101 A. 786 | Md. | 1917
Ten cases were by agreement of the parties and with the consent of the Court bound in one record — the main questions being involved in all of them. Each of the ten appellees filed a petition for a mandamus against the Board of Police Commissioners of Baltimore City to require that board to obey the provisions and directions of one or more Acts of the General Assembly of Maryland named in the petition, and to pay the petitioner the sum named in such Act or Acts. The main defense relied on in the answers was that the Acts were special laws prohibited by Article 3, § 33 of the State Constitution, and were therefore unconstitutional and void. Agreed statements of facts were filed in the cases and the lower Court ordered a writ of mandamus to issue in each case, and gave judgment for the petitioner for costs. Appeals from those several orders and judgments are now before us.
Chapter 459 of the Acts of 1886, being section 755 of Article 4 of the Local Code of 1888, provided that: "All sums of money which are now in, or which may hereafter come into the hands of the board of police commissioners for the City of Baltimore, under and by virtue of the provisions of existing laws, except such sums as may come into their hands under and by virtue of the provisions of section *317 728 shall constitute a fund to be known and accounted for as the special fund." That is section 776 of the New Charter and is under sub-title "Special Fund." Section 728 (747 of Revised Charter of 1915) referred to money received from taxes, and in case of a deficiency the board was authorized to issue certificates and raise therefrom a sum not exceeding $50,000 to meet the exigency. The board has large powers, including the appointment of the police force, detectives, matrons, etc.
Section 756 of Article 4 being the Act of 1886, Chap. 459, as amended by the Act of 1888, Chap. 306, provided that in addition to the sums of money authorized by law to be paid out of the Special Fund the Board, whenever in their opinion the efficiency of the service required it, were authorized to retire any officer of police, policeman, detective, clerk or turnkey appointed by them, and pay him out of said fund, in monthly instalments, a sum not to exceed one-third of the amount monthly paid to him at his retirement, provided he had served faithfully not less than sixteen years, or shall have been permanently disabled in the discharge of his duties, and the Board was required to procure and file among their records a certificate of a competent and reputable physician that the person proposed to be retired had been thoroughly examined by him and was incapable of performing active police duty, etc. That section was amended by several Acts so that as it is now in the revised charter of 1915 it provides for payment of a sum equal to one-half of that paid at retirement, provided he had served for not less than twenty years and some other changes were made. That section (756) in the new Charter of 1898 is on a different subject and section 777 is the number of the one relating to retirement of officers of police, policemen, detectives, clerks and turnkeys, but both sections 756 and 777 are in the Revised Charter. Section 756 in the Revised Charter requires those retired to perform such police duties as the Board requires, not to exceed seven days during any year, for which service no compensation is to be paid by the Board. Section *318 756A (Revised Charter) added by the Act of 1912, Chapter 189, authorizes the Board to retire any officer of police, policeman,detective, clerk or turnkey appointed by them who may be ineligible in the way of length of service to retirement on pay for life, as provided by section 756, and who has served faithfully and has become permanently incapacitated from active duty, and to pay him out of the Special Fund a sum not exceeding one year's salary allowed by law to him at the time of his retirement, provided a certificate is obtained from a majority of the police physicians of Baltimore City that he has been examined by them and that he is incapable of performing active duty.
Section 776 in the Revised Charter is the same as section 755 quoted above from Article 4 of the Code of 1888. Section 776A (Act of 1900, Chap. 266) makes the Board of Police Commissioners trustees of the Special Fund. Section 776C states in detail what the Special Fund shall consist of — amongst other things of two per cent. of the salary or pay of the police force entitled to participate in the Special Fund. It provides that it shall be optional with any member of the police force to contribute the two per cent., but that no member shall participate in the special fund unless he does so contribute. The confusion arising from having two sections of the Charter as much alike as 756 and 777 seems to have begun in 1898. The new Charter is Chapter 123 of the Acts of that session and in that what was section 756 of Article 4 in Code of 1888 was made section 777, but Chapter 494 of the Acts of 1898, evidently drawn before the new Charter was passed, in amending the provision for retirement referred to it as section 756. Then Chapter 233 of Acts of 1900, Chapter 81 of Acts of 1902, Chapter 391 of Acts of 1910 (p. 635) and Chapter 189 of Acts of 1912, continued to refer to it as section 756. Then Chapter 567 of Acts of 1912, which is the last Act signed, referred to the fact that Chapter 391 of Acts of 1910 had erroneously stated the section to be 756 in lieu of 777, the correct number intended to be amended, and repealed and re-enacted as 777. *319 It would seem therefore to be clear that section 777 as amended by Chapter 567 of Acts of 1912 is now the statute in force on the subject, and in so far as there is any conflict between it and what was called section 756 in above statute section 777 must prevail. It could not have been intended to have two such sections in the Charter. We need not therefore trouble ourselves with section 756, although there is not in the main much difference between them so far as can apply to this case excepting as to the time of service.
