Benson v. State

HARRELL, J. We issued a writ of certiorari to the Court of Special Appeals, before it decided the appeal in this case, to consider several questions: 1. Whether the State of Maryland violates Articles 8 and/or 14 of the Declaration of Rights or the Maryland Consumer Protection Act (CPA), or is subject to the common law actions of unjust enrichment or for money had and received, when the State receives a commission on charges collected from collect phone calls made by prison inmates where the authorizing statute fails to establish the specific rate of commission to be remitted to the State. 2. Whether the notice provisions of the Maryland Tort Claims Act (MTCA) are satisfied when a claimant: (a) ⁶²¹ brings an action on behalf of a class of plaintiffs; (b) fails to state the specific amount of damages sought, yet the Office of the State Treasurer (Treasurer) could possibly ascertain the amount of damages by investigation; and, (c) files a claim in court seeking injunctive relief one month after giving notice of the claim to the Treasurer when the claim submitted to the Treasurer sought damages only. 3. Whether the Circuit Court erred in denying post-judgment motions seeking permission to advance additional allegations beyond those asserted in Appellants’ last amended class action complaints.

I. A. Background Prison inmates who satisfy the security requirements of their respective correctional facilities are permitted to make non-emergency telephone calls, but only on a collect call basis. 1 Code of Maryland Regulations (COMAR) § 12.02.14.01(C)(2). The State Department of Budget and Management (DBM), with the approval of the Board of Public Works, contracted with two private companies to install, maintain, and service telephones and monitoring equipment in the State’s correctional facilities. The customer rates for these calls, which are paid by the persons accepting the collect calls placed by the inmate, are set under the contracts. At the operative times in the present litigation, the contract rates were as follows: a flat charge of $0.85 for local calls; $3.45 for the first minute, plus $0.45 for each additional minute, for intra-state long distance calls; and $4.84 for the first minute, plus $0.89 for each additional minute, for inter-state long distance calls.

The telephone companies collected the charges from the parties ⁶²² receiving and accepting the calls, and then remitted the commissions to the State (a fixed percentage of the total telephone fees charged per call). The telephone commission rates were 20% of local call charges and 42% of long distance call charges. 2 Between Fiscal Year (FY) 1999 and FY 2002, the State received between $5.6 million and $7.3 million each year from the telephone commissions. Pursuant to §§ 10-502 and 10-503(a)(2) of the Correctional Services Article of the Maryland Code, 3 the State’s commissions are paid into the State Treasury to be used for an Inmate Welfare Fund (Fund), with each correctional facility having its own dedicated fund to provide goods and services ⁶²³ that benefit the general inmate population of that facility. 4 The State Treasurer must hold separately, and the Comptroller account for, each fund. § 10 — 503(a)(3). Furthermore, each facility’s fund is subject to an audit by the Office of Legislative Audits, pursuant to § 10-503(a)(4).

Under § 10-504, the Comptroller pays out money from each fund as authorized in the approved State Budget for each fiscal year. B. The Present Case Sandra Benson and Mary Ann Dean, Appellants, received and accepted collect calls from inmate relatives during the periods 2 February 2001 through 9 February 2001 and 21 November 1998 through 6 April 2002, respectively, and paid the resulting bills calculated according to the rate structure outlined supra, including the State’s commission. On 25 October 2001, Benson, purporting to act on behalf of herself and others similarly situated, sent a letter by certified mail to the Treasurer, pursuant to the MTCA, complaining about the “anti-competitive” collect telephone call contract and fee “mandated” as a commission. She sought compensatory damages, punitive damages, and attorneys’ fees. 5 When the relief Benson sought was not forthcoming immediately, she filed a Class Action Complaint on 26 November 2001 in the Circuit Court for Baltimore City.

