Thomas v. Owens

4 Md. 189

• Court: Court of Appeals of Maryland
• Decided: June 15, 1853
• Status: Published

Opinions

Le Grand, C. J.,

delivered the opinion of this court.

This is an appeal from an order of the circuit court for Anne Arundel county, refusing to grant a writ of mandamus to be directed to the appellee, commanding him to pay the amount of a draft drawn upon him by the late Comptroller of the State treasury.

The petition of the applicant stated, that he was duly elected Comptroller of the treasury on the 5th day of November 1851,. and, that after having qualified, according to the constitution and laws of this State, he entered upon the discharge of the duties of the office, and continued therein until the 20th day of April 1853: that on the 15th day of April, he issued a warrant on the appellee, who was then, (and who is still,) the Treasurer of the State, for the sum of $1111.11, “in payment of so much salary due him as Comptroller of the treasury department, to be paid pursuant to the provisions of the constitution, and also pursuant to chapter — of 1853:” that he caused payment of said warrant to be demanded of the Treasurer, and that he refused to pay the same.

To this petition the appellee answered, objecting to the issue on several grounds, which are in substance as follows:

1st. That as Treasurer of the State of Maryland, he is not liable to the supervision or control of the circuit court in the manner prayed for in the petition.

2nd. That no sufficient appropriation has been made by law, specifying a sum applicable to the payment of the amount claimed by the petitioner.

3rd. That the petitioner did not qualify as Comptroller, according to the constitution and laws of this State, until the 24th day of February, in the year 1852, and remained in office until the 20th April 1853: that he has been paid out of the treasury of the State for his services as Comptroller the sum of $2595.83.

There were other objections interposed, but they are all resolvable into those which we have given.

The difference between the Treasurer and the late Comptroller in regard to the amount of the claim of the latter, consists in this; The Treasurer is of opinion he is only entitled to be paid from the 24th day of February, while the late Comptroller holds, that he is entitled to be paid from the day of his election, the 5th of November 1851.

We agree with neither of these opinions.

The 1st section of the 6th article of the constitution, provides for the establishment of a treasury department, “ consisting of a Comptroller, chosen by the qualified electors of the State, at each election of members of the House of Delegates, who shall receive an annual salary of two thousand, five hundred dollars; and of a Treasurer, to be appointed by the two houses of the legislature, at each session thereof, on joint ballot, who shall receive an annua] salary of two thousand, five hundred dollars.”

The 4th section of the 3rd article declares, that “the members of the House of Delegates shall be elected by the qualified voters of the counties and the city of Baltimore respectively, to serve for two years from the day of their election.’>'>

It has been contended on the part of the appellant, that these two sections ought to be considered together, and that they fix the term of service of the Comptroller at two years from the day of his election. This, in our judgment, does not necessarily follow from the language of either or both. The 1st section of the 6th article merely provides, that the Comptroller shall be “ chosen” at each election of members of the House of Delegates, and not, as in the case of the delegates, that he “shall serve for two years from the day of the election.”

There are other clauses in the constitution which have an important bearing on the true interpretation of the language of the constitution in regard to the Comptroller. The time is specified from which the Executive, the Judges of the Court of Appeals, District Attorneys, Lottery Commissioner, and other officers, are to hold. And the 4th section of the 1st article of the constitution provides, “that every person elected or appointed to any office of profit or trust under the constitution or laws made pursuant thereto, before he shall enter upon the duties of such office, shall take and subscribe” the oath or affirmation given in the section.

Now, we hold, that the late Comptroller could not be considered as in office until he qualified by taking the oath prescribed by the 4th section of the 1st article. After his election and commission by the Governor, he had the right to invest himself with the powers and entitle himself to the salary, by qualifying in the manner pointed out by the constitution; but, until he actually did qualify, he was no more Comptroller than any other citizen; his qualification being an indispensable prerequisite to his investiture with the authority and responsibilities of the office.

