArticle 8 of the Constitution and with the laws of the State; (g) for such other purposes as are set forth in the Constitution or laws of the State.”
“The estimates for the Legislative Department, certified by the presiding officer of each House, of the Judiciary, as provided by law, certified by the Comptroller, and for the public schools, as provided by law, shall be... included in the Budget without revision.”
The Governor is required by
The heart of the executive budget system is
If the Legislature desires to make other appropriations, it must do so in accordance with
The historical background of
“It was customary, under the former method, for the Governor to appear in person before a joint meeting of the members of the House of Delegates and the Senate, at the beginning of every regular session of the Legislature, and to address them on ‘the condition of the State,’ in the course of which he was expected to direct their attention to the essential needs of the State, and to specifically recommend to their consideration such measures as he judged necessary. Having thus discharged the responsibility imposed upon him by the Constitutiоn, the Governor must thereafter await the final disposition of his recommendations by the Legislature, whose members were free to adopt, alter or entirely ignore any or all of them, except in so far as the Governor, by virtue of his prestige and his influence with the members of the Legislature, might affect the course of his recommendations through the Legislature.
“It is true, the Governor then had the ‘power to disapprove of any item or items of Bills making appropriations of money’ and to thus void the items which he disapproved. However, his use of this veto
power on individual items had to be exercised with rare discrimination and with an intimate understanding of the temper of the Legislature, to avoid the danger of antagonizing powerful groups in the Legislature, and thereby jeopardize all of his recommended measures. Consequently, he was ever conscious of the fact that, in addition to the complete discretion vested in the Legislature in its consideration of his proposals, it also could ‘proceed to reconsider’ and repass, any of the vetoed items, by the affirmative vote of ‘three-fifths of the members elected’ to each ‘House,’ viz: The House of Delegates and the Senate.
“The power to fix the fiscal policies and determine the course of the fiscal operations of the State was, therefore, exclusively vested in the Legislature, subject only to the mild restraint of the limited veto powers of the Governor, and whatever power of persuasion he might be capable of exercising with individual members of the Legislature.
“The old method often witnessed ‘log-rolling’ or ‘you help me and I‘ll help you’ tactics among many of the members of the Legislature in their efforts to insure passage of the particular appropriations in which they had some selfish or political interest. It was not unusual for excessive appropriations to result from such tactics and also from the pressure of political and professional lobbyists; and, almost as frequently, some of the most important activities or needs of the State were either overlooked or sadly neglected in what was commonly termed, the ‘Pork Barrel’ scramble.
“The present Budget System, which is technically known as the ‘State Executive Budget System,’ was designed to correct these conditions, and to impose upon the Governor the primary rеsponsibility of controlling the fiscal policies and operations of the State.”
“In common with other states of the Union, Maryland less than four decades ago had no orderly system of planned public expenditures. Appropriations for various purposes were made piece-meal by the General Assembly, each project receiving independent consideration without relation to other claims upon the public purse. In earlier times, when the range and scope of state activities were limited, this planless procedure was not seriously objectionable, for it was nevertheless not impossible for members of the legislature to have a fairly clear grasp of the state‘s fiscal operations. Eventually, however, with the growth in the size and complexity of governmental programs and machinery, embarrassing deficits occurred. A particularly disturbing experience of this nature happened in the year 1915, when there was a deficit of $2,000,000 in the State Treasury.”
In 1915, a Commission, designated “The Commission on Economy & Efficiency on the Budget Systеm,” was appointed to submit recommendations with regard to the fiscal problems of the State. The Commission, known as the “Goodnow Commission” because of its chairman, Dr. Frank J. Goodnow, president of the Johns Hopkins University, submitted in 1916 a report and proposed constitutional amendment, which are printed in the Journal of Proceedings of the Senate of Maryland, for the Legislative Session of 1916, pp. 129-134. That proposed amendment, after adoption by the General Assembly and ratification by the voters, became
The Goodnow Commission‘s report reveals that the proposed executive budget system was designed to bring about a fundamental change in State appropriations. The report stated (Senate Journal, supra, pp. 130-131):
“The present excess of expenditures over receipts,
which has resulted in the large accumulated deficit, is ample proof of the proposition that the methods of making appropriations now in force are defective.”
