McPherson v. Leonard

29 Md. 377 | Md. | 1868

Lead Opinion

Brent, J.,

delivered the opinion of the court.

The petition of the appellant for a writ of mandamus, and the answer of the Comptroller of the Treasury, present the question of the constitutionality of the law of 1868, ch. 425, providing “ for the liquidation and settlement of claims heretofore contracted, for arming, equipping and uniforming the militia.”

The Constitution of the State, Art. 3, sec. 29, provides that, “ The style of all laws of this State shall be — Be it enacted by the General Assembly of Maryland.” In the enactment of the law now presented for our examination, the words, “ by the General Assembly of Maryland,” do not appear, and the question arises, whether the omission of these words by the Legislature renders the law invalid and void.

The English authorities, which have been referred to upon the subject of the style of the statutes of Parliament, shed but little, if any, light upon the question before us. Prior to the thirteenth year of Charles II., the mode of stating the enactment of statutes in England had attained no fixed form, and the present style was not adopted until that period of time. The few cases which have arisen there, involving the proper style of enactment, turn upon the sufficiency of proof, upon the face of the statute or otherwise, to show that it was passed by lawful authority. If that were the question here, irrespective of any. constitutional provision upon the subject, there would be no doubt of the validity of this law, coming before us as it does, signed by the presiding officers of the two branches of the Legislature', approved by the Governor, and bearing the great seal of the State.

*The present style of the laws in this State was adopted in the Constitution of 1776, when the political condition of the people was undergoing a change, when the laws were no longer to be adopted “ by the Lord Proprietary, by and with the advice and consent of his Lordship, the Governor, and the Upper and Lower Houses of Assembly of the Province,” for the purpose of conforming them to the changed condition of things, and to secure uniformity in legislation. The same style has been continuously preserved to the present time, and although a number of laws have been found upon the statute book of the State from 1777 to 1864, involving important rights, in which the words, “ by the General'.Assembly of Maryland,” are not found in the enactment, the courts have never been called upon to decide their validity, and the question is now for the first time presented.

It is not, strictly speaking, a question of construction, for the language of the Constitution is clear, but one of application. How and to whom is this particular provision to be applied, and what shall be the consequence of a disobedience of its directions ?

This leads ús to inquire whether the provision, as found in the Constitution, is directory only, or mandatory and imperative. If directory and not mandatory, the rule is, it may be disregarded without rendering the Act void. In Foot v. Prowse, 1 Strange, 625, the Mayor was tó be chosen by aldermen annuatim eligendi, but those present at the election had been in office for several years, and had not been elected annuatim. The Exchequer Chamber, upon an appeal “ after two solemn arguments,” decided the words annuatim eligendi were directory, and held the appointment» valid, and this- judgment was afterwards affirmed in Parliament. In Rex v. Loxdale, 1 Burr. 447, Lord Mansfield says: “ There is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory.” These decisions have been followed up by a long train of cases recognizing, *mthout a single exception, as far as we have been able t^%£certain, the distinction between the provisions of a statute «raich are formal only and those which are of its essence and Sibstance. Form, or that which is not the essential thing to be done, it is true, by the particular language used, may be made a matter of substance, as is well exemplified in the case of The Queen v. Corporation of Durham, 10 Mod. 146. It is mere said, “ that though a town clerk be annuatim eligibilis, he remains town clerk after the year and until another was chosen, but if he had been eligibilis pro uno anno tantum, his office would have expired at the end of the year.” But where there is no language used, importing that it is of substance, the clauses of a law directing its observance are regarded as directory only- — for that is directory which is not of the essence of the thing to be done. Sedg. on Stat. & Con. L. 368, ei seq., and authorities there cited; Smith on S. & C. Con. sec. 679; Striker v. Kelly, 7 Hill, 24; R. R. Co. v. Governor, 23 Mo. 368.

In view of this doctrine, we have very carefully and anxiously weighed and examined the question now before us, and cannot regard the provision requiring the words, “ by the General Assembly of Maryland,” to be in the enactment of a law, as otherwise than directory to the Legislature to secure, as we have before said, uniformity in the laws. They certainly are not of the essence of the law. They furnish no aid in its construction, and its provisions are as clear and intelligible without them, as they would be with them. They are not essential and material in indicating by what authority the law was enacted, for, signed and approved by the proper officers of the Senate and House of Delegates, and by the Governor of the State, sealed with the great seal of the State, and found enrolled among the laws of the State, with no allegation or even suspicion that it is there by fraud, it comes before the courts bearing upon its face sufficient evidence that it has been really and truly passed by the General Assembly of Maryland. To announce that a law, supported *by these solemnities and sanctions,, was not valid because of the omission of words thus immaterial and formal only, would be sacrificing substance to mere form, and declaring that to be mandatory, which the law pronounces to be directory. Constitutions, as well as laws, are best maintained and preserutd by interpreting their provisions according to establir’ rules of construction, and rights under them are rende * aiore certain and secure.

