Dorsey v. Petrott

Parke, J., delivered the opinion of the Court. The appeal in this case is from an order of the Circuit Court for Anne Arundel County dismissing the petition of the appellants for a writ of mandamus to compel the Secretary of State to refuse to proceed with the reference of chapter 353 of the Acts of the General Assembly of Maryland, 1939, to a vote of the electorate under the provisions of the Referendum Amendment, article XVI of the Constitution. All the procedural formalities for the submission of the Act have been complied with, and ²³⁴ the sole question on the demurrer to the petition, and on this appeal, is whether chapter 353 is a referable act under the Amendment. The problem is one of constitutional law, and its answer depends upon whether the Act is a law making an “appropriation for maintaining the State Government.” Chapter 673 of the Acts of 1914 of the General Assembly of Maryland, which was ratified by the vote of the State at the election held on November 2nd, 1915, added article XVI, title, “Referendum,” to the Constitution of the State.

By this amendment the people reserved to themselves power by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act, of the General Assembly of Maryland, if approved by the Governor or, if passed by the General Assembly over the veto of the Governor. The power thus reserved is known as the Referendum, and its scope, mechanism, operation and effect are prescribed and defined in the six sections of article XVI. The general application of the Referendum is subject to two express limitations which are found in sections 2 and 6. The latter exception is that “No law or constitutional amendment, licensing, regulating or prohibiting, or submitting to local option the manufacture or sale of malt or spirituous liquors shall be referred or repealed under any Act [sic] of the provisions of this Article.” Beall v. State, 131 Md. 669, 673 , 103 A. 99 ; Strange v. Levy, 134 Md. 645, 648 , 107 A. 549 ; Poisel v. Cash, 130 Md. 373, 374 , 100 A. 364 .

The exception quoted has no relation to the problem at bar. The limitation in section 2 is the one with reference to which the ■pending controversy is concerned. The portion of that section which is to be construed is found in the two sentences at its conclusion: “No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section. The increase in any such appropriation for maintaining or ²³⁵ aiding any public institution shall only take effect as in the case of other laws, and such increase or any part thereof specified in the petition, may be referred to a vote of the people under petition.” Dinneen v. Rider, 152 Md. 343, 354, 136 , A. 754; Berlin v. Shockley, 174 Md. 442 , 199 A. 500 .

Since the statute for which a referendum is sought provides for no appropriation for maintaining or aiding any public institution within the contemplation of the Referendum of the Constitution, the problem of construction is thus restricted to the words “No law making any appropriation for maintaining the State Government * * * shall be subject to rejection or repeal under the Section.” The subject matter of the Act is the conservation of the fisheries of tidewater Maryland, which is undoubtedly a function of government. These fisheries constitute one of the most important and valuable natural resources of the State, and their protection, preservation, development and maintenance are an imperative duty of Government. So, if the Act under consideration is a law making an appropriation for the maintenance of the tidewater fisheries, the Act would not be referable to the electorate. The inquiry is narrowed, therefore, to whether the Act is. a “law making an appropriation” within the meaning of the Referendum Amendment, when construed in connection with other related provisions of the Constitution.

To know what the terms “appropriation” here means it is necessary to look to the Constitution of the State. By section 32 of article III of the Constitution no money may be drawn from the Treasury of the State without an appropriation by law which shall distinctly specify the sum appropriated and the object to which it shall be applied, except that a contingent fund may be placed at the disposal of the executive, who shall report to the General Assembly at each session the amount expended and the purposes to which it is applied. ²³⁶ Since an early stage in its legislative and constitutional history, a law making an appropriation has had a definite significance. In the first Constitution of Maryland, which was adopted in 1776, the House- of Delegates alone had the power to originate money bills. Constitution of 1776, art.

X. For the declared. purpose of preventing altercation about what is a money bill, the Constitution promulgated its nature in the words “no bill, imposing duties or customs for the mere regulation of commerce, or inflicting fines for the reformation of morals, or to enforce the execution of the laws, by which an incidental revenue may arise, shall be accounted a money bill; but every bill, assessing, levying, or applying taxes or supplies, for the support of government, or the current expenses of the State, or appropriating money in the treasury, shall be deemed a money bill.” Constitution of 1776, art. XI; Niles on Maryland Constitutional Law, pp. 361, 362. So, it may be said that this definition of money bills embraces bills providing for the raising of public revenue and for the making of grants or appropriations of the public money in the treasury. 2 Bouvier’s Law Dictionary (Rawle’s Third Revision) 2239, “Money Bills.” In the signification given the word, an appropriation, in the constitutional sense, would apparently relate to the withdrawal of public funds in the treasury by bill or legislative grant. It will be seen, however, that this is too restricted a definition, and that an appropriation may be by legislative act or constitutional declaration.

The public funds in the treasury were later further protected by an amendment to the Constitution which was proposed by chapter 339 of the Acts of 1843 and which became a part of the Constitution after its confirmation, on February 14th, 1845, by chapter 86 of the Acts of 1844. Const. of 1776,' art. LIX; Niles on Maryland Constitutional Law, pp. 393, 371. The amendment so made was that “No money shall be drawn from the Treasury of the State but in consequence of an appropriation made by law.” ²³⁷ The second Constitution of the State was adopted in 1851.