The major changes which the Commission recommended, and which are embodied in
“Our thought in drafting the proposed amendment has been:
“First — To impose upon the Governor the sole responsibility, within the limits of the Constitution and the provisions of existing law, of presenting to the Legislature a complete and comprehensive statement of the needs and resources of the State....
“Secоnd — To make it impossible for the Legislature so to change the plans proposed by the Governor as to produce a deficit; but
“Third — To permit the Legislature to make provision for any purpose not included in the Governor‘s plan on the condition that it provide also for the revenue which the accomplishment of its purpose necessitates.”
The Commission deemed the limitation upon the Legislature‘s authority over the Governor‘s proposed Budget “fundamental in our judgment for a sound budget system.” (Id. at 130.) The report went on (id. at 131):
“The most difficult problem in connection with the formulation of a budget plan which presented itself to the Commission was the determination of the powers of the Legislature relative to the estimates to be submitted by the Governor to the Legislature. It was recognized that the weakness of all American financial methods, in the Congress of the United States, as well as in the Legislatures of the separate States, was to be found in the practice to which all American legislative bodies are
addicted of adding either to the amounts demanded by the administrative departments, or to the items for which appropriations were asked.”
While it was intended that the Legislaturе also have authority to initiate appropriations, the Commission‘s report made it clear that the Legislature should assume responsibility for providing the revenue for such appropriations initiated by it (id. at 131-132):
“The Commission feels, however, that a broader latitude should be given a legislative body in financial matters... provided the latitude so given cannot be used in such a manner as to produce a deficit in the State‘s finances.
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“For these reasons the Commission is of the opinion that it is advisable to give the Legislature the power to initiate appropriations for objects for which the Governor has made no estimates. The Commission feels, however, that it is necessary to prevent the recurrence of deficits in the finances of the State, and to fix the responsibility of any derangement of the financial plans of the Governor. It has accordingly framed the proposed constitutional amendment in such a way as to permit the Legislature... to appropriate money for a purpose not included in the Governor‘s estimates, on the condition that provision is made in the act of appropriation for the levy of a tax sufficient in amount tо defray the expenses necessitated by such act of appropriation.”3
The plaintiffs’ position in this case cannot be squared with
Moreover, a holding that the Governor, in the preparation and submission of the Budget and Budget Bill, has a mandatory duty to comply with all spending levels fixed by ordinary statutes, is inconsistent with
addition, Report of the Constitutional Convention Commission (1967), pp. 225-240; The Maryland Budget System, Being the First Interim Report by the Commission on Administrative Organization of the State of Maryland (1951); Report of the Maryland Commission on the Distribution of Tax Revenues (1946), pp. 11-13; Note, 28 Md. L. Rev. 395 (1968).
In McKeldin v. Steedman, supra, 203 Md. at 99-101, a section of a Supplementary Appropriation Bill providing that generаl funds be used for the appropriation, and directing the Governor to include in his annual budget a sufficient amount for that purpose, was held unconstitutional. The Court in that case pointed out that there were two reasons for the requirement in
“However, the use of general funds to defray the supplemental appropriation is not what the Constitution contemplates or permits. Calling on the Governor, as Section 9 does, to cover the supplemental item by general funds is not what the Constitution allows. Section 9 evades and frustrates the constitutional mandate for the levy and collection of an annuаl tax for this purpose.
“The earnest debate of counsel as to whether Section 9 relates to surplus funds only or all general funds is inconclusive. If we grant for the sake of argument that Section 9 operates upon surplus funds only, it still evades the requirement of a tax to be provided in the Supplemental Appropriation law. If Section 9 be viewed as operating upon
general funds, surplus and other, it diminishes the funds upon which the Governor may rely in balancing his budget. But even more significantly, the Section attempts to circumvent the critically important constitutional requirement by shifting from the legislature to the Governor the public onus of being charged with the necessity for an additional tax.”
The same may be said with respect to the plaintiffs’ position in the instant case. If, when the General Assembly enacts an ordinary statute requiring that a program be funded at a particular level, the Governor must fund the program at that level, both purposes of
The purpose of
Finally, the view of the plaintiffs in this case overlooks the careful distinction made in
“And finally, if Chapter 576 were held valid because of section 9 [of the Budget Bill], it would mean that the governor could delegate to the General Assembly the power to fix the items and amounts of the budget bill, and the Budget Amendment would be destroyed.” (Emphasis supplied.)