Several amended complaints followed, consummated by her Fifth Amended Class Action Complaint on 19 May 2003. She alleged that the commission remitted to the State was illegal under nine causes ⁶²⁴ of action, as both direct causes of action and actions filed under the MTCA. The various theories of recovery were based on asserted violations of: the Maryland Declaration of Rights, Article 8 (separation of powers); Maryland Declaration of Rights, Article 14 (Legislature’s consent required to rate or levy an aid, charge, fee, tax or burthen); Maryland Antitrust Act; Maryland Consumer Protection Act; Maryland Constitution, Article III, § 32 (appropriations); Maryland Declaration of Rights, Article 24 (unlawful taking); unjust enrichment; common law action for money had and received; and, civil conspiracy. For each count, Benson sought prospective injunctive relief to enjoin the State from charging, billing, invoicing, and collecting the commission; an award for attorneys’ fees, litigation costs, and interest; and compensatory and punitive damages for herself and each class member.

Dean filed her virtually identical Class Action Complaint on 12 June 2003 in the Circuit Court of Baltimore City. On 24 July 2003, the State filed in each case an omnibus motion to dismiss for failure to state a claim upon which relief may be granted, and also asserted that all claims were barred by the MTCA. The State appended exhibits to its motion and, months later, filed an affidavit in further support of its contentions. The Circuit Court dismissed all of Benson’s and Dean’s claims in a single order entered on 25 June 2004, nearly a year after the State filed its motion to dismiss.

As to Benson’s tort-based claims, the court dismissed them for non-compliance with the requirements of the MTCA. The court found that the MTCA did not authorize class action suits. The court also rejected Appellants’ prayers for punitive damages as not permitted by the MTCA. In addition, the trial judge concluded that Benson brought her complaint prematurely because she filed it only one month after submitting her claim letter to the Treasurer and without awaiting a reply.

The court opined that, because she sought monetary relief, Benson should have waited the sooner of either receiving the Treasurer’s denial of relief or six months from the time of filing her claim with the Treasurer. Thus, having resolved that Benson failed to re ⁶²⁵ ceive a final denial from the Treasurer before she filed her complaint, maintenance of her tort claims was precluded. Benson’s non-tort claims under the Consumer Protection Act and the antitrust statute also were dismissed. The court dismissed the Consumer Protection Act claim because it concluded that the State was protected by sovereign immunity, the remittance of the telephone commission was not an unfair trade practice, and Appellants suffered no actual loss because they would have paid the same amounts to the private telephone companies even had no commission been remitted to the State.

The court dismissed the antitrust claim on sovereign immunity grounds because the State was acting within its legal authority to require the remittance of the telephone commission from the private telephone companies, and because the court was not the appropriate body to decide whether the approved telephone call rates and commission were excessive. The court dismissed all of Dean’s claims as well. The court specifically found that Dean failed to give the State timely notice of her claimed injuries, which began in 1999, because her letter to the Treasurer was not sent until 2003. Thus, Dean’s tort claims were precluded for failure to comply with the MTCA’s notice provisions.

The court also dismissed all of Dean’s claims because she failed to allege in her complaint any facts supporting her claimed injury, concluding that the appended exhibits of her phone bills were insufficient to establish loss. On 2 July 2004, Benson and Dean filed a joint Motion to Alter or Amend Judgment seeking to add several allegations to their complaints, including that each of the plaintiffs “suffered actual injury related to the matters complained of.” Soon thereafter, Benson and Dean filed notices of appeal to the Court of Special Appeals. They then filed a second post-judgment motion with the Circuit Court on 13 September 2004 seeking to amend their complaints to add allegations that the violations were continuing. They argued that the court failed to recognize that Benson’s initial complaint sought only injunctive relief and therefore she complied with MTCA require ⁶²⁶ ments.

The Circuit Court denied the post-judgment motions. We issued a writ of certiorari before the Court of Special Appeals could decide the appeals, Benson v. State, 386 Md. 180 , 872 A.2d 46 (2005).