We do not think the que ow before us has been decided in Hardesty v. Taft, 23 Md. 512.

That case did not involve the construction of this clause of the Constitution. It was referred jf ncidentally in the opinion of the learned Judge, in languaj. no means decisive of the point, and leaving it open for sl.l equent judicial interpretation. The Judge says, “ the first clause of this section provides for those properties of a general statute law of Maryland, which may be regarded as necessary to its validity,” and further on, “ these are regarded as requisites in the structure of such a law, necessary to its being, and yet only lo a reasonable intent

Being satisfied that the words “ by the General Assembly of Maryland ” are not of the essence and substance of a law, but their use directory only to the Legislature, we cannot, because of their omission from the enactment, declare the law in question unconstitutional and void.

The next objection which we are to consider, is that the law in question makes no such appropriation as is required by Art. 3, sec. 32, of the Constitution. The object of this section is, no doubt, as stated by the Attorney General, to prevent wasteful and fraudulent, or indefinite appropriations of the people’s money, and that the Legislature and the people should be notified of the specific sum appropriated, and of the specific purpose of the appropriation. We think upon a fair and reasonable construction of this law, a specific sum is distinctly appropriated, and the object to which it is to be applied distinctlj'specified. Appropriations in this *Eorm have the sanetion of precedent, and they are sufficiently certain and specific to meet the requirements of the Constitution. The third section of the same law directs, that the warrant of the Comptroller “ shall be paid out of any money thereafter in the treasury, not otherwise appropriated.” This is certainly an appropriation, and a fund is dedicated to its payment by the terms “ out of any money thereafter in the treasury, not otherwise appropriated.” To say when the Legislature directs a claim to be paid out of a certan fund, it makes thereby no appropriation for the payment of that vAi'tn, would be to refuse to give to language its ordinary acce"1 ‘j An, and reject the most familiar rule of interpretation. If N :w had stopped here it would have been nugatory, but th( nt appropriated is distinctly specified, by providing that ¿10 whole amount of said warrant shall not exceed three hundred thousand dollars.” It is the only form in which the ropriation could have been made, because, to meet the requii As of Art. 3, sec. 52, of the Constitution, the claims were t je audited by the Comptroller as directed in the first and second sections of the law.

Of the object to which the money appropriated is to be applied there can be no doubt, and it was conceded in the argument, that this, at least, was stated with sufficient certainty and distinctness.

Upon the whole, we are of opinion that the law is constitutional, and the duties of the Comptroller under it sufficiently certain and fixed, to authorize the issuing of the writ of mandamus, as prayed in the petition of the appellant.

The^ro forma judgment of the Superior Court of Baltimore City, must, therefore, be reversed, and the writ of mandamus ordered.

Judgment reversed and writ of mandamus ordered.

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Dissenting Opinion

*Stewart, J.,

delivered the following dissenting opinion:

The record before us submits two questions for adjudication.

1st. Is the Act of the Legislature involved in this inquiry a valid law, notwithstanding it is not in conformity with the language of the Constitution, prescribing the style of all laws of the State ?

2nd. Does it, in accordance with the Constitution, or in fact, make any distinct and substantive appropriation of the public money ?

According to my judgment, this Act is essentially and fatally defective on both grounds, and is not in accordance with Art. 3, secs. 29 and 32, of the Constitution. The English cases, in regard to the construction of statutes or Acts of the British Parliament, afford but little aid where the meaning of our State Constitution, and the conformity of the Acts of-the Legislature therewith, are the subjects of inquiry. So far as I have been able to ascertain from the authorities by analogy or otherwise, a distinct recital of the enacting authority of a statute is part of the substance of the Act, and essential to its validity. Our Constitution, which, in this respect, follows its antecedents from 1776, in prescribing a style for our laws, has recognized its materiality and given force and effect to its importance, and insisted upon conformity therewith in the proper enactment of statutes. I do not, however, propose to argue the legal question. My opinion is quite as much a matter of judicial sentiment, as the result of legal deduction; but I am fully satisfied from my researches, the authorities fully sustain the truth of the proposition, that the incorporation- of the style showing the enacting authority upon the face of the Act, is material and indispensable to its validity. Believing that the provisions of the Constitution, both as to form and substance, or the deliberate judgment of the people in their highest sovereign .act, ordaining their form of government, ought to be strictly construed and observed, “ and any departure therefrom, under any plea, *is subversive of good government”— to use the language of Art. 44 of the Declaration of Rights, it seems to me, with that respectful deference due to the differing conclusion of a majority of my brethren, that the Act now in question contains a fatal omission on the part of the Legislature, no doubt the result of accident, and not discovered by them at the time, and has not been conformed to the requirements of the Constitution. I cannot give to it my approval as a valid law.

