Mayor of Baltimore v. O'Conor

Walsh, J., delivered the opinion of the Court. This suit involvesi the constitutionality of chapter 5Y 6 of the Acts of 1924 of 'the General Assembly of Maryland, which! alters in part the previously existing law regarding thle compensation andi expenses of the clerks! of courts, sheriff, register of wills, and State’s attorney of Baltimore City. The validity of the law a® applied to the office of the llaist named official is the only question presented by the record' in this case, hut a® the 'determination of this question *642 will 'aliso decide .its validity .as to the other -offices mentioned, we will pass upon the constitutionality -o-f chapter 576 as -a Whole. The -office o-f State’s attorney for Baltimore City has been very largely maintained from .appearance feesi paid to it by the City -of Baltimore. There is noi statutory -or constitutional provision requiring thei city to pay these feesi, except when iam -accused person i-si -acquitted, but it has been the immemorial cu-stom -of the, city to pay thiem iu every case of conviction in which the. defendant does not pay -them, and in the case of the Mayor and City Council of Baltimore v. Pattison, 136 Md. 64, where the question of fees paid by the city in criminal oases to -the, clerk of the Criminal Court of' Baltimore- was involved, this Court held that the custom h.'aid “been soi long 'and ,sio universally recognized and acted upon ais, to- b acomia .a, part -of the common law of the State.” It, is conceded in the .briefsi in the present case that the decision abo-vei cited .also applies -to the .appearance f ees paid to- the State’s attorney by the city in- oas-eis of conviction, and that, prior to -the, enactment of. chapter 576, the city wasi required, by the common law -of the -State-, to pay those fees. Under thei provisions of .section, 1 of article 15 of the Constitution -of Maryland, .the clerks: -of thei courts, register of wills,, ¡sheriff, and the State’s attorney of Baltimore City are required -annually' to- remit to- the State treasurer whatever surplus o-f their receipts remains after the payment of the salaries and expenses of their respective -offices. For a ease hloilding -that, the sheriff -of Baltimore- -City is subject to the provisions -of this section' -o-f the Constitution, see State v. Green, 120 Md. 681, 688. Chapter 576 of the- Acts of 1924, which went into'effect Tune 1st, 1924, undertook, among other thing's-, to- relieve the City of 'Baltimore of its common law liability to pay tbe fees above- mentioned, and when -the 'State’s attorney presented ■a bill for the fees earned by his -office during Tune, 1924, amounting to $2,440, payment was refused .and this suit *643 followed. The declaration originally mnltiainad the common counts >and ¡a special count, hut, hy agreement,' -tihe common counts were withdrawn, a demurrer inteaposed to the special count, and it was stipulated and agreed by counsel “that all technical errors and irregularities in the pleadings * * * are hereby waived to the 'end that the only question intended to he liaised by these proceedings, viz: The constitutionality wZj no*n of chapter 5l6> of the Acts of 1924, may he submitted to the court for determination.” It was conceded that if chapter 516 was Valid1, the ¡special count was had .and the suit could not he maintained, hut the learned court below held Aapter 5P6 invalid, on the ground that it changed the office of State’s attorney for Baltimore City from a fee office ¡to a, salaried office in violation of ¡section 9 of article 5 of the Constitution. The demurrer to -the special count Was accordingly overruled, and, the defendant, the Mayor ‘and City Council of Baltimore, declining to plead further, judgment was entered against 'it, .and it took this appeal. In the argument .before this Court, four aonstitutional 'objections were urged against the act in question, hut in the view which we take of the matter it will only he necessary to consider two of these, the alleged violation of the provisions of section 52 of article 3 of the Constitution, commonly known as -the Budget Amendment, and the one sustained hy th© court below. Omitting the title and enacting ¡clause, chapiter 516 reads as fallows: “351-A. The Treasurer of the State is hereby directed to credit to one account all sums of money which may be received by him in pursuance of section 1 of article 15 of the Constitution, from all of the officers connected with the administration of justice in Baltimore City, viz: clerks of courts, sheriff, State’s attorney and register of wills; and is hereby directed to pay out of the money in his hands, from time to time, to the credit of said account, whatever sums may be necessary to meet any