By its provisions money bills no longer were required to originate in the House of Delegates but could be initiated indifferently in either the House of Delegates or in the Senate, Constitution of 1851, art. Ill, sec. 18; Niles on Constitutional Law, p. 408, but the restriction imposed with reference to the disbursement of state money was enlarged by the mandate: “No money shall be drawn from the treasury of the State, except in accordance with an appropriation made by law, and every such law shall distinctly specify the sum appropriated, and the object to which it shall be applied: Provided, that nothing herein contained shall prevent the legislature from placing a contingent fund at the disposal of the executive, who shall report to the legislature of each session the amount expended and the purposes to which it was applied. An accurate statement of the receipts and expenditures of the public money shall be attached to and published with the laws after each regular session of the general assembly.” Constitution of 1851, art. 111, secs. 20, 22; art. VI, sec. 2; Niles on Constitutional Law, pp. 408, 409, 422.

The constitutional section quoted remained unchanged, and was incorporated in its entirety in the third Constitution of 1864, art. 3, sec. 31. Constitution of 1864, art. 111, secs. 31, 33; art. VI, sec. 3; Niles on Constitutional Law, pp. 446, 447, 462. Except for the addition of an inhibition of a withdrawal “by any order or resolution,” the section was adopted and continued in the fourth and present Constitution of 1867, art. 3, sec. 32.

Constitution of 1867, art. 111, secs. 32, 34; art. VI, sec. 2; Niles on Constitutional Law, pp. 490, 491. The change noted was apparently made without discussion, Perlman’s Const. Convention of 1867, p. 273, and its effect is to exclude a legislative order or resolution from the category of an appropriation within the meaning of the provision.

Since the Constitution of 1867, the phrasing of the section is identical with that of the Constitutions of 1864 and 1851, except that the addition mentioned modifies the intro ²³⁸ ductory clause before the proviso so that it now reads: “No money shall be drawn from the Treasury of the State by any order or resolution, nor except in accordance with an appropriation by law; and every such law shall distinctly specify the sum appropriated and the object to which it shall be applied.” The provisions of the Constitution were held in McPherson v. Leonard, 1868, 29 Md. 377 , to have been sufficiently complied with by a statute which directed the Comptroller to pass upon and audit certain claims for uniforms supplied to members of the militia of the state pursuant to the authorization of statute, at a cost of not more than $20 a uniform, and to draw his warrant upon the Treasurer in favor of each claimant for the amount so found rightly to be due, and the Treasurer was commanded to pay these warrants out of any money thereafter in the treasury, not otherwise appropriated, provided the aggregate amount of said warrants should not exceed $300,000. There was a dissent from this decision on the ground that the appropriation of public funds thus made did not specify the sum appropriated and the object to which it shall be applied, on the theory that the appropriation was conditional, since it was to have no effect if the sums found by the Comptroller would exceed the limitation prescribed. The prevailing opinion adopted a different view. The decision was fundamentally that a compliance with the constitutional mandate does not exact specification to a particular degree, but is effected if the constitutional conditions imposed are ascertained by the terms of the appropriation.

The court applied the maxim Id cerium est quod cerium reddi potest. The object to which the sum was to be applied was distinctly specified, and its aggregate would be ascertained by the audit of the Comptroller as provided by the statute. Furthermore the act under consideration directed that the warrant of the Comptroller should be paid out of any money thereafter in the treasury not otherwise appropriated, and, as observed by the court: “This is certainly an appropriation, and a fund is ²³⁹ dedicated to its payment.” The certainty of the sum is supplied by the provision that the aggregate of the Comptroller’s warrant shall not exceed §300,000, which is a specific fixation of the amount appropriated. The sum thus delimited is not deprived of its specific nature by the fact that the amount may not be wholly disbursed.

An earlier case defined an appropriation in another permitted form. In Thomas v. Owens, 1853, 4 Md. 189 , the salary of the Comptroller for the period of twelve months had been provided for by the Legislature in the general appropriation act, but had not been so provided for an immediately prior period of twenty-one days during which the salary likewise accrued due. At the time the Constitution declared that “No money shall be drawn from the treasury of the State, except in accordance with an appropriation made by law.” Since no act of the General Assembly had been passed which covered the antecedem period named, it was argued that no appropriation by law had been made, and hence the Treasurer was forbidden to honor the warrant of the Comptroller covering this period. The appellate court held this is too narrow a construction; and that, from the tenor of the whole instrument, it is clear that the mandate of the organic law that the Comptroller “shall receive an annual salary of two thousand, five hundred dollars,” which “shall not be diminished,” was an appropriation by constitutional mandate of a more solemn intendment than if made by an act of the General Assembly. 4 Md. at pages 224-228.