That instrument having expressly declared, in Art. 3, sec. 29, that “ The style of all laws of the State shall be, ‘ Be it enacted by the General Assembly of Maryland,’ ” it is incumbent on the law-making department to pursue that mode. If a positive requirement of this character, although, in some sense, it may be looked upon as a mere formality, can be disregarded, so may others of a different character, and where will the limit be affixed, or practical discrimination made as to what parts of the organic law of the State are to be held as advisory, directory or mandatory?

Disregard of the requirements of the Constitution, although, perchance, in matters of mere form and style, in any part, in law, may establish dangerous examples, and should, in all proper ways, be discountenanced. The safer policy, I think, is to follow its plain mandates in matters that may appear not to be material, in order that the more substantial parts may be duly respected. If those who are delegated with the trust of making the laws, from the purest motives, improvidently omit the observances of the Constitution under any circumstances, such oversight may be referred to in the future by others, with far different views, as precedents, and for the purposes of abuse — a higher responsibility is imposed upon those selected by the people for the discharge of legislative duty, and a greater obligation is demanded of them to exemplify, by their practice, a careful compliance with the Constitution. By a vigilant observance of its commands, the more reasonable is the probability that the best order will be secured. It is unnecessary to illustrate, by any argument, the *soundness of this general consideration, which, I am sure, all will admit to be unquestionable, that a strict conformity with the Constitution is an axiom in the science of government. I certainly entertain such profound conviction of its truth, that 1 do not feel authorized to give my approval to this Act as a valid law, but, on the contrary, am constrained to say, that the omission of the style required by the Constitution is fatal to its validity.

Upon the second question in regard to the manner of appropriating the public moneys, which is an important attribute of legislative power, the Constitution has carefully given very precise directions, which, T think, have not been observed in this instance.

The first section of the Act in question authorizes and directs the Comptroller to receive and' audit all claims and demands on account of the matters therein specified.

The second section prescribes the mode and quality of the proof to be taken by the Comptroller.' The third section requires the Comptroller to audit and allow for payment such claims as he may find correct and true, and to draw upon the Treasurer, in favor of each claimant, for the amount so found by him to be justly and truly due, and said warrants shall be paid out of any money thereafter in the treasury not otherwise appropriated, provided, the whole amount of said warrants shall not exceed three hundred thousand dollars.

Two provisions of the Constitution are applicable to the appropriation of the public moneys, to- wit: Art. 3, secs. 32 and 52, when a sum like that now in question is to be appropriated, and they must be construed together. In the absence of any proof to the contrary, where sec. 32 has been complied with, it would be presumed that the Legislature, in making an appropriation, had pursued the directions prescribed by sec. 52. It was doubtless designed that the requirements of sec. 52 should precede action under sec. 32.

Whether the directions of both can be combined and carried out effectually, in the same Act of the Legislature, as ^designed by the proceedings in question, involves a proposition not directly presented in this case, and not necessary to be decided in disposing of the matter before us. Reference to sec. 52 more clearly shows the design of the framers of the Constitution to guard against hasty and reckless appropriations of the public money, and gives greater emphasis to the precise requirements of sec. 32. Taken together, they demonstrate the incompatibility of the appropriation in question with sec. 32. The manner of this appropriation reverses the order prescribed in sec. 52, the fair construction of which clearly shows that the mode adopted by this Act is not such distinct and unconditional appropriation prescribed by sec. 32.

That provision was adopted for wise purposes, and should be strictly adhered to by the Legislature. It requires that every law appropriating public money “ shall distinctly specify the sum appropriated and the object to which it shall be applied.” This Act makes no such appropriation — on the contrary, it is conditional, and to have no effect, i-f the sums found due by the Comptroller exceed the amount named therein. The facts stated in the answer of the appellee, and which are agreed by the parties to be the only basis for the action of the court, do not disclose whether all the claims to be audited and allowed by the Comptroller, if found correct, would be within the amount limited by the said Act. If they should exceed that amount, then the Comptroller is not authorized, by its terms, to issue his warrants.

In such case, the mandamus would be a mere nugatory process, and in conflict with the decision of this court, in Commissioners of Public Schools v. County Commissioners, 20 Md. 449.

