Thrift v. Laird

Burke, J., delivered the opinion of the Court. A Public Service Commission was created and established by the Act of 1910, Chapter 180, p. 338. It is known as the “Public Service Commission Law.” The title of the Act is as follows: “An Act to create and establish a. Public Service Commission, and prescribing its powers and duties, and to provide for thé regulation and control of Public Service Corporations and Public Utilities, and making appropriations therefor.” The second section of the Act provided for the appointment, qualification, tenure of office, and salaries of the members of the Commission, which was to consist of three persons.

This section further declared that: “The salary of each commissioner shall be three thousand dollars ($3,000.00) per annum, payable out of the State Treasury of the State of Maryland; and in addition to said sum of three thousand. dollars per annum, the chairman of said Commission shall also-receive the sum of three thousand dollars ($3,000.00) per annum, which shall be paid out of its funds by the Mayor and City Council of Baltimore to said chairman of said Commission as an employee of said munic-, ipal corporation; and each of the other two commissioners shall receive, in addition to said three thousand dollars per ⁵⁸ annum aforesaid, the sum of two thousand dollars ($2,000) per annum, which shall be paid out of its funds by the Mayor and City Council of Baltimore to each of said other two commissioners, as employees of said municipal corporation.” The Act made it the duty of the .Governor, upon the recommendation of the Commission, to appoint an attorney at law of the State of Maryland to be and act as the general counsel to the Commission at an annual salary of three thousand dollars, and it was further provided by section 2, that “the general counsel shall also receive, as additional compensation, the sum of eighteen hundred dollars per annum, which shall be paid out of its funds by the Mayor and City Council of Baltimore to said general counsel, as an employee of said municipal corporation.” The Act imposed the duty upon the Mayor and City Council of Baltimore and directed and required it “to pay out of its funds the salaries and compensations provided and prescribed by this Act to be paid by it, and it shall pay said salaries and compensations to the said several commissioners and general counsel of said Commission in monthly instalments, payable at the same time and in the same manner in all respects as the salary and compensation of the Mayor of said municipal corporation is paid to him by it.” By the general ordinance of estimates for the year 1914, which was approved by the Mayor on the 15th of December, 1913, the Mayor and City Council made appropriation for the payment of the salaries and compensations provided and prescribed by the Act in this form: “The Public Service Commission (subject to the opinion of the city solicitor as to the legality of the law), eight thousand eight hundred dollars ($8,800.00).” The Mayor and City Council paid in bimonthly installments of $125.00 to the chairman, and $83.33 to each of the other two members of the Commission, and $15.00 to the general counsel, until the 29th day of May, 1914, the several respective sums made payable by the City ⁵⁹ under section 2 of the Act. On that date the pay-roll of the Commission was presented to the comptroller, James F. Thrift, for his warrant for the payment by the city register of Baltimore City, at the same time and in the same manner as the salary of the Mayor is paid, for the respective sums payable on the first day of June, 1914, for the period between the 15th day of May, 1914, and the 1st day of June, 1914. The comptroller refused to give his warrant, and returned the pay-roll to the Commission, and stated that he did so upon the advice of the city solicitor, who had previously advised the Mayor that the provisions of the Public Service Commission Law imposing a part of the salary of members of the Commission upon the Mayor and City Council of Baltimore were null and void, and should not be obeyed by the comptroller or any other official of the municipality. The appellee was then the chairman of the Public Service Commission, and there was due him by the Mayor and City Council of Baltimore under the provisions of the Act the sum of $125.00, and if the provisions to which reference has been made, and which imposed upon the City a portion of the salaries of the members of the Commission and its general counsel are valid, it was the clear and imperative duty of the City to have paid the appellee the sum due.

Hpon the refusal of the comptroller to issue his warrant for the payment of said sum, the appellee, on the first day of July, 1914, instituted an action of mandamus in the Superior Court of Baltimore City against the comptroller in which he prayed that James F. Thrift, the comptroller of Baltimore City, be commanded “to draw his warrant in the usual manner upon the city register for the payment to your petitioner out of the treasury of the Mayor and City Council of Baltimore of the bi-monthly instalment of salary which became due to him as aforesaid on the first day of June in the year 1914, for the period between the fifteenth day of May, in the ⁶⁰ year 1914, and the first day of June, in the year 1914,' that is to say, the sum of $125.00.” The comptroller answered the petition, and set out fully the reasons why the order should not he granted. Briefly, but substantially stated, these reasons are that those provisions of the Act which imposed the obligation upon the Mayor and City Council to pay the respective sums therein specified were null and void: First, because they violated section 1, Article 15 of the Constitution of Maryland; secondly, because the Act of 1910, Chapter 180, contravenes section 29, Article 3 of the Constitution; thirdly, because the Act is a. violation of the Fourteenth Amendment of the Constitution of the United States, in that it attempts to deprive the City of Baltimore, and its tax-payers who furnish its funds, of its property without due process of law; and fourthly, that if the expression in the Act of 1910, Chapter 180, that the chairman of the Public Service Commission should receive $3,000 and each of the other members $2,000 and the general counsel $1,800 per annum, “which shall be paid out of its funds by the Mayor and City Council of Baltimore, as employees of said municipal corporation,” were to be construed to make said chairman, members and general counsel city employees, then the provisions would be null and void-under Article 35 of the Declaration of Rights. The appellee demurred to the answer, and the Court, after full argument, sustained the demurrer. The appellant, - as stated in the record, “waived leave to amend his answer,” and the Court on the 21st day of September, 1914, ordered the ■writ of mandamus to issue as prayed.