But, it is said, that although he would not be permitted to discharge the duties of the office until his qualification, yet, when he did qualify, such qualification by operation of law, would relate back to the day of his election, and entitle him to compensation from that time. There is a dictum in the case of Marbury vs. Madison, 1 Cranch., 151, which gives color to such a doctrine. It is there said, “a commission bears date, and the salary of the officer commences from his appointment, and not from the transmission or acceptance of his commission.” This opinion was not necessary to the decision of the case, and, as a proposition applicable to every instance of a commissioned officer, we cannot give it our assent. We must give to the constitution under which we live a common sense interpretation, and it is clear to our minds the purpose, in this regard, of its framers, was to make no gratuities, but to pay for services actually rendered, and that no one under it is authorised to claim a salary attached to an office, until he has accepted it and qualified himself by taking the prescribed oath. In fact the constitution expressly declares, that “if any person elected or appointed to office,' shall refuse or neglect to take the said oath or affirmation, he shall be considered as having refused to accept the said office.”'

The constitution provided, that the first election Under it should be holden on the 5th day of November 1851; and, as it made an election of Comptroller by the electors of the whole State necessary, it was obvious to every one, that their choice could not be made known at the seat of government on the day it took place, and, as a necessary consequence of this, that he could not be commissioned and qualified at that time. A candidate for public favor must be aware of .this, and be assumed to have agreed to accept the office which he solicits, subject to the effect of the delay incident to the ascertainment of the state of the poll and the issue of his commission; and, as a general thing, he suffers little or no diminution of salary from the circumstance, for the like delay attends the qualification of his successor, which, in most cases, prolongs his term until he is superseded by his successor’s qualification. It is urged, however, that the Comptroller elected in 1851, would not be authorised to hold on until his successor qualified; that his term of service would expire on the 5th day of November 1853. We have already said, we see nothing in the constitution which fixes his term of service at two years from the day of his election, and although it is not anywhere expressly said in the constitution, that he shall continue in his office until his successor has been duly elected, commissioned and qualified, yet, it is obvious to us, that looking to the spirit and policy of the constitution, as manifested in its provisions affecting the other officers of the government, in regard to whom it is provided, they shall continue in office until superseded by their qualified successors, that it was not the design of the framers of the constitution there should be an interregnum in the office of Comptroller, and thereby suspend for the time the whole operations of the Treasury department of the State. Such a state of things might be fraught with the most calamitous results; the dishonor, for instance, of the State’s faith and credit. And, in this view, we are strengthened by the 1st section of the 6th article, which provides, that when the Governor fills a vacancy in the office of Comp-trailer, his appointee shall “continue until another election by the people and the qualification of the successor.”

From this it follows, we are of opinion, that the appellant was not legally the Comptroller of the treasury, nor entitled to the salary affixed to that office until he qualified, according to the requirements of the constitution, which he did, on the 10th day of December 1851.

But it is said, that inasmuch as the 1st section of the 6th article of the constitution declares, that “the Comptroller and the Treasurer shall keep their offices at the seat of government, and shall take such oath and enter into such bonds, for the faithful discharge of their duties, as the legislature shall prescribe;” and as the legislature did not prescribe an additional oath to that set out in the constitution, nor fix the form and penalty of the bond until the passage of the act of 1852, ch. 12, there could be no qualification within the meaning of the constitution.

If this be true, then, in the event of a vacancy occurring by death, resignation or otherwise in the office of Treasurer before the passage of the act of 1852, it would have had the effect wholly to suspend the operations of the department; for, according to the argument, no Treasurer appointed by the governor, or by the legislature on joint ballot, could have rightfully entered on the discharge of the duties of the office until after the passage of that act. All he could have done, before he could have assumed to act as Treasurer, -would have been to take the oath and give the bond which the constitution and the then existing laws prescribed. If the 1st section of the 6th article of the constitution inhibited the late Comptroller from entering on his duties until the passage of the act of 1852, ch. 12; it equally interdicted a Treasurer, for it is, in terms, just as applicable to the Treasurer as it is to the Comptroller; and, therefore, if such a construction of the constitution were sanctioned, it would necessarily follow, that a Treasurer appointed prior to the act of 1852, from the time he assumed to act as such until he gave the bond and took the oath prescribed by that act, would have acted file-gaily and in defiance of the requirements of the constitution, and as a consequence, all his acts would have been void as being without warrant of law; in other words, the whole operations of the government would have been stopped.

The truth is, there is no force in the argument. In adopting the constitution, the people designed to secure to themselves all the safeguards which that instrument was intended to cast around their liberties and property; and prominent among these was the supervisory and controlling power of a Comptroller of the treasury department. The instrument provided for his election, commission and qualification, and when these took place he was constitutionally inducted into office.