II

Standard of Review We treat the motion granted in this case as a true motion to dismiss for failure to state a claim upon which relief may be granted because the trial court expressly limited its consideration to the factual allegations of the complaints and ignored the additional factual considerations tendered in the exhibits and affidavit submitted by the State in support of its motion to dismiss. See Md. Rule 2-322(c) (providing that if, in a motion to dismiss for failure to state a cause of action upon which relief may be granted, “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501”). When reviewing the grant of a motion to dismiss for failure to state a claim upon which relief may be granted, we “assume the truth of all well-pleaded, relevant, and material facts in the complaint and any reasonable inferences that can be drawn therefrom.” Muthukumarana v. Montgomery County, 370 Md. 447, 474 , 805 A.2d 372, 388 (2002) (quoting Allied Invest. Corp. v. Jasen, 354 Md. 547, 555 , 731 A.2d 957, 961 (1999)). “Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.” Jasen, 354 Md. at 555 , 731 A.2d at 961 .

Therefore, on appeal, this court determines whether the trial court was legally correct in granting the motion to dismiss. We also must determine whether the Circuit Court abused its discretion in denying Benson’s and Dean’s motions to alter or amend the judgment. Renbaum v. Custom Holding, Inc., 386 Md. 28, 42-43 , 871 A.2d 554, 563 (2005). ⁶²⁷ III. Articles U and 8 of the Declaration of Rights Appellants claim that the collection and remittance of the telephone commission to the State violates Article 14 (no aid, tax, charge, fee or burthen shall be rated or levied without consent of the Legislature) and Article 8 (separation of powers) of the Maryland Declaration of Rights.

We begin by considering whether the MTCA applies to alleged violations of Article 14 and whether a private right of action is available for an alleged violation of Article 14. If a private right of action under Article 14 may be brought, we must determine whether a plaintiff may be awarded damages for its violation, if proven. Thereafter, we shall construe Articles 14 and 8 to determine whether the imposition of the telephone commission is illegal as pleaded. These questions have not been directly raised or decided previously in a reported Maryland case. 6 A. Applicability of the Maryland, Tort Claims Act The Circuit Court concluded that the MTCA’s procedural requirements must be satisfied in order to bring suit on ⁶²⁸ a constitutional tort claim, and found that Benson’s and Dean’s Article 14 claims were precluded for failure to comply with the MTCA.

We hold that the MTCA does not apply to alleged violations of Article 14 of the Declaration of Rights; thus, the trial court was mistaken on this point. In Lee v. Cline, 384 Md. 245, 256 , 863 A.2d 297, 304 (2004), this Court held that the MTCA applied to a constitutional tort claim flowing from an asserted search and seizure violation, and extended to state personnel qualified immunity for such torts if committed within the scope of employment and without malice. We do not extend, however, our reasoning in Lee v. Cline so far as to require that all constitutional tort claims must comply with the requirements imposed by the MTCA. Rather, we hold that a claim for violation of Article 14 is not subject to the requirements of the MTCA because a claim under Article 14 is not compensable in monetary damages, see infra Section III(B).

B. Private Right of Action Under Article H A private right of action for violation of Article 14 may lie because it is a self-executing constitutional provision. 7 Whether a constitutional provision is “self-executing,” so as to make it enforceable judicially, is an issue addressed by the U.S. Supreme Court in Davis v. Burke, 179 U.S. 399 , 21 S.Ct. 210 , 45 L.Ed. 249 (1900). The Supreme Court set forth the elements and characteristics of a self-executing constitutional provision: It supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely ⁶²⁹ indicates principles, without laying down rules by means of which those principles may be given the force of law ... it is self-executing only so far as it is susceptible of execution. Davis, 179 U.S. at 403 , 21 S.Ct. at 212 , 45 L.Ed. at 251 (quoting Thomas McIntyre Cooley, A Treatise on the Constitutional Limitations which Rest upon ths Legislative Power of the States of the American Union 99 (6th ed. 1890)). When a provision is so complete, it may be enforced by the courts without the need of further legislative authority or direction.