deficiency or deficiencies between the amount of fees collected by any one *644 or more of said officers and the amount of the salaries and other expenses authorized by the law of such officer or officers. The amounts expended for salaries and other expenses shall be subject to the approval of the Comptroller. The Comptroller of the State shall, from time to time, draw warrauts upon the State Treasurer, payable out of the monies in the hands of said Treasurer to the credit of said account, for the payment of any such deficiency or deficiencies to any one or more of said officers, not at any time to exceed the amount to the credit of said account. In the event that the amount due to the credit of said account should not be sufficient at the end of any year to meet the deficiency or deficiencies of any one or more of said officers, the additional sum necessary to meet such deficiency or deficiencies shall he paid by the Mayor and City Council of Baltimore to such officer or officers, and, except as provided in this section, the Mayor and City Council of Baltimore shall not be liable for any of the salaries or expenses of any of said officers, and shall not he liable for the fees or costs of any of said officers, except in cases where said Mayor and City Council of Baltimore is a party litigant, and is chargeable therefor as such party litigant. In the event that the amount to the credit of said, account shall he more than sufficient to meet said deficiency or deficiencies, then the excess to the credit of said account shall be a part of the general revenue of the State available to meet the appropriations in the State budget.” Prior to the adoption of -the Budget Amendment by the people of the State in 1916, there was no ’Orderly plan or system wihidhi tibe 'General Assembly Was required to follow in 'disbursing the State’s revenues, 'and a® a result appropriations! were more or less unciorrelaited and deficits in tbe State treasury were not un/usuail. The purpose of the Budget Amendment was to remedy this situation by providing an intelligent and definite method of estimating and 'appropriating the income of the State. *645 It provides that “the General Assembly shall not appropriate any money out of the treasury” .except by “either a budget bill, or a supplementary appropriation bill, .a® hereinafter mentioned.” It .also provides that, -within a designated time after the convening; of the General Assembly, the Governor shall -submit to that body two budgets, one for each of the ensuing fiscal years., containing a, complete plan of estimated revenues, and proposed expenditures for the particular fiscal year to which it relates, and .showing the estimated surplus .or deficit -of revenues at the end of such year*. The -Governor -also submits a bill for .all the proposed appropriations of the budgets clearly itemized and classified, which is known as the budget bill. After this bill has been introduced, the Governor may .amend or supplement it, and the General Assembly, subject to certain exceptions, may “strike out .or’ reduce the items therein,” but, save as regards the General Assembly -and the judiciary, it cannot add to or increase the items in the bill. "When passed by the General Assembly, the budget bill becomes a law without further action by the Governor. As defined in the Budget Amendment, a “supplementary appropriation hill” is “a sep¡arat-e bill limited to. some single Work, object or purpose therein stated,” which provides “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,” and -it must be passed in each house on a roll call vote by a majority of the whole number of the members elected, .and must be presented -to the Governor for bis action as provided in section 11 of .article 2 of the 'Constitution. It was suggested in the argument before this Oourt thait the sole purpose of .the Budget Amendment was. to. do away with “continuing appropriations,” Which, under the. old system, contributed .so largely to the confusion 'and uncertainty which attended the disbursement of ¡the State’s revenues. But this contention is obviously tmsonnd. A few words would bave sufficed toi abolish Isuch .appropriations; the amendment goes much further. It establishes .an intelligent *646 and. accurate method of gauging the Sítate’© financial condition rand of spending it© money. Under it the Governor is required to present to' each General Assembly a balance sheet of the State’s finances, together with an estimate of the ‘annual income of the State and also his own views as to ■how the -available portion of that income should he ©pent in maintaining the State’s governmental agencies, 'and in carrying on the various activities in which the State i-s engaged. And tire General Assembly, though 