The authority given in the 1st section of the 6th article to the legislature, to prescribe an oath and to require a bond other than those fixed by the constitution and existing laws, was placed there to guard against consequences which would have resulted from the operation of a well known and universally acknowledged principle of law.

Where a constitution defines the qualification of an officer, it is not within the power of the legislature to change or superadd to it, unless the power be expressly, or by necessary implication, given to it; and hence, the framers of the constitution, in the indulgence of an enlightened foresight, empowered the legislature to make such additional exactions of the Treasurer and Comptroller, in the way of bond or oath, as in its judgment, from time to time, the safety or exigencies of the State might require. Under this grant of power, it is competent to the legislature, at any time, to alter the oath or bond prescribed by the act of 1852.

Now, we understood the counsel for the Treasurer to concede, that the late Comptroller was properly in office so soon as he had complied with the requirements of the act. And yet, if their argument in regard to that act be valid, it follows, as an irresistible consequence, that both the Treasurer and Comptroller, although properly inducted into office, would have all their acts rendered illegal and void by a subsequent exercise of legislative power, for it must be borne in mind, that the exercise of the power is not confined to its first exertion by the legislature, but extends to all time.-

It is obvious the grant of power was made for the reason which we have given; and that all that was required of persons elected to the offices of Comptroller and Treasurer was to qualify according to existing laws, liable, however, to any demand the legislature might thereafter make on them; and on their failure to comply therewith, to be deemed as-having resigned their offices.

The next question for our consideration is, whether there' was- an appropriation, and if so, to what extent?

The Treasurer insists that he is alone responsible to the' legislature, and that the late Comptroller is only to be paid from the 24th of February 1852, the day on which he gave the bond and took the oath prescribed by the act of the session of 1852.

The legislature took a different view of the matter, for' they, by act of 1852, ch. 119, directed the payment of salary to the Comptroller from the first of January of that year, and at their last- session, in passing the general appropriation act,, did so, as- is to be plainly gathered from it, on the hypothesis-, that the $2500 which had been- appropriated by the act of the preceding session for the salary of the Comptroller had been exhausted, and, therefore, voted another $2500 for his salary from the 1st day of January 1853 to the 1st day of January 1854. It is clear, therefore, if a legislative appropriation be necessary to justify the Treasurer in paying the salary of the Comptroller, such appropriation was made from the 1st day of January 1852; and consequently on this head there is no force in the objection, except in so far as the period antecedent to the 1st of January 1852 is concerned. For the period subsequent to that time, the appropriation- ahd the direction to pay it are undeniably adequate and specific. .

The inquiry then is, is there an appropriation for the period intervening between the 10th of December 1851 — the time from which we think he is entitled to pay — and the 1st day of January 1852?

We are of opinion the constitution, proprio vigore, makes such appropriation.

Under our system of government its powers are wisely distributed to different departments; each and all are subordinate to the constitution, which creates and defines their limits; whatever it commands is the supreme and uncontrollable law of the land.

This is not denied directly, although it is inferentially, substantially and practically. It is said, that inasmuch as the 20lh section of the 3rd article of the constitution declares, “No money shall be drawn from the Treasury of the State, except in accordance with an appropriation made by law;” that an act of Assembly must precede the withdrawal, and inasmuch as none such has been passed covering the period antecedent to the 1st of January 1852, there is, therefore, no appropriation by law for that time. To this reasoning we cannot yield our consent.

In the construction of any instrument the whole paper ought to be considered, that the will of its framers may be truly and accurately ascertained; the objects contemplated and the purposes to be subserved should be constantly kept in view, and the language used interpreted in reference to the manifest intent.