Section 777A (being Act of 1906, Chap. 456,) includes superintendent of matrons and matrons of station houses within the provisions of section 777, so that they may enjoy the same rights and privileges and benefits, subject to the same limitations and conditions, as those conferred for the retiring of members of the police force, provided they pay to the Special Fund $10 per annum for three years, in addition to the regular percentage required "under the Special Pension Act." Section 777B included the secretary and assistant secretary of the Board within the provisions of section 777, provided the secretary paid $300 and the assistant secretary $150 in three equal instalments to the "Special Fund." Section 777Ba (1900, Chap. 263,) directed the Mayor, etc., of Baltimore, upon the request of the Board, to appropriate annually a sum of money for the relief of disabled and superannuated members of the police force, and for the relief of widows and children of policemen killed in the discharge of duty, when the special fund was not sufficient for the payments authorized by the Act of the General Assembly heretofore passed. Provisions under the sub-title "Special Fund" are made in sections 776 to 780, inclusive, but we will not refer to the others. Having thus referred to what the appellant calls general laws on the subject, without deeming it necessary to enter upon a discussion as to whether they are general or special, and for the purposes of these cases assuming them to be general, we will now consider the several statutes passed for the benefit of the appellees. *320
The question then is whether such an Act was in conflict with Article 3, § 33 of the Constitution. It provides that, "the General Assembly shall pass no special law for any case forwhich provision has been made by an existing law." It seems to us clear that the Board had no power under the "General Laws" in the charter to pension Mrs. McClenehan. As then they were not authorized to allow her a pension under those laws, it cannot be said that the constitutional provision above quoted prohibits the passage of such a statute as the one passed for her benefit. It may be that the Legislature was not willing to pass a general law allowing the *321 Board to pension matrons who left the service by reason of ill health, but were not permanently disabled in the discharge of their duty, and had not served the time required by Section 777 — 16 years. Indeed section 756A indicates that it deemed it proper to permit the Board to retire an "officer of police, policeman, detective, clerk or turnkey" appointed by them, who was ineligible in the way of length of service to retirement on pay for life, under the requirements of section 756, and had served faithfully and had become permanently incapacitated from active duty, but it was not willing to include matrons, and hence did not provide for their retirement by reason of sickness. It did not give them the benefit of the Special Fund at all until 1906.
There are many decisions of this Court which indicate that such a special provision for a particular person named as is made by this Act does not come within the prohibition. If there had been no such statute as section 756 or 777 we can see no reason why this Act could not have been passed, and if we are correct in the conclusion that neither of those statutes embraced her case, is it not just as if there was no such statute? In Pumphrey v.Baltimore,
It is true that there are a number of sections in the Charter which relate to pensions for policemen and others, but they are only allowed on certain conditions. If a worthy person does not come within those provisions, it cannot be properly said that an Act can not be passed to provide for his or her case, any more than it can be successfully contended that the great amount of legislation which has been passed conferring special powers on corporations which were not granted by the general laws are invalid. That has been done over and over *323 again, without a suggestion that they were not valid. The General Corporation Laws of 1868 provided that, "No corporation shall possess or exercise any corporate powers except such as are conferred by law, and such as shall be necessary to the exercise of the powers so acquired." Art. 23, § 56 of Code of 1888; Sec. 64 of Code of 1904. And it was oftentimes exceedingly doubtful whether a corporation had under the general laws some special power it desired to exercise, and hence numerous acts were passed to confer such powers. Sections 756 and 777 empower but do not require the Board to retire those provided for in them. It would be carrying the meaning of section 33 of Article 3 of the Constitution very far to say that by reason of such sections the Legislature could not pass an Act requiring the Board to retire on pay a certain person or persons which the Legislature thought should be retired. The Legislature never intended to abandon all control over the Board in such matters, as is shown by the many statutes on the subject. Of course when there is a general statute covering the particular case another question may arise, but we are satisfied that there is no difficulty in this case.
It is contended, however, that the Act itself was not mandatory, but was in the discretion of the Board. While that is correct, the Board did exercise its discretion, presumably after careful examination as the Act provides. There is nothing in the Act to indicate that the intention of the Legislature was to leave it to the discretion of each Board from time to time, but having been acted on by the Board then in office it was not longer in the power of subsequent Boards to revoke it, merely as an exercise of their discretion. If that were so in refernce to what we speak of as the "Special Acts," it would likewise be so under section 777 and section 756, if that is still of any force. They leave it to the determination of the Board in the first place, "whenever, in their opinion the efficiencey of the service may require it, to retire any officer of police, policeman," etc., and they state the grounds upon which they may suspend payment or dismiss the party. It seems clear to us that it was left to the existing Board, and was not intended to leave it to the discretion of each succeeding Board as to whether the pay should be continued. Moreover, the action of the Board, as shown by the letter of the secretary, was upon the ground that the Act was unconstitutional, and it was not pretended that it was done under a claim of discretion in the Board.
We have thus gone at some length into these ten cases, and as we have above pointed out, we do not find any "general law" which can properly be said to interfere with the "Special Acts" referred to. We have already explained that we did not deem it necessary to discuss the point raised by the appellees that these Acts codified in the Local Code on this subject are not "General Laws" within the meaning of Article 3, § 33, because if they are admitted to be so, we find none of what we have spoken of as "Special Acts" coming within the prohibition of that section of the Constitution.
We are not called upon to speak of the wisdom of the Legislature in passing such Acts, although some of them would seem to be peculiarly meritorious and just. The parties had paid regularly into the Special Fund, which was intended for pensions and some other purposes. From the view we take of the Article of the Constitution relied on by the appellant, it becomes unnecessary to discuss any of the other questions raised. We will affirm all of the orders passed, including the Meehan case, as we have no record of his death of which we can take notice, and we assume that that will be adjusted without making his representative a party. If necessary of course that can be done.
Order affirmed in each of the ten cases, the appellant to paythe costs. *330