'authorized to' reduce or strike out many of the itémis in the bill, is. prohibited, except in the two instances heretofore mentioned, from adding, to or increasing the various expenditures suggested by the Governor, unless at the same time it provide© the revenue needed to meet its new or increased appropriations; and' observes the other constitutional requirements relating to “supplementary appropriation bibb.” The amendment is the expression of the direct will of the people; it is .a clear instruction from them to apply to the financial ‘affairs of the State some of the principles of efficiency which private business has long been ■accustomed to practise, and it i® the duty of the courts to give effect to this expression, and to. safeguard it whenever’ necessary. Chapter 576 of the Acts of 1924 specifically provides that money in the State treasury 'shall be paid out to meet any deficiencies between income 'and expenses which may arise in .any of the offices mentioned in the act. It is true that the act cloie© provide for placing the excess fees received from any of .the-se offices in one account in the treasury, and limits the appropriation for déficits toi the balance in that account, but this cannot be held to exempt the appropriation from the pro vision© of the Budget Amendment. Once these excess fees are paid info the treasury, ais contemplated by the .act itself, they must remain in the treasury until withdrawn therefrom in accordance with the provisions of the amendment. If the General Assembly can, by the simple expedient of directing that certain Sítate revenue he placed in special accounts in the treasury, .secure the right to. .appropriate it *647 without reference to .the requirements of the Budget Amendment, then the General Assembly has tire power to nTiBify the amendment. Suoh a proposal carries its own refutation; but aside from this consideration, the plain and unambiguous language of the amendment itself clearly prohibits the General Assembly from “appropriating any money out of the treasury except in ■accordance with” tibie provisions of the amendment. The -appellant relies on certain language used by Judge Trner in deciding the case of Baughman v. Riggs, tried before the Circuit Gour-t for Montgomery Oounty, and reported in the Daily Record of January 12th, 1923. That case involved the oonstitutiouaJity of chapters 259 and 263 of the Acts of 392-2, which sought to create a special police force for Montgomery Oounity, -and to provide for its maintenance from funds derived from convictions in that county under the motor vehicle law. The only question before the Court w-a's the validity of the titles to the acts, and in the course of his opinion, holding tih-at the titles were in part defective, Judge IT-mer said: “The Legislature undoubtedly bad power to pass just, such acts as these we are considering. It could have, provided that funds derived from convictions under the motor vehicle law in Montgomery Oounty should thereafter be paid to the county commissioners instead -of to the motor vehicle commissioner.” We cannot -agree with the contention of the able counsel for the appellant that this statement is any (authority for chapiter 576. The acts before Judge Umar did not appropriate any money from the State treasury; ,tihey simply sought to divert to certain local uses money which would ordinarily have gone to the commi'sisioner of motor vehicles, -and part of which would no -doubt have -eventually reached the treasury. This is quite different from appropriating money after it has been paid into the State treasury. Bnder the provisions of section 1 of article 15 of the Constitution, the excess fee® from the offices mentioned in *648 chapter 576 must be paid into the Sítate treasury, and, in obedience to this constitutional provision, the act itself .assumes that these excess fees mil be paid to the State treas¡urer. It thus appears that this particular part of the .State’s revenue could not be diverted before it reached the State treasury, ,and hence the above quotation from an opinion given in a case involving acts -which sought to. divert money which the Constitution 'did not require should be paid into the State treasury doe® not. and could not have any application to. the present case. It is .also, contended by the appellant that chapter 576 is authorized by that part of section 1 of 'article 15 which provides that the excess fees paid to. the treasury under that section shall be “subject toi .such disposition thereof .as the General Assembly may direct,” and it is urged that the ease of Mayor and City Council of Baltimore v. Pattison, supra, deckled this.. The question in that case, as we have seen above, was the liability n&l non of the City of Baltimore for