From this order the comptroller has prosecuted this appeal. It is to be observed that the Act allows to each commissioner a salary of $3,000 payable by the State, and in addition the sums specified in the Act payable by the Mayor- and City Council of Baltimore. The office of Public Service Commissioner is, therefore, a statutory office with a salary attached in excess of $3,000. The main question in the case ⁶¹ is -whether it is within the power of the Legislature to attach to an office of statutory creation a larger salary than $3,000.

This the Legislature has done with respect to this office, and we will now proceed to consider the reasons urged against the constitutionality of its act. These reasons will he considered in the following order: Does the Act violate section 1, Article 15 of the Constitution? That section is here transcribed : “Every person holding any office created by, or existing under the Constitution or laws of the State (except Justices of the Peace, Constables and Coroners), or holding any appointment under any Court of this State, whose pay or compensation is derived from fees or moneys coming into his hands for the discharge of his official duties, or in any way growing out of or connected with his office, shall keep a book in which shall be entered every sum or sums of money received by him, or on his account, as a payment or compensation for his performance of official duties, a copy of which entries in said book, verified by the oath of the officer by whom it is directed to be kept, shall be returned yearly' to the Comptroller of the State for his inspection, and that of the General Assembly of the State, to which the Comptroller shall, at each regular session thereof, make a report showing what officers have complied with this section; and each of the said officers, when the amount received by him for the year shall exceed the sum which he is by law entitled to retain as his salary or compensation for the discharge of his duties, and for the expenses of his office, shall yearly pay over to the Treasurer of the State, the amount of such excess, subject to such disposition thereof as the General Assembly may direct; if any of such officers shall fail to comply with the requisitions of this section for the period of thirty days after the expiration of each and every year of his office, such officer shall be deemed to have vacated his office, and the Governor ⁶² shall declare the same vacant, and the vacancy therein shall he filled as in the ease of vacancy for any other cause, and such officer shall be subject to suit by the State for the amount that ought to be paid into the treasury; and no person holding any office created by or existing under this Constitution or laws of the State, or holding any appointment under any Court in this State, shall receive more than three thousand dollars a year as a compensation for the discharge of his official duties, except in cases specially provided in this Constitution.” It is to be noted that there is no express prohibition in the section upon the General Assembly from allowing a salary-in excess of $3,000. Such a prohibition must be inferred, if at all, from this language found in the second clause of the Article: “Ho person holding any office * * * shall receive more than $3,000.” It is not claimed that such a limitation upon the power of the General Assembly is to be found in any other provision of the organic law.

The whole argument upon this branch of the case must rest upon mere implication deduced from the language quoted. Sfich language is not that usuallyoemployed by the Constitution in imposing limitations upon the action of the law-making power. It has imposed snch restraints in a number of instances. In sections 32, 33, 34, 35, 36, 37, 38 and 40 of Article 3 of the Constitution restraints and limitations are imposed upon the Legislature, and the language in which these prohibitions is expressed makes it evident that it was directed against legislative action.

Here the prohibition is not against the action of the General Assembly at all, but against a person receiving more than $3,000 per annum from any office, or appointment created or existing in the mode and manner stated. The question that naturally suggests itself is: Against what class of persons is this prohibition directed, and from what source was it contemplated that the money they received might be derived ? One would naturally suppose that if it had been the intention of the framers of the Constitution to prohibit ⁶³ the General Assembly from creating an office with a salary attached exceeding $3,000 they would have done so in plain, direct and simple terms, and not obscured their intention by the use of such language as that to which we have referred. That language undoubtedly does impose a limitation upon the compensation which a certain class of officers or appointees may receive, but it seems to be reasonably clear from the language of Section 1, Article 15, when considered in the light of its historical genesis and the accepted canons of Constitutional construction, that it does not prohibit, and was never intended to prohibit, the General Assembly from creating salaried officers whose pay should exceed $3,000.

The section was intended to apply to that class of officers whose pay or compensation was derived from fees which they were entitled to receive by law for the performance of their official duties. Thus construed the second clause of Section 1, Article 15, expresses in appropriate terms the intention of its framers. Prior to the constitution of 1851 practically all officials in the State received their compensation from fees. The fee system resulted in wide-spread abuses, and occasioned general complaint throughout the State.

The evils which it introduced were attempted to be remedied by the Convention of 1851. It was provided by Article 10, Section 1 of that Constitution, that: “Every officer of this State, the Governor excepted, the entire amount of whose pay or compensation received for the discharge of his official duties shall exceed the yearly sum of three thousand dollars, shall keep a book, in which shall be entered every sum or sums of money received by him or on his account as a, payment or compensation for his performance of official duties, a copy of which entries in said book, verified by the oath of the officer by whom it is directed to be kept, shall be returned yearly to the treasurer of the State for his inspection and that of the general assembly of Maryland; and each of such officers, when the amount received by him for the year shall exceed the sum of three thousand dollars, shall yearly pay over to the ⁶⁴ treasurer the amount of such excess by him received, subject to such disposition thereof as the Legislature may deem just and equitable. And any such officer failing to comply with the said requisition shall be deemed to have vacated his office, and be subject to- suit by the State for the amount that ought to have been paid into the treasury.” Following the adoption of the 'Constitution of 1851 various acts of the General Assembly were passed regulating the fees to be charged by fee officers. They were codified in Article 38 of the Code of 1860, and relate to Clerks of Courts, Register of Wills, Commissioner of the Land Office, Constables, Coroners, Criers, Justices of the Peace, Sheriffs, etc. These officers were required under the section of the Constitution just quoted to make yearly returns to the Treasurer of the State.

It seems clear from the debates in the Convention upon the subject, contained in Vol. 2, that the first section of Article 10 of the Constitution was intended to apply to fee officers, and not to salaried officers. The intention of the framers of the Constitutional Convention of 1864 upon the subject is more clearly manifested by the debates in that convention. When the