Birmingham v. Board of Public Works

• Decision Date: 07 March 1968
• Docket Number: No. 388,388
• Citation: 239 A.2d 923,249 Md. 443
• Parties: Charles H. BIRMINGHAM et ux. v. BOARD OF PUBLIC WORKS of Maryland et al. . Per Curiam Order
• Court: Maryland Court of Appeals

Page 443

249 Md. 443

239 A.2d 923

Charles H. BIRMINGHAM et ux. v. BOARD OF PUBLIC WORKS of Maryland et al.

No. 388.

Court of Appeals of Maryland.

Per Curiam Order March 7, 1968.

Opinion April 3, 1968.

Everett L. Buckmaster, Baltimore (George W. White, Jr. and Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellants.

Frank A. DeCosta, Jr., Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellees.

Francis X. Gallagher and Joseph G. Finnerty, Jr., Baltimore, on the brief, amici curiae brief filed by Mercy Villa, Inc.

Mylander & Atwater, Charles C. W. Atwater and David A. Carney, Baltimore, on the brief, amici curiae brief filed by Christ Lutheran Church.

Before HAMMOND, C. J., and HORNEY, BARNES, FINAN and SINGLEY, JJ.

ORDER

PER CURIAM.

The decree of the Circuit Court of Baltimore City of January 4, 1968 appealed from is reversed, with costs, this Court being of the opionion that Chapter 652 of the Laws of Maryland of 1966 is void because it does not provide for the collection of an annual tax sufficient to pay the interest on the debt created and to discharge the principal thereof as required by Article III, Section 34 of the Constitution of Maryland.

Further reasons for the conclusion of the Court will be set forth in an opinion to be filed herein later. The mandate will issue forthwith.

OPINION

SINGLEY, Judge.

By Chapter 652 of the Laws of Maryland 1966 (the Nursing Home Loan Act of 1966, hereafter sometimes referred to as 'the Act'), the General Assembly of Maryland authorized the State to incur an indebtedness of $3,500,000 to supplement federal grants made or to be made to the Maryland State Department of Health for the construction and equipment of public and non-profit nursing homes.

On 25 September 1967 the appellants, in their capacity as taxpayers, filed a bill of complaint in the Circuit Court of Baltimore City against the Board of Public Works and others, challenging the validity of the Act, and asking that the appellees be enjoined from taking any action thereunder. In the court below, the appellants contended that the Act is unconstitutional and void because: (1) the Act fails to provide for the collection of an annual tax sufficient to pay the interest on the debt and to discharge the principal of the debt within 15 years; (2) the Act results in the establishment of religion or prohibits the free exercise thereof; (3) the Act discriminates in favor of religious organizations to the detriment of non-profit organizations; and (4) the title of the Act is defective.

The lower court, after a careful consideration of all of these contentions, dismissed the bill of complaint. From the decree dismissing the bill, this appeal was taken. The appellants, in their brief and in argument, make the same points which were argued below and additionally contend that the chancellor was in error when he admitted in evidence the regulations promulgated under the Act by the State Department of Health and certain related correspondence.

It is our view that the Act is invalid for the reason that it failed to provide for the collection of an annual tax sufficient to pay the principal of and interest on the debt. Accordingly, we need not reach, nor do we pass upon, the other contentions raised by the appellants.

The legislative history of the Act is not only interesting, but necessary to an understanding of the result which we reach. Chapter 643 of the Laws of Maryland 1961, the Nursing Home Loan Act of 1961, authorized the borrowing of $1,500,000 to supplement federal grants made to the State Department of Health for the construction and equipping of nursing homes. Section 7 of the 1961 Act reads as follows:

'* * *, That until all of the interest on and principals of any Certificates issued under this Act have been paid in full, there is hereby levied and imposed an annual State tax on each One Hundred Dollars ($100.00) of assessable property at the rate to be determined in the following manner: On or before December 1, 1961, and on or before December 1st of each calendar year thereafter, the Board of Public Works shall certify to the governing bodies of each of the Counties and of Baltimore City the rate of State tax on each One Hundred Dollars ($100.00) of assessable property necessary to produce revenue to meet all interest and principal which will be payable to the close of the next ensuing calendar year on all Certificates theretofore issued or theretofore authorized by resolution of the Board of Public Works to be issued, and the governing bodies of each of the Counties and Baltimore City shall forthwith levy and collect such a tax at such a rate.' (Italics added.)

When the 1961 loan funds were exhausted, a new bill was prepared for introduction in the 1966 session of the General Assembly to authorize a new state loan of $3,500,000 to continue the program. The typed version of the 1966 Act was prepared and given to the Speaker of the House of Delegates for introduction. The text of the 1966 Act was substantially similar to that of the 1961 Act, and § 7 was identical, except that the italicized words 'necessary to produce revenue to meet all interest and principal which will' were omitted, the dates were changed to May 1, 1967, and the word 'fiscal' was substituted for the word 'calendar.'

Art. III, § 34 of the Maryland Constitution provides, in part:

'No debt shall be hereafter contracted by the General Assembly 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 such debt as it falls due, and also to discharge the principal thereof within fifteen years from the time of contracting the same; * * *'.

The appellees take the position that the omission was an inadvertent one; that there is no uncertainty as to the nature of the omission; and that the interpolation of the omitted words by judicial construction would neither alter nor change any substantive rights. They also point out that it has been customary, at least since 1953, for the General Assembly not to levy a specific tax for each bond issue, but instead to authorize the Board of Public Works to certify to the political subdivisions what tax is needed each year to support the entire State debt and to require the subdivisions to collect the tax. The language of § 7, they say, is (except for the 12 words omitted) that customarily used by the Legislature and approved by this Court in McKeldin v. Steedman, 203 Md. 89, 98 A.2d 561 (1953), and there can be no doubt as to the exact words to be interpolated by us.

We do not find this persuasive. While we have held that where the true legislative intent can be ascertained, it will prevail over precise grammatical construction or literal intent, State v. Petrushansky, 183 Md. 67, 36 A.2d 533 (1944); Clark v. Tawes, 187 Md. 195, 49 A.2d 463 (1946), in the case before us, however, the appellees ask us to go much further. As Mr. Justice Brandeis, speaking for the Supreme Court, said in Iselin v. United States, 270 U.S. 245, 46 S.Ct. 248, 70 L.Ed. 566 (1926):

'What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function. * * *.' Id. at 251, 46 S.Ct. at 250.

This Court has consistently taken the same view. Redwood v. Lane, 194 Md. 91, 69 A.2d 907 (1949) was an attack on the validity of the Act authorizing the General Public School Construction Act of 1949 which had been enacted without a recording of the yea and nay votes as required by Constitution, Art. III, § 28. Judge Collins, speaking for the Court, said, 194 Md. at 102-103, 69 A.2d at 912:

'Article 8 of the Declaration of Rights of this State specifically provides: 'That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.' This language is clear and explicit. Niles on Constitutional Law, page 19. Beasley v. Ridout, 94 Md. 641, 52 A. 61. Judge Earle in the case of Crane v. Meginnis, 1 G. & J., page 463, aptly says at page 472, 19 Am.Dec. 237: 'The Constitution of this State, composed of the Declaration of Rights and form of government, is the...