D.E. Foote & Co. v. Harrington

• Decision Date: 22 June 1916
• Docket Number: 27.
• Citation: 98 A. 289,129 Md. 123
• Parties: D. E. FOOTE & CO. et al. v. HARRINGTON, Governor, et al.
• Court: Maryland Court of Appeals

98 A. 289

129 Md. 123

D. E. FOOTE & CO. et al. v. HARRINGTON, Governor, et al.

No. 27.

Court of Appeals of Maryland

June 22, 1916

Appeal from Baltimore City Court; John J. Dobler, Judge.

Mandamus by D. E. Foote & Co. and others against Emerson C Harrington, Governor, and others. From an order dismissing the petition for the writ, plaintiffs appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON STOCKBRIDGE, and CONSTABLE, JJ.

W Thomas Kemp and George Whitelock, both of Baltimore (Whitelock, Deming & Kemp and Rignal W. Baldwin, all of Baltimore, on the brief), for appellants. Albert C. Ritchie, Atty. Gen., for appellees.

CONSTABLE J.

This appeal is from an order dismissing a petition for a writ of mandamus to require the appellees to recommend to the General Assembly the passage of a law refunding to the appellants taxes paid by them under a law subsequently held unconstitutional.

The General Assembly of 1910 passed two acts relating to taxes on oysters. Chapter 735, among other things, imposed a tax of 2 cents a bushel on all oysters sold by commission merchants and others selling by less than the cargo. This act was tested as to its constitutionality, and was held by this court to be unconstitutional because a restriction upon interstate commerce and as not coming within the provision of section 10, article 1, of the Constitution of the United States, whereby the states are authorized to impose import or export duties sufficient for their inspection laws, because on its face it disclosed the fact that the whole tax was not to be used for the expenses of the execution of the law, but one-half was to be used for reshelling the oyster bottoms of the state. Foote v. Clagett, 116 Md. 228, 81 A. 511. Chapter 413, by section 69, imposed a tax of 1 cent a bushel "upon all oysters unloaded from vessels at the place where said oysters are to be no further shipped in bulk in vessels," the tax to be borne equally by the seller and the buyer, but to be paid by the buyer. This act was also tested as to its constitutionality; and in Foote v. Stanley, 117 Md. 335, 82 A. 380, this court held the tax valid. The Supreme Court of the United States, however, in 232 U.S. 494, 34 S.Ct. 377, 58 L.Ed. 698, reversed the decree of this court upon the ground that there was a failure to show that the amount collected was not in excess of that required for the inspection, and was therefore a burden upon interstate commerce.

From the date of the decree of this court upholding the constitutionality of the tax until the reversal by the Supreme Court, the appellants, who are oyster packers, paid the tax as imposed, under protest. After the reversal the appellants sought to have the taxes paid by them refunded, and to that end prepared a bill to be introduced in the General Assembly, and sent a draft of it to the state comptroller, with the request for his approval of it. Later the appellants, with counsel, appeared before the board of public works at a special meeting, called for the purpose of considering these claims, and urged upon those officials, Governor, treasurer, and comptroller, their approval of the bill. The recommendation of these officials, of course, was requisite for a bill of this character by virtue of article 3, section 33, of the state Constitution, which provides:

"The General Assembly shall not pass local or special laws in any of the following renumerated cases, viz.: *** refunding money paid into the state Treasury, *** unless recommended by the Governor or officers of the treasury department."

The Governor, treasurer, and comptroller refused to recommend the passage of the bill, and thereupon the petition for a writ of mandamus was filed, alleging therein the facts as we have above enumerated them and praying that the appellees might be ordered to certify to the correctness of the claim of the appellants, and to recommend to the General Assembly the passage of a bill to refund the same to the appellants.

There is no dispute between the adverse parties as to the law governing the writ of mandamus as held by a long line of decisions in this state, but the difficulty lies rather in the application of the conceded law. For instance, it is not disputed that mandamus will lie to compel state officials to perform purely ministerial acts, but, where the act to be performed requires discretion, mandamus will not lie further than to compel them to exercise their discretion. In other words, where the act to be performed requires the exercise of judgment and discretion, and the officers charged with the exercise of that judgment and discretion refuse to act at all, the courts will require those officials to exercise their discretion, but will not control or review the decision made. The principle is clearly stated by Judge Schmucker, in delivering the opinion of this court, in Henkel v. Millard, 97 Md. 24, 54 A. 657:

"It is well settled in this state that although the courts will, in a proper case, exercise their mandatory power to require a public official to perform a strictly ministerial act, or to exercise a discretion conferred upon him by the law, they will not interfere with or control the method of the exercise of such discretion or of the performance of any duty requiring the exercise of judgment or discretion, nor will they correct errors of judgment or discretion which have been honestly made in the discharge of such duty. Brown v. Bragunier, 79 Md. 236 ; State v. Latrobe, 81 Md. 233 ; Wailes v. Smith, 76 Md. 477 ; Madison v. Harbor Board, 76 Md. 395 ; Wiley v. School Commissioners, 51 Md. 404; Alberger v. Mayor, etc., 64 Md. 6 ." In this case, the officers having acted, it is only necessary to inquire whether the constitutional duty imposed upon them is a ministerial or a discretionary one. And Judge Robinson in Wailes v. Smith, 76 Md. 469, 25 A. 922, has

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