Now what could have been the purpose of the clause in the constitution to which we have referred? It was obviously inserted to prevent the expenditure of the people’s treasure without their consent, either as expressed by themselves in the organic law, or by their representatives in constitutional acts of legislation. To use the language of Justice Story, (3 Vol. Com. on Con., sec., 1342,) its purpose “is to secure regularity, punctuality dead fidelity in the disbursements of the public money;” and, as said by Judge Tucker, in his commentaries, (1 Tucker’s Blac., Appendix, 362,) “All the expenses of government being paid by the people, it is the right of the people, not only not to be taxed wdthout their own consent, or that of their representatives freely chosen, but also to be actually consulted upon the disposal of the money.” Such a provision, says the same learned writer, “forms a salutary check, not only upon the extravagance and profusion in which the executive department might indulge itself, and its adherents and dependents; but also against any misappropriation which a rapacious, ambitious or otherwise unfaithful executive might be disposed to make, In those governments where the people are taxed by the executive, no such check can be interposed. The prince levies whatever sums he thinks proper; disposes of them as he thinks proper; and would deem it sedition against him and his government if any account were required of him, in what manner he had disposed of any part of them. Such is the difference between governments where there is responsibility and where there is none.”

These being the purposes and objects of the clause, the question is: — Have the people given their consent to the pay rtienf of the salary of the Comptroller ? That they have done so is palpably manifest. They have said he “shall receive an annual salary of two thousand, five hundred dollars.” They have not merely said he may claim such a sum, but, emphatically, that he “shall receive” it. It is impossible for human language to be less ambiguous or more positive. The people, in their organic law, — which is paramount to all other law — have not only given their consent, but they have imperatively issued their commands that ike particular officer ■ “shall receive” it. 'How is their will obeyed if it be within the power of the Treasurer, or any one else, to withhold it from caprice, unfaithfulness to duty, or from mistaken judgment? To allow of such a power in that officer would be to put him above the constitution, whose creature he is. It would be to invest him with authority to annul the sovereign will; in fact, to stop the wheels of government and reduce things into the wildest confusion. The constitution has said the officer “ shall receive” his salary, and this fiat of the supreme will is not to be nullified by the mere ipse dixit of. a mere ministerial officer, for such, and none other, is- the Treasurer.

In assigning the powers of government to three different departments, the constitution intended to secure to each its independency of action, and the more certainly and effectually to ensure this, it has ascertained and appropriated the salary they are severally to receive; and it has inhibited the legislature from diminishing it. Were it not for such a provision, the whole government would exist only by the permission of the legislature. It can only be carried on through the instrumentality of individuals, and their services can only be obtained by being paid for. The framers of the constitution, and the people who adopted it, aware of this, determined not to submit the durability of their work to the caprice, passion or prejudice, which possibly might, at times of great excitement, triumphantly rule the action of the legislature; and, therefore, wisely did the work themselves by engrafting in the organic law a provision for the protection of those who should be charged with its execution; in other words, they made the appropriation.

An opposite interpretation would countenance this paradox, that a co-ordinate branch of the government could stop its whole machinery, by refusing to pay the salaries of those upon whom is devolved the discharge of the duties of the other branches; and this too when the constitution expressly declares that these officers “shall receive” their salaries, and that they 11 shall not he diminished.” “It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.” 1 Cranch., 178.

Now, it is presumed, it would not be contended by any one, however hazardous, that if the legislature were to pass an act diminishing the salary of the governor, or of any other officer whose salary is fixed by the constitution, that such an exercise of power would be rightful and constitutional. If it be not competent, to the legislature to take away a part, by what process of reasoning can it be maintained that they can take away the whole. $ And yet this is the extent to which the argument addressed to us goes. It seems to'us to be but necessary to state the proposition, to cause its instantaneous rejection.

We hold, for the reasons we have assigned, the people have given their consent to the payment of the salaries fixed in the constitution, by declaring the amount “shall" be “received" by the particular officer; and that this is an appropriation by law — by the supreme law of the State,

The next inquiry for our determination is, whether the remedy invoked is properly applicable to a case like this?

We have already stated we do not think the petitioner is entitled to his salary from the day of his election; but as the question in regard to remedy is one of great practical importance, we deem it proper to express our opinion in regard to it. And this necessarily involves an inquiry into the relative powers of the Comptroller and Treasurer, as defined by the constitution.

The 3rd section of article 6th, defines the principal duties of the Treasurer as follows: he “shall receive and keep the moneys of the State, and disburse the same upon warrants drawn by the Comptroller, and not otherwise; he shall take receipts for all moneys paid by him, and all receipts for money received by him shall be endorsed upon warrants signed by the Comptroller, without which, warrant, so signed, no acknowledgment of money received into the Treasury shall be valid.”