Id. We applied this analysis to a claim brought under Article 15 of the Declaration of Rights. In Leser v. Lowenstein, 129 Md. 244, 250 , 98 A. 712, 714 (1916), this Court found some of the provisions of Article 15 to be “prohibitory and self-executing, and require no act of the Legislature to make them effective.” One such clause prohibited the levy of a poll tax. Another was the provision declaring that paupers ought not be assessed for the support of government.

The Court also found two provisions not to be self-executing because legislation was required to give effect to the provisions: the provision declaring the method to be used to set future levies for taxes and the provision charging the General Assembly to set uniform rules providing for separate assessment of land and classifications “as it deems proper.” Leser, 129 Md. at 250 , 98 A. at 714 (quoting Article 15 of the Declaration of Rights). This Court also has determined other constitutional and statutory provisions to be self-executing. See e.g., Casey Development Corp. v. Montgomery County, 212 Md. 138, 150 , 129 A.2d 63, 70 (1957) (finding a tax law self-executing); Hammond v. Lancaster, 194 Md. 462, 476 , 71 A.2d 474, 480 (1950) (finding Article XVI of the Maryland Constitution (referendum power reserved to the people of Maryland) self-executing); Harris v. State, 194 Md. 288, 295 , 71 A.2d 36, 40 (1950) (finding Article 21 of the Maryland Declaration of Rights self-executing) overruled on other grounds, Stewart v. State, 282 Md. 557 , 386 A.2d 1206 (1978). We conclude that Article 14 is self-executing.

Article 14 of the Declaration of Rights provides that “no aid, charge, tax, ⁶³⁰ burthen or fees ought to be rated or levied, under any pretense, without the consent of the legislature.” If action is taken in contravention of Article 14, then the action is voidable by a court. No further legislative action is required to effectuate Article 14. Furthermore, the provision supplies a sufficient rule by means of which the right to be free from aids, charges, taxes, burdens, and fees levied without the Legislature’s consent may be enjoyed and protected. Courts may enforce Article 14 by declaring such charges invalid.

Its provisions are not merely a statement of principles. It is a directive capable of execution. Also, our conclusion that its terms are self-executing is in harmony with the scheme of the Declaration of Rights, particularly when read with Article 8 (separation of powers) and Article 15 (describing some of the duties of the Legislature regarding the levy of taxes). Therefore, Benson and Dean, all other things being equal, could assert private claims under Article 14 of the Declaration of Rights.

C. Private Remedies for Violations of Article H Having concluded that a private right action may lie based on an Article 14 violation, we must decide whether monetary damages may be awarded for its violation, if proven. The question becomes whether a common law action exists already to remedy the violation, or, if an action does not now exist, whether one should be judicially recognized. The Court has employed this common law tort analysis for constitutional claims previously, finding a right to sue for damages, but has done so only when it concluded that the constitutional provision at issue conveyed an individual right — for example, the right to be free from unreasonable searches and seizures or the right to be free from the taking of private property without just compensation. Thus, in Widgeon v. Eastern Shore Hospital Center, 300 Md. 520 , 479 A.2d 921 (1984), we held that a plaintiff could maintain an action for damages when alleging a violation of the Articles of the Declaration of ⁶³¹ Rights addressing searches and seizures and the deprivation of liberty, life, and property because Maryland courts historically have recognized, as an established doctrine, that “where a statute establishes an individual right, imposes a corresponding duty on the government, and fails to provide an express statutory remedy, a traditional common law action will ordinarily lie.” Widgeon, 300 Md. at 536 , 479 A.2d at 929 (Citations omitted).

In Widgeon , we concluded that Articles 24 and 26 were intended to preserve individual liberty and property interests, respectively. Id. In contrast to Articles 24 and 26, Article 14 does not secure or proclaim an individual right; rather, its terms address principles akin to those of federalism, separation of powers, and the government’s authority to tax. Applying common law tort analysis to the claimed Article 14 violation to determine whether an action for damages may lie for its violation, we conclude that it does not.