This Act virtually undertakes to delegate to the Comptroller quasi legislative and judicial authority, to ascertain, allow and draw his warrant upon the Treasurer for such sums as he may find to be correct, according to his judgment, provided they do not, in the aggregate, exceed the sum specified. *This discretionary authority to the Comptroller, in effect, places a contingent fund at his disposal. The same section of the Constitution, requiring the Legislature to make specific appropriation of the public moneys, expressly authorizes the Legislature to place a contingent fund with the Executive, who is required to report to the General' Assembly, at each session, the amount expended, which excludes all other contingent funds.

Art. 3, sec. 52, to which reference has been made, “ prohibits the General Assembly from appropriating any money for payment of any private claim exceeding three hundred dollars, unless said claim shall have been first presented to the Comptroller, with the proofs, upon which the same is founded, and reported upon by him.” This Act, without any preliminary examination by the Comptroller, in advance of its passage, so far from making any distinct appropriation, requires the Comptroller to audit certain demands, with a proviso contingent and dependent upon his finding them to be just and proper, and is not therefore such recognition of their validity by the determination of the Legislature, and distinct appropriation of the money to pay them, as is demanded of it by sec. 32 of the Constitution.

The legislative discretion in this respect is assumed to be delegated to the Comptroller, under certain limitations, and if it is to be operative as sound law, the Comptroller is certainly thereby endowed with large judicial, legislative and executive functions. He judges as to the correctness of the claim, and applies the money to pay it, or withholds his assent, thus exercising plenary authority not warranted by any provision in the Constitution. This highest fiscal officer of the State, chosen by the people, doubting his power under such circumstances to draw the money from the treasury of the State, has refused, and the Attorney General, whose duty it is, under the express requirements of the Constitution, and the responsibility of his oath of office, to give him his advice if required, ^'sustains him in his objections. The questions before us are thus presented in the most imposing form. The facility of drawing money from the treasury will, ordinarily, be easy enough, without the aid of the courts to enforce prompt compliance upon the officials, whose duty it is to guard it from improper demands. The Constitution having, by the means referred to, by the requirement of specific appropriations, and the preliminary examination and report of the Comptroller as to all sums over three hundred dollars, on private claims, and the superadded general responsibility of the Comptroller, as the highest fiscal officer of the State, endeavored to guard against all hasty and incautious applications >of the public moneys, it should be a very clear case, and manifestly demanded by the rigid exigencies of the law, to induce the courts to compel the Comptroller, by peremptory writ of mandamus, to relax his protective powers and thus break down the barriers devised by the Constitution to preserve the public treasury.

If the Legislature make a specific appropriation of money according to the requirements of the Constitution, it is the mere ministerial duty of the Comptroller to issue his draft for its payment, having no discretion about it. The law itself, making the appropriation being mandatory, as it should be, and without reservation to the Comptroller, if he fails to meet its imperative requirements, the party entitled can have him compelled to discharge his official duty by mandamus. But if' there be no distinct appropriation, but discretion vested in the Comptroller, as in this case, as to the allowance of claims according to his judgment, and payment of the money, (if such discretion can be constitutionally imposed upon him,) and with conditions and provisos which may make his action contingent and nugatory, the courts should not in such case interfere to control and direct him by process of mandamus.

Believing the provisions of the Constitution to have been incautiously disregarded in this instance by the General Assembly of the State, and that they alone have the power *to correct such omission on their part, however just and meritorious the objects the Legislature had in view, or inopportune for the claimants to be benefited thereby, I cannot resist the conclusion that the said Act has not the constitutional characteristics to sustain it. Upon either of the reasons relied upon by the appellee, the judgment rendered by the court below, in my view, should be affirmed. Differing with a majority of my brethren, in the conclusion they have reached in this case, I have considered it more respectful to their judgment, and due to the occasion of more than ordinary gravity, where the construction of the Constitution is involved, to give expression -in this form to some of the considerations upon which my convictions are based.

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Dissenting Opinion

Miller, J.,

delivered the following opinion, dissenting in part from the opinion of the court:

In my opinion the provision of the Constitution that “ The style of all laws of this State shall be, ‘ Be it enacted by the General Assembly of Maryland,’ ” is an imperative mandate of the people in their sovereign capacity to the Legislature, requiring that all laws to be binding upon them shall, upon their face, express the authority by zvhich they were enacted; and wherever this authority does not appear upon the face of any Act, it is not a law. I am, therefore, constrained to dissent from the opinion expressed by a majority of the court on that point. I entirely concur with them in the views expressed on the other points involved in the case.