The same is true here, for if the General Assembly by enacting ordinary statutes can “fix the items and amounts of the Budget Bill,” the executive budget system embodied in the Budget Amendment,
In sum,
Judgment affirmed.
Petitioners to pay costs.
Murphy, C. J., dissenting:
While I agree that Chapter 867 of the Acts of 1974 is not an appropriation bill within the contemplation of the Budget Amendment, I think the majority has fallen into grievous error in concluding that the Governor has no duty under the
The majority holds that if the General Assembly could fix by statute spending levels for particular programs which are higher than those proposed by the Governor, it would be able to increase the proposed appropriations in the Budget Bill in violation of the Budget Amendment and could result in deficit spending inconsistent with the constitutional requirement for a balanced budget. To permit this, according to the majority, is to allow the legislature to accomplish indirectly what the Constitution forbids because a legislatively initiated appropriation can only be made through enactment of a Supplementary Appropriation Bill which mandates imposition of a specific tax to raise the revenue necessary for the appropriation. The majority expresses the opinion that there is no mandatory duty upon the Governor to fund Chapter 867 in any event because he has authority under the Budget Amendment to “revise” estimated appropriations and may therefore reduce (or presumably eliminate) any item except estimated appropriations for the legislature, the judiciary, and for the public schools.
The Budget Amendment was not intended to circumscribe the plenary law-making power of the legislature to determine what the State‘s fiscal policy shall be. Rather it was the grand design of the executive budget system to bring about a fundamental change in the method of appropriating money from the State Treasury in order to make it impossible to produce a budget deficit. To this end, the General Assembly was prohibited by the Amendment from appropriating money out of the State Treasury except through the Budget Bill or, by a Supplementary Appropriation Bill. Subsection (3) of the Budget Amendment requires the Governor to submit a budget to the
(a) for the General Assembly as certified to the Governor in the manner hereinafter provided;
(b) for the Executive Department;
(c) for the Judiciary Department, as provided by law, certified by the Comptroller;
(d) to pay and disсharge the principal and interest of the debt of the State in conformity with
Section 34 of Article 3 of the Constitution , and all laws enacted in pursuance thereof;(e) for the salaries payable by the State and under the Constitution and laws of the State;
(f) for the establishment and maintenance throughout the State of a thorough and efficient system of public schools in conformity with
Article 8 of the Constitution and with the laws of the State;(g) for such other purposes as are set forth in the Constitution or laws of the State.” (Emphasis added.)
Subsection 5 (a) requires that the total proposed appropriations contained in the Governor‘s budget as submitted to the General Assembly not exceed the figure for total estimated revenues. The subsection requires that the budget as ultimately enacted by the legislature after all amendments have been made be balanced, i.e., that the figure for total estimated revenues be equal to or exceed the figure for total appropriations.
In producing his estimate of appropriations, the Governor is authorized by subsections (11) and (12) to require all officials and agencies applying for State appropriations to provide him with itemized estimates. He is authorized to
Subsection (8) of the Budget Amendment authorizes the General Assembly to pass Supplementary Appropriation Bills after the Budget Bill has been enacted. Such a bill is required to provide the revenue necessary to pay the appropriation thereby made by a tax to be levied and collected as the bill directs.
As our predecessors observed in McKeldin v. Steedman, 203 Md. 89, 97, 98 A. 2d 561, 564 (1953), the executive budget system imposes upon the Governor the sole responsibility of presenting to the legislature a complete and comprehеnsive statement of the needs and resources of the State; it makes it impossible for the legislature so to change the plan proposed by the Governor as to produce a deficit; but it permits the legislature to make provision for any purpose not included in the Governor‘s plan on the condition that it provide for the revenue which the accomplishment of its purpose necessitates.