We also decline to create judicially a monetary damages remedy for its alleged violation. This kind of asserted constitutional violation is best corrected by declaratory or injunctive relief, not damages, because the roots of the Article 14 are not born of the common law action of trespass, like Articles 24 and 26. Although an Article 14 violation is a “constitutional tort” in the sense that it is a violation of a constitutional duty imposed upon government to refrain from levying aids, charges, taxes, burdens, or fees without the consent of the Legislature, it is not one of those individual rights for which a monetary damages remedy should be available. 8 Had Appellants not waived for appellate consideration their Article 24 due process claim asserted in the trial court, perhaps damages might be available were we to conclude that they pleaded sufficiently a claim that the telephone commission was illegal. 9 Be that as it may, we hold ⁶³² that a private right of action may lie for an alleged violation of Article 14; but only declaratory and injunctive relief are available to remedy such a violation. D. Did Appellants Sufficiently Plead Violations of Article H and Article 8?

We now address whether the commission collected and paid to the State violates Articles 14 and/or 8. The answer naturally requires us to construe the language of the Articles. l. Relevant Principles of Constitutional Interpretation The analytical framework applied to interpret the Constitution and Declaration of Rights is quite decided and familiar. We declared in Johns Hopkins University v. Williams, that, “while the principles of the Constitution are unchangeable, in interpreting the language by which they are expressed it will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could not foresee.” 199 Md. 382, 386 , 86 A.2d 892, 894 (1952) (Internal quotations omitted) (Citations omitted).

Thus, while we may not depart from the Constitution’s plain language, we are not bound strictly to accept only the meaning of the language at the time of adoption. Cohen v. Governor of Maryland, 255 Md. 5, 16-17 , 255 A.2d 320, 325 (1969); Boyer v. Thurston, 247 Md. 279, 291-92 , 231 A.2d 50, 57 (1967); Buchholtz v. Hill, 178 Md. 280, 286 , 13 A.2d 348, 351 (1940) (“So it has been said that a constitution is to be interpreted by the spirit which vivifies, and not be the letter which killeth.”). In addition to the plain language of Article 14, we, for the ⁶³³ purpose of determining the true meaning of the language used, may consider the mischief at which the provision was aimed, the remedy, the temper and spirit of the people at the time it was framed, the common usage well known to the people, [ ] the history of the growth or evolution of the particular provision under consideration . .. and to [the] long continued contemporaneous construction by officials charged with the administration of the government, and especially by the Legislature. Johns Hopkins University, 199 Md. at 386 , 86 A.2d at 894 (Internal quotation omitted).

Thus, we construe the Constitution’s provisions to accomplish in our modern society the purposes for which they were adopted by the drafters. Norris v. Mayor and City Council of Baltimore, 172 Md. 667 , 192 A. 531 (1937). ii. Scope of Article 14 We shall hold that the telephone commission in the present case is within the scope of Article 14 because it is a “charge” imposed by the State government. First, we analyze the plain language of the Article.

In this process, we shall consult credible sources from both the time of adoption of Article 14 and our modern era, including Proceedings of the Conventions of the Province of Maryland Held at the City of Annapolis, sin 1774, 1775, & 1776 (1836); various laws enacted in 1776; and recent editions of Black’s Law Dictionary and Webster’s Collegiate Dictionary. See Harvey v. Marshall, 389 Md. 243, 260-61 , 884 A.2d 1171 (2005) (discussing some considerations as to the use of dictionaries, published at both the time a statute is enacted and the present time, to ascertain the meaning of statutory language). 10 ⁶³⁴ Article 14 lists five types of payments made by citizens to their government that cannot be rated or levied without the consent of the General Assembly: “That no aid, charge, tax, burthen or fees ought to be rated or levied, under any pretense, without the consent of the Legislature.” An “aid” is defined as an act of helping, the help given, and also, historically, a tribute paid by a vassal to his lord. Webster’s Eleventh New Collegiate Dictionary 26 (2003). 11 A “charge” is an expense or cost. Black’s Law Dictionary 298 (8 ed.1999); Webster’s Dictionary at 208.