The 2nd section of the same article provides, “the Comptroller shall have the general superintendence of the fiscal affairs of the State,” and “superintend and enforce the collection of all taxes and revenue; adjust, settle and preserve all public accounts,” &c.

From these two sections it appears: — 1st, that it is the duty of the Treasurer to disburse the public moneys on the warrant of the Comptroller, and not otherwise; and 2nd, that the duty of adjusting and settling all public accounts is imposed upon the Comptroller.

Looking to these provisions of the constitution, it appears to us, that the power of adjusting and settling public accounts is exclusively conferred on the Comptroller, and, in this particular, it is the duty of the Treasurer to respect such adjustment and settlement, and on warrant of the Comptroller to pay the amount; a duty subject only to these reservations: 1st, that the warrant must be in proper form; 2nd, that there must be an appropriation by law; and 3rd, that there must be funds in the treasury to meet the demand. He has nothing to do with the elements of accounts. If there be an appropriation by law, it is the duty of the Comptroller to ascertain the amount. The Treasurer is not required to preserve accounts, that duty is imposed on the Comptroller.

The Comptroller is chosen immediately by the people; the Treasurer by their representatives; and the former have deemed it advisable to entrust the officer of their own choice with duties formerly performed by the executive and Treasurer. With the wisdom or imprudence of this disposition we have no concern, except as citizens of the State. The .sovereign will has thought proper to endow a particular officer with certain delicate and highly important functions, confiding in the security which his official bond, private and public character, and the responsibilities of his oath, afford. As human government cannot be carried on without reposing confidence somewhere, all human ingenuity can suggest as guards against faithlessness, ignorance, or corruption in office, are those which have been thrown round the Comptroller. His case constitutes no exception to the rules applicable to other officers to whom is confided public trusts: in regard to him, the same risks must be incurred as are encountered in regard to the Treasurer and other officers. Confidence, arising out of the history of past life, is, after all, what is most generally viewed as furnishing the surest guaranty of future fidelity. But, be this as it may, the people have conferred the power, and so long as it be rightfully exercised, it is controlling.

We have said there is an appropriation, and that the petitioner is entitled to be paid from the 10th day of December 1852, the day on which he qualified; and in such a case, if payment be refused, mandamus is the proper remedy.

When there is an appropriation, and a proper warrant drawn by the Comptroller and presented to the Treasurer, his duty is purely ministerial: all he has to do in such a case, Í3 to count out the money; an"*act ministerial, and nothing else. If he refuse to perform it, the law will compel him, and the party injured by the delay consequent upon his delinquency, may sue his official bond, or bring a special action on the case. It is-the pride and boast of our political institutions, that no man is above or irresponsible to the law; and, to use the language of Chief Justice Marshall, (1 Cranch., 177,) ‘‘It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must decide that case conformably to. the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules govern. This is the very essence of judicial power."

In the case of Amos Kendall, Postmaster General of the United States, vs. Stokes, 14 Peters, 472, it was held by the Supreme Court of the United States, that it was competent to compel the postmaster general, by mandamus, to do a ministerial act — -in that case, the giving, on the books of the department, a credit authorised by an act of Congress. And also held, that the mandamus could not be considered as seeking to direct or control the postmaster general in the discharge of his official duty, partaking, in any respect, of an executive character; but to enforce the performance of a mere ministerial act, which neither he nor the president had any authority to deny or control. That case, in principle, is the same as would be the one in which the Treasurer of this State should refuse to comply with the requirements of the law. See also the case of The King vs. The Lords Commissioners of the Treasury, 31 Eng. Com. Law Rep., 72.

Waiving all objection which might be urged to the particular form of the proceedings, we are of opinion, that the Treasurer properly refused to pay this warrant, because it did not show on its face the particular law under which it was drawn. It professes to have been issued under the constitution and an act of Assembly, without designating what particular act. For these reasons, and because the Comptroller in his petition claimed more than he was entitled to, we affirm the order of the circuit court refusing the mandamus.

Order affirmed.

Judge Mason having heard only a part of the arguments in this case, (those of Messrs. Pratt and Spencer,) consequently did not participate in the decision. He requests the Reporter to say, that having examined the questions involved in the controversy, he fully concurs with the opinion of the majority of the court, as delivered by the Chief Justice.