The constitutional authority of the legislature to enact Supplementary Appropriation Bills under subsection (8) was obviously not intended to constitute the only means by which it could shape and implement the fiscal policy of the State through its law-making function. The prime mechanism through which the legislature could express its
It is true, as the majority says, that the Governor‘s plan of estimated appropriations may be dictated by a multitude of legislative enactments and that this could result in the Governor‘s submitting a budget in an amount greater than existing revenues can defray. It is nevertheless his constitutional obligation under the Budget Amendment to include all constitutionally mandated items in his budget, as provided in subsection (4), and where he estimates that there will be a shortfall in available revenues, he must propose additional revenue measures for еnactment by the legislature. Should the legislature fail to provide by law for the additional revenue, it will then have to strike out or reduce the appropriations provided in the Budget Bill in the manner permitted by the provisions of subsection (6) so as to bring the budget into constitutional balance, viz., total estimated revenues will be equal to or exceed total appropriations. Since a budget not in balance is unconstitutional and hence ineffective to appropriate money
That the General Assembly, by enacting a general law, can compel the Governor to include an appropriation in his Budget Bill for the next ensuing fiscal year is hardly new or novel. The Attorney General has unequivocally so held. See 43 Op. Att‘y Gen. 130 (1958); 53 Op. Att‘y Gen. 95 (1968); 53 Op. Att‘y Gen. 90 (1968); 59 Op. Att‘y Gen. 64 (1974). To the same effect, see G. Bell, State Budget Administration in Maryland (Univ. of Md. Bureau of Governmental Research 1957) at 11; 1951 Report of the Commission on Administrative Organization of the State (Sobeloff Commission).
Moreover, the Court has been greatly enriched in its consideration of this case by an amicus curiae brief filed on behalf of the President of the Senate and the Speaker of the House of Delegates of Maryland, acting jointly оn behalf of the Policy Committee of the General Assembly of Maryland. Since the position taken by amicus corresponds with my own views, I quote from it liberally:
“Maryland‘s adoption of an executive budget system has resulted in no transfer from the General Assembly of its fundamental power to declare what the law shall be, in fiscal as in other matters. At most, the adoption of such a system shifted to the Governor a role of initiation or proposal; it did not give to the executive branch any power to overrule legislative policy determinations. The budget system arose from an existing problem and from the recognition that without some binding, rational plan for matching income and expenditures, the government was likely to incur mounting deficits. The purpose of the budget was to match income and expenditures on a yearly basis.
“If the budget is viewed simply as a technique for achieving an annual balance of income and expenditures, then there is no reason to object to any legislation requiring that the Governor‘s
budget for a coming year provide for a certain expenditure. The directive in no way disturbs the balance of income and outgo for the current or the ensuing yeаr, and the General Assembly is not disrupting the control furnished by the budget mechanism. Thus, [the lower court‘s] suggestion that permitting the Legislature to mandate an item in a future gubernatorial budget bill is permitting it to do indirectly what it cannot do directly (i.e., pass a supplementary appropriation bill calling for expenditures in the same fiscal year covered by the Governor‘s budget plan without raising the revenue to pay them) is inapt.”
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“A reading of the complete report of the Goodnow Commission makes it clear that the primary purpose and aim of the Budget Amendment which that report proposed was to prevent a budget deficit; in other words, in the planning of state finances, to make certain that income matched outgo on a yearly basis....
“Allowing the General Assembly, by enactment of a general state law, to require the Governor to include and to fund in a subsequent budget an appropriation for the purposes of that law in no way contravenes this objective. On the contrary, it accommodates the need for a balanced budget while, at the same time, it protects the power of the Legislature as the ultimate law-making and policy-determining body in our statе government. The Governor still has the power, within the guidelines established by the General Assembly by law, to allocate the general revenues of the state among the various programs provided by law and to determine the extent to which these programs shall be funded. If in his opinion the general revenues of the state will not be sufficient, then it
is incumbent upon him to make this fact known to the Legislature so that it may levy such taxes as it deems best to provide the necessary revenue.”
Amicus further points out that it is not necessary to rely upon a general understanding of the intent and purposes of the Budget Amendment to support the power of the General Assembly to provide by law for mandated items. That power, it says, is spelled out explicitly in subsection (4) of the Budget Amendment which establishes “mandatory budget items,” each of which is of equal dignity, force and viability. Amicus urges that the requirement of subsection (4) (g) that the Governor‘s budget contain an estimate of all appropriations “for such other purposes as are set forth in the... laws of the State” has precisely the same force and effect on the Governor in preparing the Budget Bill as does each of items (a), (b), (c), (d), (e) and (f). In this connection, the report of the Goodnow Commission which drafted the Budget Amendment includes this language:
“Our first thought in drafting the proposed amendment has been: First — To impose upon the Governor the sole responsibility, within the limits of the Constitution and the provisions of existing law, of presenting to the Legislature a complete and comprehensive statement of the needs and resources of the State based upon: (a) Estimates made by those applying for State moneys; (b) Evidence brought out at public hearings on those estimates; and (c) Administrative revision by the Governor of all estimates, except those for the Legislature and the judiciary, and for purposes for which provision has been made by the Constitution or existing law.” Dept. of Legislative Reference, The Maryland Budget Amendment 12 (1917) (Emphasis added.)