The definition of “charge” has not changed since 1776 when the framers of the Maryland Declaration of Rights employed the word in adopted resolutions. See Proceedings of the Conventions at 244 (stating that the “charge and expense” of erecting and building two courthouses and prisons in two counties will be defrayed by the those counties and assessed with the public and county levy); Proceedings of the Conventions at 293 (resolving that the rivers Potowmack and Pocomoke “ought to be considered as a common high-way, free for the people of both [Maryland and Virginia], without being subject to any duty, burthens or charge”). As the Resolution adopted at the Proceedings of the Conventions in 1776 demonstrates, a “burthen” meant the burden of a payment owed, such as a charge for use of a river. See Proceedings of the Conventions at 293.

A “burthen” is now more commonly called a “burden” and is used as a general term referring to a duty, responsibility, encumbrance, or obligation imposed on a person or property. Black’s Law Dictionary at 208, Webster’s Dictionary at 165. A “tax” is a charge, usually of money, imposed ordinarily by a governmental authority on persons or property for public ⁶³⁵ purposes. 12 Black’s Law Dictionary at 1496; Webster’s Dictionary at 1280. A review of the Declaration of Rights and the Constitution reveals that the definition of tax has not changed since 1776.

A “fee” is a charge for labor, services, or a privilege. Black’s Law Dictionary at 647; Webster’s Dictionary at 459. This definition also has not changed since 1776. See Chapter xxv, § 9, of Acts of 1779 (setting out a list of the fees to be charged for carrying out various judiciary duties and the rates of tobacco to be accepted as payment); Chapter xv, § 4 of the Acts of 1769 (providing that “any fee or fees” claimed to be due to the sheriff under color of office shall be explained to the person paying the fee and a receipt given upon payment).

These five kinds of payment, especially “charge” and “fee,” encompass a wide variety of payments to the government. One shared sense of the words, however, is that they are all used in Article 14 to mean payments imposed by a sovereign on its citizens. That the drafters chose to include all five terms in the provision tends to show that the drafters intended that the scope of Article 14 encompass virtually all payments imposed by the government. Additionally, the clause “under any pretense” modifies the clause: “That no aid, charge, tax, burthen or fee ought to be rated or levied.” We construe this language to mean that calling a true aid, charge, fee, tax, or burden by a different name (such as “commission”) will not shield the exacted payment from the scope of Article 14.

The telephone commission provided for in § 10-503 fits within these broad terms — it is certainly a cost paid to the State by the telephone company and thus fits under the ⁶³⁶ general term “charge.” The commission is also a “fee” from the point of view of the person accepting the inmate’s collect, non-emergency telephone call because the recipient indirectly pays the commission. The State in the present case, citing Goldsborough v. Postal Telegraph Cable Company, 123 Md. 73 , 91 A. 147 (1914), argues that the telephone commission is not implicated by the terms of Article 14 because it is paid as part of a “voluntary” commercial transaction and the commission is taken from charges collected by a third-party for telephone service provided at a State facility. This Court’s decision in Goldsborough , however, does not support the State’s argument because the Court did not hold that a commercial transaction involving the State as a party is exempt from Article 14. In Goldsborough , the State sought payments due on a lease originally executed between the former private owner of a bridge (the State purchased all property and rights to the parcels containing the bridge) and a telegraph company running telephone lines across the adjacent land and bridge.

The telegraph company argued that it could not be required to make payments to the State as the successor lessor under the lease because the Legislature had not specifically consented to the payments. The Court found that the lease had been purchased by the State with the authorization of the Legislature by way of a statute directing the acquisition of the bridge. The fact that the lease payments were created by a pre-existing contract between two private parties distinguishes Goldsborough from the present case. The telephone commission in the present case was born of § 10-503 and is a charge imposed by the State government.