Groome v. Gwinn, 43 Md. 572, 597 . Similarly within this class of an appropriation by a constitutional provision is the dedication of the School Fund to educational use by section 3 of article VIII of the Constitution of 1867. The mandate there is that “The School Fund of the State shall be kept inviolate, and appropriated only to the purposes of education.” See Weddle v. School Commissioners, 94 Md. 334 , 51 A. 289 . ²⁴⁰ Again, the Constitution prescribes that no debt is to be contracted by the Legislature, unless such debt shall be authorized by a law providing for the collection of an annual tax or taxes sufficient to pay the interest on the debt as it falls due and also to discharge the principal thereof within fifteen years from the time of the contracting of the debt. The money so to be collected is not to be used for any other purpose until the interest and debt are fully paid.

Const. of 1851, art. III, sec. 22; Const. of 1864, .art. III, sec. 33; Const. of 1867, art. III, sec. 34.

It is evident that the Referendum Amendment did not mean to include within the purview of its operation a statute to raise revenues for these specific purposes by a levy of taxes or by the imposition of other fiscal measures. The act for these purposes and the moneys so procured are, therefore, an act and a fund for the maintenance of the State Government; and, so, the act is excepted from the Referendum Amendment. There is no basis to assume that a law passed pursuant to a constitutional requisite and in fulfilment of an authorized undertaking whereby funds had been procured for public use is subject to repeal as a law within the meaning of that term as used in the Referendum Amendment. Nor is there any sound basis for the construction that a law imposing or providing for a tax levy or other means of raising revenue for the maintenance of the state government is a law referable to the electorate pursuant to the terms of the Referendum Amendment.

If such a law should fail to comply with the conditions created by section 32 of article III of the Constitution, it would be ineffective as an appropriation because of this failure, but it would not thereby become a law within the Referendum Amendment. The approval or rejection by popular vote under the Referendum Amendment would neither validate nor invalidate an act which was inherently unenforceable for failure to fulfil the con-, ditions prescribed for the withdrawal of public money from the Treasury. ²⁴¹ The determinative characteristics of an appropriation for maintaining the State Government at the time of the adoption of the Referendum Amendment in 1915 were not fundamentally affected by the Budget Amendment of 1916 (see Laws 1916, ch. 159), which introduced, nevertheless, an altered fiscal procedure. The Budget Amendment was not designed to interfere with the operation of the Referendum Amendment. Its purpose was to require that all appropriations by the General Assembly of money out of the treasury should be by either a budget bill or a supplementary appropriation bill.

Baltimore v. O’Conor, 147 Md. 639, 648-651 , 128 A. 759 . If there be any inconsistency, the Budget Amendment is declared to prevail. Const, art. Ill, sec. 52, and section D (Fourth) (Code, vol. 1, p. 108).

The budget bill is prepared by the Governor and submitted to the General Assembly. Each budget is divided into two parts. The first part is designated “governmental appropriations,” and shall embrace an itemized estimate of appropriations: (1) For the General Assembly as certified to the Governor in the manner provided; (2) for the Executive Department; (3) for the Judiciary Department as provided by law, certified to the Governor by the Comptroller; (4) to pay and discharge the principal and interest of the debt of the State of Maryland in conformity with section 34 of article III of the Constitution, and all laws enacted in pursuance thereof; (5) for the salaries payable by the State under the Constitution and laws of the State; (6) for the establishment and maintenance throughout the state of a thorough and efficient system of public schools in conformity with article VIII of the Constitution and laws of the State; (7) for such other purposes as are set forth in the Constitution of the State. The second part of the Budget is denominated “general appropriations,” and shall include all other estimates of appropriations.

The General Assembly shall not amend the budget bill so as to affect either the obligations of the State under section 34 of article III of the Constitution, or the pro ²⁴² vision made by the laws of the State for the establishment and maintenance of a system of public schools or the payment of any salaries required to be paid by the State of Maryland by the Constitution thereof; and the General Assembly may amend the bill by increasing or diminishing the items therein relating to the General Assembly, and by increasing the items therein relating to the judiciary, but, except as there specified, may not alter the Budget Bill except to strike out or reduce items therein, provided, however, the salary or compensation of any public officer shall not be decreased during his term of office. When the budget bill is passed by both houses of the General Assembly it shall be a law immediately without further action by the Governor. After the budget bill is finally acted upon by both houses, other appropriations may be considered, and supplementary appropriation bills may be passed, but these are not valid unless (1) every such appropriation shall be embodied in a separate bill limited to some single work, object or purpose therein stated; (2) such bill shall provide the revenue necessary to pay the appropriation thereby made by a tax, direct or indirect, to be laid and collected as shall be directed in said bill, whose prescribed passage is subject to the provisions that it be presented to the Governor of the State as required by section 17 of article II, and thereafter all the provisions of this section as to approval, veto and reconsideration, and passage over his veto as thereby required shall apply. Code (1924) vol. 1, pp. 105-108.

It is apparent from this summary of its relevant provisions that the Budget Amendment is designed to provide the general appropriation bill which, with the authorized supplementary appropriation bills, embraces, by constitutional declaration, all appropriations for governmental purposes. Thus, by force of the Budget Amendment, all authorizations for the disbursements of state funds must be by the budget bill or by such a supplementary appropriation bill as is provided by the Budget Amendment. Baltimore v. O’Conor, 147 Md.