It is also to be noted that
“[O]nce Chapter 867 was duly passed and signed by the Governor, it became a valid statutory direction binding on the Governor. The specific language of the Budget Amendment, and
Code, Article 15A, § 21A , require compliance with the provisions of Chapter 867 by the Governor and other members of the executive branch in the preparation and submission of the state budget and the annual budget bill.“In 1968, the Attorney General expressed his opinion that the Budget Amendment and
Code, Article 15A, § 21A would require the Governor to include an appropriation in the annual budget where a state law called for such an appropriation. 53 O.A.G. 95. In issue were certain laws providing for scholarships. In cases where those laws specifically provided that funds ‘shall be placed [or included] in the budget from year to year‘, the opinion concluded, ‘there is no room for discretion, and the Governor must include [funds to cover the scholarships] in his budget as mandatory appropriations.’ (p. 96)“Similar reasoning was applied in another 1968 opinion of the Attorney General, where, although it was concluded that the act creating the Maryland Hospital Commission did not direct an expenditure of funds and therefore could not be construed as a legislative mandate to the Governor to provide funds for the Commission in his annual budget, it is nevertheless clear that the Attorney General would have concluded that compliance by the Governor would have been rеquired (under
Constitution, Article III, § 52 (4) (g) andCode, Article 15A, § 21A ) had the language of the statute constituted a legislative mandate. In arriving at his conclusion, the Attorney General pointed out that the actcreating the Hospital Commission provided that its members should serve without pay and that it should have ‘such staff, officers and employees as may be provided for in the Budget from time to time‘, thus clearly leaving the matter of funding to the Governor‘s discretion. 53 O.A.G. 90. ....
“The Attorney General reached the same conclusion, i.e., that in preparing his annual budget, the Governor must comply with valid legislative enactments, in an even more recent opinion dated May 28, 1974 .... 59 O.A.G. 64. Despite the unmistakable conclusion there reached, that Senate Bill 424 of the 1974 session, which called for appropriations in the Governor‘s budget in amounts ‘not to exceed’ $150,000 and $100,000 to provide certain scholarships, was not an appropriation and therefore not required to comply with subsection 8 of the Budget Amendment, the Attorney General stated his opinion that ‘some kind of scholarship program is required to be developed and funded through the State Budget’ (p. 65, emphasis in original; see also p. 69).”
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“In the case at bar, Chapter 867 was and is a clear direction to the Governor to implement its requirements in the appropriation to the Department of Human Resources in his annual budget. The mandate is as clear as if Chapter 867 had stated expressly, ‘The Governor shall include in his annual budget an appropriation to the Department of Human Resources to cover payments to foster parents at a rate not less than that paid by the Department of Juvenile Services‘. Unless the Governor made the mandated appropriation (one for a purpose as set forth in the laws of the state within the meaning of
Constitution, Article III, § 52(4) (g) ), he would be changing the provisions of Chapter 867, a dulyenacted state law, a result impermissible under Code, Article 15A, § 21A .”
I think the short of it is that the Governor‘s failure to fund the provisions of Chapter 867 was plainly violative of the
Judges Smith and Digges authorize me to state that they concur in the views expressed in this dissent.
Smith, J., dissenting:
I concur fully in the dissenting opinion of Chief Judge Murphy. I would add but a few additional observations.
The constitutional provisions here under discussion are essentially the same as those proposed by the Constitutional Convention of Maryland in 1968. See Comparison of Present Constitution and Constitution Proposed by Convention 198-99 (1968). I find interesting and persuasive the views expressed at the Constitutional Convention on this subject by Delegates Joseph Sherbow and William S. James.