Thus, the State’s argument fails. iii. Construction and Application of Article 1J/. .As noted supra, Article 14 provides that “no aid, charge, tax, burthen or fees ought to be rated or levied, under any pretense, without the consent of the Legislature.” We now consider the plain meaning of the terms: rated, levied, and consent. ⁶³⁷ “Rated,” when used as a verb with regard to money, means to allot or to value. Webster’s Dictionary at 1032. In laws passed in the 1770s, use of the verb “rate” was specifically tied to money — either fines, taxes, or fees paid to government officials.

See Chapter xx of the Acts of 1773 (providing that the sheriff shall be fined by the court’s justices for certain conduct, a sum not exceeding three thousand pounds of tobacco, “rating tobacco at ten shillings per hundred, to be applied towards defraying the charge of the said county”); Chapter xvii of the Acts of 1782 (providing that the appointed collector of certain specified taxes must record in a book “the persons rated and things assessed, to call upon the county commissioners of the tax to know the yearly valuation of property within said town, and to regulate the tax upon every hundred pounds worth of property”). “Levied,” used as a verb, means to impose or to collect payment of money or property by legal authority or to require by authority. Webster’s Dictionary at 715. This definition appears to have remained constant since the time Article 14 was adopted in 1776. See Proceedings of the Conventions at 160 (“Resolved, That the committee forbear to levy the said fines until the end of the next session of convention, and to stay all further proceedings therein.”); Proceedings of the Conventions at 157 (“And, upon non-payment thereof may, by warrant under their hands, empower any person they shall judge proper to levy the same, by distress and sale of the goods of the offender.”); Proceedings of the Conventions at 256 (“[A]n act of assembly passed, directing the justices of Talbot county to levy on the inhabitants of that county forty-five pounds of tobacco per tax.... ”).

The most significant term in Article 14 is “consent” because it is an imperative directed to the Legislature. To “consent” is to voluntarily give assent, to agree, or to approve. Webster’s Dictionary at 265. Its modern meaning is consistent with its 1776 meaning.

See Chapter vii, § 9 of the Acts of 1777 (providing that a male under the age of 21 or a female under the age of 16, not before married, shall not be married “without the consent of the parent or guardian of every such ⁶³⁸ person” or else the minister be forced to pay 500 pounds current money); Proceedings of the Conventions at 299 (providing, in a draft of the Declaration of Rights under consideration and later adopted with amendments, that “no soldier ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such manner only as the legislature shall direct”). The plain meaning of the pertinent language therefore is that payments imposed by the State should not be allotted, valued, imposed, or collected without the authorization or approval of the Legislature. The structure of the sentence is important. The Framers did not express their will in the imperative: The Legislature shall rate and levy taxes and charges.

Rather, the Legislature must consent to the rate or levy of payments to the State. To read into the clause a requirement that the Legislature also must set the amount of all such payments in each instance is to depart from the Article’s plain language and read into it an intent that is not evident. Our review of the available written records from the creation of Article 14 reveals no intention to impose a nondelegable duty upon the Legislature to set the amount of every government charge. Article 14 was part of the original Declaration of Rights, although it then was designated Article 10.

Appellants cite notable historical texts and cases in their Brief for the proposition that the Framers intended that the Legislature be required to set the amount of all aids, charges, taxes, burdens, and fees as a retaliation against the Proprietary fee system in effect in Maryland before Independence. Having reviewed these texts and others, we conclude that, though they do provide context and illumination for our interpretation of Article 14, they do not support Appellants’ argument. The Proprietary structure enforced in Maryland while it was a colony of Great Britain allowed the proprietor and his agents to set fees and charges without the approval of the officials elected by the citizens of Maryland. It was the lack of consent by the people’s legislative representatives that was ⁶³⁹ denounced as the evil which the Framers of the Maryland Constitution sought to remedy.