certain ■clerk’® fees., and in commenting’ on -the argument that the payment of the excess of these fees to. the State treasurer for general use constituted an inequality in taxation, the Court said: “This contention might be made the basis of .an appeal to. the Legislature toi correct ¡any inequalities of the nature complained of which may be produced by the operation of the present .system. Thei General Assembly has power to accomplish the -purpose of such -an appeal under the authority reserved to it by the Ooustitutiou (section 1 of ¡article 15), to direct the .disposition of the excess funds received by the State treasurer from the clerks.” The General Assembly undoubtedly has this power, but since the passage of the Budget Amendment it must exercise its. power in the manner prescribed by that amendment. The amendment was not involved in any way in the Pattison case, and it is not mentioned in the ¡Court’s opinion, but even if it bad been, there is nothing in the language used to. intimate that this -Court meant to .-hold ¡that the General Assembly could appropriate money out of .the State treasury without complying with the plain provisions o-f the Budget Amendment. *649 Nor is it¡her¿ any conflict between section 1 of article 15, and the amendment. The former 'authorizes the General Assembly to 'dispose of the) excess fees, and the 'latter pro* vides the method by which this must be clone. The provision that thei General Assembly could dispose of these excess fees did not mean that they could be disposed of without regard to the other constitutional requirements regulating the passage 'and enactment of appropriation bills, and upon the adoption of the Budget Amendment the appropriation of these fees became .subject to' its provisions just as, did the appropriation of all other money in the State treasury. Erom wha,t we have ©aid it is obvious that, since the money which chapter 576 seeks Ito appropriate is in the State treasury, it cannot be gotten out of the treasury except in the manner provided in the Budget Amendment, and under that 'amendment the appropriations provided for in chapter 576 would be invalid unless made by the budget bill itself, or by a supplementary appropriation bill. It is not contended that chapter 576 is a .supplementary appropriation bill, or that the money it attempts to appropriate is. ©pecitioally .appropriated by the budget bill, but it iis urged that the appropriation made by the act in question is authorized by the budget bill passed by the -last Legislature (chapter 176 of the Acts of 1924),section 9 of which provides: “That all moneys received -by any department, board, commission, officer or institution of -the State', from sources other than appropriations made in the budget, and dedicated by any Act of Gongress or laws] of this State to some specific purpose or purposes, .and which have been accounted for to the comptroller and paid into the treasury, may be disbursed by the treasurer, upon warrant of the comptroller, to< such department, board, commission, officer or institution, for the purpose or purposes for which the same .are .dedicated.” It is contended' that chapter 576 fulfills, ,all the requirement© of this section, .and that hence, the appropriations provided for by this act are appropriations authorized in the budget bill, but to this we cannot assent. We are advised *650 by tbe Attorney General in ibis brief in this ease th-alt the purpose of the above section was to malee possible a centralized bookkeeping system showing) -all monies .spent by the State. It seams that fundís, received as federal aid, county matching appropri-aitionsi, 'and from certain other source®, which were dedicated -to. special purpose® -and not considered in making up itkei budget or the budget bill, were newer paid into the .State treasury because of the fear of the various department® receiving these funds 'that, under the Budget Amendment, they could not he gotten out of the treasury. As a result the comptroller's office, had no record of these fund®, and! hi-s. books, failed to show all the money -spent each year by the various .State- departments, and section 9- was passed; to remedly this difficulty. Without expressing any .opinion as to. the validity of .section 9 for any purpose, it is. dearly invalid .as .an authorization of the appropriations, isought to be made by -chapter 576. These appropriations are- contingent, and uncertain -as to- amount, and, as, they -are made from money which the. Constitution requires to be piaid into the treasury, Itihiey might, under some cireu.msitan.ces, be held to violate the spirit if not the letter of the Budget Amendment, because they create uncertainty as to. the money available for general .appropriation®. They