Board of Welfare v. Listman

Parke, J., delivered the opinion of the Court. The appeal of Charles J. Butler and others in their official capacity as members who constitute The Board of Welfare of the State of Maryland is from an order of the Superior Court of Baltimore which granted a writ of mandamus commanding the State Board of Welfare to certify to the State Employment Commissioner and the State Comptroller that one William Frederick List-man, the petitioner for the writ, is “entitled to a return of salary in amount of $715 deducted over a period from October 1st, 1933, to September 30th, 1937, payable from funds available therefor or from appropriations later provided to meet just, legal and moral claims.” The quotation is from the order which followed the overruling of a demurrer to the petition for the writ, an answer by the respondent, and the sustaining of a demurrer to that answer. No testimony was taken, and the appeal is from the order which was immediately passed. The facts are disclosed by the pleadings.

Ghingher v. Fanseen, 166 Md. 519, 525 , 172 A. 75 . The petitioner was employed as a guard'at the Maryland Penitentiary on April 1st, 1932, subject to the usual probationary period. He entered this service pursuant to the provisions of the State Merit System (Code, art. 64A). After an examination held by' the State Employment Commissioner, the petitioner was appointed by the Board of Welfare from the submitted eligible list.

He began his employment at a yearly salary of $1,500, in accordance with the provisions of section 681A of article 27 of ⁴⁷⁵ the Code (Supp. 1935), and section 13 of article 64A (Merit System) of the Code. The payments of salary to the petitioner have been made in accordance with the appropriations of the budget for each fiscal year, by requisition upon the State Treasury, after approval by the Employment Commissioner and by the State Comptroller. In the budget for the fiscal years ending September 30th, 1934 and 1935, it was provided that the salary of guards in the class of which the petitioner is a member should be reduced by eleven per cent, in conformity with the policy of retrenchment adopted by the General Assembly by making a uniform graduated reduction in salary of all the employees of the State. Acts of 1933, ch. 597, at p. 1232.

The same reduction was made for the fiscal years of 1936 and 1937. Acts of 1935, ch. 92, at p. 245. The total amount of the reductions thus made is affected by the facts that at the end of two years of service as a guard the petitioner received an annual increase of $100 in salary; and another increase of $100 was given at the end of the period of five years of service. These additions to his compensation were subjected to the same rate of reduction, so that the total deductions for the whole period, which ended on September 30th, 1937, aggregated the sum of $715.

The diminished salary was regularly paid to the petitioner as it became due. The Board of Welfare has no authority and no funds to pay the petitioner any money. Neither is there money in the State Treasury for the payment of the petitioner’s claims. It is true that chapter 92 of the Acts of 1935, under subtitle “IV — Contingent Appropriations from General Funds”, made by “Item 29” an appropriation for use, inter alia, in the restoration of salary reductions, omissions and reductions in personnel or to be expended for the same and