Our construction of the meaning of the Article is strengthened by a statement from the Constitutional Convention in 1776 that provided instructions for the deputies representing Maryland in Congress. If reconciliation could be reached with the British crown, then the representatives should tak[e] care to secure the colonies against the exercise of the right assumed by parliament to tax them, and to alter and change their charters, constitutions, and internal polity, without their consent, — powers incompatible with the essential securities of the lives, liberties, and properties of the colonists. Proceedings of the Conventions at 83. In 1775, the convention resolved unanimously that, because of the “long premeditated, and [then] avowed design of the British government, to raise a revenue from the property of the colonists, without their consent, on the gift, grant, and disposition of the commons of Great Britain” and other reasons, it was “firmly persuaded that it [was] necessary and justifiable to repel force by force, [so did] approve of the opposition by arms, to the British troops employ[ed].” Proceedings of the Conventions at 17-18.

Article 14 codifies the catch-phrase of the Revolution: No taxation without representation. Article 14 has undergone only one arguably substantive change since its adoption in the Constitution of 1776. At the Constitutional Convention of 1850-1851, the provision was amended from: “That no aid, charge, tax, burthen, fee, or fees, ought to be set, rated or levied, under any pretense, without the consent of the legislature” to “That no aid, charge, tax, burthen or fees, ought to be rated or levied, under any pretense, without the consent of the Legislature,” removing the word “set” from the provision. The records of the proceedings, committee reports, and debates of the 1850-1851 Convention offer little assistance in understanding why the change in language occurred.

Apparently, the original version of Article 14 (then numbered Article 12) immediately preceding the Convention was passed out of committee without ⁶⁴⁰ change. During the Convention proceedings, Article 14 was read aloud and no amendments were offered by the Convention members. Evidently, no debate took place. At the publication of the post-convention version of the Declaration of Rights and Constitution, however, the word “set” disappeared.

With the removal of the word “set,” however, it became even plainer that the Legislature is not required to set expressly the amount of each aid, charge, tax, burden, or fee imposed by the State. Having construed Article 14 to include within its scope the telephone commission here and having found that Article 14 requires the Legislature’s consent before a governmental charge or fee may be rated or levied by a body to which the power of setting the amount of the charge or fee has been delegated, we must determine whether the Legislature consented to the telephone commission at issue in this case. The Legislature enacted §§ 10-502 and 10-503, which set up the Inmate Welfare Fund and financed it by the “profits derived from the sale of goods through the commissary operation and telephone and vending machine commissions.” § 10-503(a)(2)(i)(1). We think this is clear evidence of the Legislature’s consent to the imposition of a telephone commission.

We hold, therefore, that the telephone commission charge does not violate Article 14 of the Maryland Declaration of Rights. 13 IV. Application of Article 8 Appellants argue that the telephone commission concomitantly violates separation of powers principles. Article 8 of ⁶⁴¹ the Declaration of Rights provides that the “Legislative, Executive, and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” In 1922, the Court held that there are certain powers only the Legislative body possesses and which it may not delegate. One of these nondelegable powers is to enact legislation.

In Brawner v. Curran, 141 Md. 586, 601 , 119 A. 250 (1922), we examined a statute that was to be submitted to qualified voters in the State general election of 1922. The statute proposed to afford compensation to persons who served in active duty during World War II. The enactment provided that it must be accepted by the voters of Maryland by referendum in order to become effective. Brawner, 141 Md. at 592 , 119 A. 250 .

We held the enactment unconstitutional as an unlawful delegation in contravention of separation of powers principles. We based our conclusion on the text of Article III, §§ 1 (Legislature shall consist of two branches), 27 (bills originate in either House of the General Assembly, three readings required), 28 (majority required for passage of bill or resolution, vote shall be recorded), 29 (style and subject-matter of laws), and 30 (presentment to Governor of bills passed) and Article II, § 17 (Governor to approve bill by signature or reject it by return with objections noted) of the Maryland Constitution. These provisions of the Constitution, we concluded, “confer upon the General Assembly of Maryland the exclusive power of making laws in that State” because the provisions “definitely and inevitably place