are in a .sense con turning .appropriations', because there is nothing in chapter 576 which limits its effectiveness to. any particular period of time. Hence, if the -act was held good now because of section 9 of the current budget bill, and the next budget bill did not contain a, similar* section, we would have the -absurd .situation of a law. becoming unconstitutional because, of the failure of thiei Legislature to. pass another law making it valid. And finally, if chapter 576 were held valid because'of section 9, it would mean that the Governor cou-ld delegate, to the General Assembly the power to fix the items .and amount® of the budget Hill, and the Budget-Amendment would be destroyed. We accordingly find that tire act in question is. not a, budget bill, nor are the appropriations contained in it authorized by the present budget bill. *651 Since chapter 576 is neither a budget bill nor a suppfe- ■ mentary, appropriation bill, it fallow®, from what we have heretofore said, that in soi far a® it attempts to appropriate money from the State treasury for -the payment of deficit® in the offices of the State’® ia,ttorney, register of wills, clerks of courts, 'aind sheriff of Baltimore City, it contravenes the proivisiouis of the Budgtet Amendment .and -is unconstitutional .and void. - The lower court held chapter 576 invalid on the ground that it changed the office of State’s attorney for Baltimore ■City from a fee office to a salaried office in violation of section. 9 of article 51 of -the Constitution. Thd's' section concludes .as follows: “That the State’® attorney for Baltimore City .shall releerte an annual salary of $5,400, and shall appoint one deputy at .an annual salary not exceeding $4,000; and .such other assistants at such annual salaries not exceeding $2,500 each, as the Supreme Bench of Baltimore City may authorize and! approve; all of isaid salaries, to be paid out of the fees of the said State’® attorney’® office, as; has heretofore been (practiced.” Chapiter 576 provides that the salarie® and expenses .of the office of the State’s attorney for Baltimore City shall be paid from the fees of that office, but it .also provide® that, in case the fees of that office prove insufficient to pay the salaries and expenses; the deficit shall be paid from the excess fees derived from -the other office® mentioned in the act. The Constitution requires “all of said salaries to- he paid out of the fees of the said State's attorney’s office, as has heretofore been practicad.” The conflict between these provisions is obvious and unescalpiable, 'at least in so far a® the salaries of the .State’® atitoraey’s1 -office are concerned. "Whether or not a, valid distinction could be' drawn between “saLaries” and “expenses” it is unnecessary for us to decide, because no drt tinctiou is made between "(them in chapter 576, but so far as the “salaries” of the States’ attorney’® office are concerned, the learned court below was clearly right in holding that *652 fey must be paid from the fees of that office, and. that the ■act in question was invalid in 00 far ¡ais it 'attempted. to change this constitutional requirement by providing 'that any deficit in that office ¡should be paid from excess fees derived from other’ office®. Eor the ’siamei reasons the act is void in regard to the payment of deficits in the offices of the clerks of courts alud register of -will®, section 45 of article 3 of the Constitution providing that the “compensation of clerks, • registers, assistants and office expense® ¡shall always be paid out of the fee® or receipts- of the offices respectively.” And as regard® these offices-, -the language of the Cbnstitution itself preclude® ’ any distinction being drawn between “salarie®” or “compensation,” arad “expenses,” because both items are specifically mentioned. Counsel for the appellant insist® that the history of -legislation in this ’State is at variance with thiisi construction of the constitutional provisions just cited, and refers. us¡ to¡ chapter 54 of the Acts, of 1868 (section 14 of article 17 of the Oodei of 1924) to support his contention. That act pools all of 'the excess fees received from the offices of the clerks of courts of Baltimore C&ty, and malees this fund liable for any deficiencias in any of the clerk’s office®. The constitutionality of this act has, so- far as we are advised), never been challenged, -and we are not to be understood als 'expressing, .any opinion on it in this case, but whether valid or not, it is clearly distinguishable from the act now before us. The former” act pools only the excess fees from the clerks’ office® ini Baltimore Oity for the benefit of the clerks, wherea,si the act we are considering undertakes to place, in one