Delegate Sherbow is one of the acknowledged fiscal experts of this State, having served in 1939 as secretary of the Maryland Commission on Taxation and Revenues and in 1946 as chairman of the Commission on Distribution of Tax Revenues. At the Convention he was chairman of the Committee on State Finance and Taxation. As that committee chairman on December 6, 1967, he presented Committee Recommendation No. SF-5 to the Convention sitting as the Committee of the Whole. It concerned the budget. See Journal of the Constitutional Convention of Maryland of 1967-68 301 (1968). It was the practice of the Constitutional Convention for the chairman of each committee presenting such a recommendation to make comments relative to the proposal and then to subject himself to questions. I find instructive two sets of questions and answers:
“DELEGATE BENNETT: Well, it leaves a tremendous amount of power in the head of the budget system here. He is a practical dictator.
I know from having dealt with budget directors in other places and it is pretty frustrating on the administrаtive officer not to have some appeal to the legislature. “Is there any way, or would you object to any way by which a proviso could be put in which would allow, or prohibit the governor from reducing an appropriation or excluding an appropriation specifically provided for by a special bill?
“DELEGATE SHERBOW: If that is the law which is already in effect, he has to provide for it. But he can‘t anticipate a bill that may be passed, except to the extent that in the supplementary appropriation he can provide for it. But if you are talking about a law that has been passed which he may despise and have no use for, he has to include that in the budget. To prohibit a law yet to be passed, he couldn‘t possibly know what is required.
“We have these safeguards for which I am thankful.” Transcript of Proceedings of Constitutional Convention pp. 7504-05.
“DELEGATE RALEY: Judge Sherbow, following along the question directed to you by Delegate Bennett and in regard to section 6.10, supplementary appropriations, I think we ought to get into the record where under section 6.10, supplementary appropriations, it says they shall be — there shall be a tax accompanying the аction, that this — is it true; you can comment on it — that this does not prohibit the legislature from, say, passing a program for, say, mental health, without a tax, and it not going in effect in this coming budget year, but the next fiscal year the governor would then have to fund it?
“DELEGATE SHERBOW: Yes. What would happen would be if you provide it go into effect in the next fiscal year, it would have to be a part of the budget. He is required by law to, or by this Constitution to provide in his budget for that
particular program, and it is then an ordinary part of the program. But it is off, of course, for over a year.” Transcript pp. 7514-15.
At another point on that same day a proposal was before the Convention which would have amended the recommendation of the Committee on State Finance and Taxation by permitting the General Assembly to “amend the budget bill by increasing or decreasing the appropriation for any item included in the budget, by transferring funds among items included in the budget or by including items not in the budget bill as introduced,” so long as “[t]he total appropriation included in the budget bill as enacted by the General Assembly [did] not exceed the estimate of revenues submitted by the governor.” See Journal at 302. Delegate James took the floor in opposition to this proposal. He was then President of the Senate of Maryland and is now State Treasurer. He said:
“DELEGATE JAMES: Mr. Chairman, Fellow Delegates:
“I would like to say that I have been in the General Assembly 21 years, and I have yet to talk to a responsible legislative leader, I have yet to talk to a legislator, who is not satisfied with the present executive budget system which limits the power of the General Assembly to cutting items.
“The legislature is certainly not helpless. If there is a public program which demands attention, the legislature studies this program, sometimes by itself, sometimes in cooperation with the governor; then plans are laid to adopt a program which expresses the legislative feeling in the matter, and if the program is adopted it is implemented in the executive budget. Let‘s face it. This is the proposal to implement expanding programs in a disorderly manner.
“I am confident the General Assembly and its members, by an overwhelming majority, are
opposed to this, and I urge you to adopt the conservative approach, the present system, which is orderly and does not lead us into the chaos that exists in the federal government and in many States which do not have Maryland‘s beneficial and orderly system of handling finаnces.” Transcript pp. 7635-36.
These statements must be placed in the context that the delegates present included former Governor J. Millard Tawes; former Speaker of the House of Delegates of Maryland, Attorney General, and Judge of this Court, C. Ferdinand Sybert; a number of then legislators and former legislators; at least one highly respected then sitting circuit judge; retired judges including William L. Henderson, a former Chief Judge of this Court; and such a fiscal expert as Richard W. Case, Esq., vice-chairman of the committee of which Judge Sherbow was chairman. No delegate took issue with the accuracy of the statements made.
I am authorized by Chief Judge Murphy and Judge Digges to say that they concur in the views here expressed.