Police Pension Cases

Boyd, C. J., delivered the opinion of the Court. 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, section 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 he 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 (717 of Revised Charter of 1915) referred to money received from taxes, and in case of a deficiency the hoard was authorized to issue certificates and raise therefrom a sum not exceeding $50,000 to meet the exigency. The boaiffi 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 he 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 he 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 he paid by tbe 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, cleric 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 7760 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 soction 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 he 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 there^ foro 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. 156,) 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 Eund $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 Eund.” 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 1. Mes. E. E. MoCleoteham'.

The first case in the record is that of Mrs. McClenehan. She was appointed matron on January 28, 1900, and continued in that capacity until the 9th day of July, 1912, when she was dismissed by the Board, after an examination of physicians, who said she had Bright’s disease and rheumatism, without any provision for future pay. She paid $30, being for the three years as required by section 777A, and the two per cent, of her salary from the year 1906 (when matrons were included) until she was dismissed. Chapter 600’ of Acts of 1914, after stating in the preamble that she had contributed to the pension fund and was obliged to retire on account of serious illness, whereby she had been incapacitated from work and from' earning a livlihood, directed the Board to pay her $7.50 a week during her life out of the Special Fund.

She had not been in service for 16 years, as' required by section 777. It is contended by the appellant that section 75 6A governs her case, and leaves discretionary with the Board, but it would seem clear that that section -does not apply. That was passed in 1912, six years after matrons were given the privileges of section 777, but expressly limits the relief to “any officer of police, policeman, detective, clerk or turnkey,” and does not include matrons. There was then no general law in existence when tire Act of 1914 was passed,which included Mrs. McClenehan.

The question then is whether such an Act was in conflict with Article 3, section 33 of the Constitution. It provides that, “the General Assembly shall pass no special law for any case for which 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 become1 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. Tt 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 snob 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, 47 Md. 145 , the Act of 1876, Chap. 220, required the Mayor and City Council of Baltimore to take charge of and maintain as a public highway a bridge known as “Harman’s Bridge.” On their refusal to do so Pumphrey filed a petition for a mandamus to compel them to do1 so. Amongst other defenses this provision of the Constitution was relied on. This Court said, through Ciiiee Judge Babtol: “In the public local laws relating to Baltimore City, no provision is made for the acquisition of the bridge in question, and the ascertainment of the amount to be paid to the owners in the manner contemplated and directed by” former Acts referred to. It was held that the Act was constitutional and valid.

In O’Brian & Co. v. Co. Commrs. of Balto. Co., 51 Md. 15 , the Legislature passed a special Act in reference to the opening of Wilkens avenue. The defense was taken that the General Laws provided a mode for the opening of any new road, or the widen- ³²² ing, straightening, altering or closing, up an old road. The Court said: “As recited in the preamble, There were special circumstances in the case of "Wilkens avenue requiring special legislation in regard thereto’; and as the purposes of the Act could not be accomplished under any existing general law, its enactment was of course not within the prohibition contained in the Constitution.

Art. 3, See. 33.” In Hodges v. Balto. Union Pass. Ry. Co., 58 Md. 603 , it was held that as there was no general law conferring the rights, and prescribing the terms and conditions on which the defendant was to construct and operate its railway, on certain streets in the City of Baltimore, the Act then in question was not in conflict with this section of the Constitution.

In Ganz v. Carter, 77 Md. 1, it was contended that the powers given to the Fidelity & Deposit Company to become sole surety in all cases where two or more sureties were required, etc., was a special law, within the meaning of this section, but this Court held that as there was no general law providing for corporate security in such cases the Act was valid. See also Revell v. Annapolis, 81 Md. 1 ; Baltimore v. United Ry. & E. Co., 126 Md. 39 , and other cases where this provision of the Constitution has been passed on. The cases relied on by the appellant are clearly distinguishable from this. In Prince George’s County v. B. & O. R. R. Co., 113 Md. 179 , there was a general law clearly covering the crossings involved.

So in the case of Baltimore v. Starr Church, 106 Md. 281 ., the exemption was' invalid because the statute was within this provision of the Constitution and for other reasons. Jc 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