fund, the excess fee® from the -offices of the sheriff, clerks, register of will® and State’® attorney, .and to render” ¡that fund liable for •deficit® in -any of tine offices mentioned. In view of these 'differences there would seem to be little force in the argument that chapter" 54 of the Acts of 1868 furnishes any legislative precedent for chapter 576 of the Acts of 1924, and even if it did, such precedent, though entitled to consideration, w’onld not be binding* upon us in determining ¡the validity of the later act. *653 Since our attention has not been called to .any specific provisión of the Constitution requiring the ¡sheriff of B'altimore Oilty to be paid only from the fees of bis office, 'and1 we know of no such requirement, w*e express no opinion ais to' the validity of chapter 5 7 6 in so far 'as iit makes the 'sheriff’s office a salaried 'One, though of course the attempt to appropriate part of the sheriff’si salary and 'expenses from the Sítate treasury is, as we said above, void1 because it violates the provisions of the Budget Amendment. The remaining point to' be Considered is Whether or not the defective portions of chapter 576 will require us .to hold the entire .act invalid. “A stattute may be good in part, while other parts are invalid. If a portion be unconstitittional, -the Court is not authorized, for that reason, to. dudare the whole void.” State v. Davis, 7 Md. 151. In Commonwealth v. Hitchings, 5 Gray, 482, where the same rule of construction was adopted, the court said: “The constitutional and unconstitutional provisions may even be Contained in the same sections, and yet be perfectly distinct and separable, so that the first may staaid, though .the last fall. The point is, not whether they are contained in the same section, for the dis¡tribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance Both of these statements were quoted with approval by this Cfouxt in the case of Painter v. Mattfeldt, 119 Md. 466, and the principles .announced are undoubtedly the law of tbis State. See also Hagerstown v. Dechert, 32 Md. 369. Tested by these rules, it seems, obvious that no part of chapter 576 is valid. We have held that the provisions of the law relating, to the payment of .any deficits in the offices’ mentioned from money 'in 'the State treasury, were void, and hence all of these offices, with the possible exception of the sheriff’s office, must depend upon fees for their salaries) and expenses. The other salient part of the act is .the provision relieving Baltimore City from, its liability to pay certain of these fee®, and to hold this good, andi the portion taking care of any deficit thus occasioned bad, would certainly give *654 rise to an anomal'ousi -situation. The two- provisions are intertwined 'and; dependent on each other, and both are so intimately related -to the main purpose of the act as to be, in our opinion, “essentially and inseparably connected in substance.” Nor would it be proper* to 'assume tibiat the Legislature intended to- deprive three of tbeise offices of certain revenue which they have always .enjoyed, although the provision it made in the isante act to -supply other revenue in place of it was- held void. It follows that the. -act must be held unconstitutional in -so far as. it relates to the offices of the State’s .attorney, register of wills, and olerías of courts of Baltimore City, and, in our opinion, to hold valid -that part of the act which relieves Baltimore City of its liability to 'pay -certain fees to the sheriff, though -all the rest, i-s void, would be -extending beyond reason the principle of law "which permits, part of an act toi be .declared valid and part of it invalid. We are accordingly -compelled to. hold that chapter 576- of ithe Acts of 1924 -is wholly unconstitutional and void. We are riot xmmindfu-1 -of the rule that every ¡presumption favors the validity of an act of -the Legislature, and it is 'with the utmost reluctance that we -declare void the action of a co-ordinate branch -of the gpveirnment, but where .a statute plainly contravenes -any -of the provisions of the Constitution we are -charged with the duty of -declaring it void, and this 'obligation is rendered! none the less imperative because the proposed law may -embody wise -and beneficient legislation. It ¡should be noted thalt by -a -constitutional amendment, adopted in November, 1924, certain changes were made in the provisions regulating the office of the State’s -attorney for Baltimore City, but for the purposes of the present case it was, of course, necessary to -deal with, the Constitution as it existed prior to the adoption of that amendment. The judgment -of the -lower court will be affirmed. 'Judgment affirmed, the appellant to pay the costs.