Dorsey v. Petrott
| Decision Date | 22 May 1940 |
| Docket Number | 6. |
| Citation | 13 A.2d 630,178 Md. 230 |
| Parties | DORSEY et al. v. PETROTT, Secretary of State (MIDDENDORF, Intervenor). |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court for Anne Arundel County; Ridgely P Melvin, Judge.
Proceeding by Philip Dorsey, Jr., and others against Francis Petrott Secretary of State of the state of Maryland, for a writ of mandamus to compel the Secretary to refuse to proceed with the reference of a statute, Acts 1939, c. 353, to a vote of the electorate under provisions of the Referendum Amendment of the Constitution, Const. art. 16, §§ 1-6, wherein J William Middendorf, Jr., intervened. From an order of the circuit court dismissing the petition, plaintiffs appeal.
Affirmed.
Benjamin Michaelson, of Annapolis (Hugh M. Frampton, of Washington, D. C., on the brief), for appellants.
William C. Walsh, Atty. Gen., and William L. Henderson, Deputy Atty. Gen. (H. Vernon Eney, Asst. Atty. Gen., on the brief), for appellee Petrott.
R. Samuel Jett, of Baltimore, for appellee J. William Middendorf, Jr., intervenor.
Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.
The appeal in this case is from an order of the Circuit Court for Anne Arundel County dismissing the petition of the appellants for a writ of mandamus to compel the Secretary to refuse to proceed with the reference of Chapter 353 of the Acts of the General Assembly of Maryland 1939, to a vote of the electorate under the provisions of the Referendum Amendment, Article XVI, of the Constitution. All the procedural formalities for the submission of the Act have been complied with, and the sole question on the demurrer to the petition, and on this appeal, is whether Chapter 353 is a referable Act under the Amendment. The problem is one of constitutional law, and its answer depends upon whether the Act is a law making an 'appropriation for maintaining the State Government.'
Chapter 673 of the Acts of 1914 of the General Assembly of Maryland, which was ratified by the vote of the State at the election held on November 2, 1915, added Article XVI, title 'Referendum' to the Constitution of the State. By this amendment the people reserved to themselves power by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly of Maryland, if approved by the Governor or if passed by the General Assembly over the veto of the Governor. The power thus reserved is known as the Referendum, and its scope, mechanism, operation and effect are prescribed and defined in the six sections of Article XVI. The general application of the Referendum is subject to two express limitations which are found in Sections 2 and 6. The latter exception is that 'No law or constitutional amendment, licensing, regulating, prohibiting, or submitting to local option the manufacture or sale of malt or spirituous liquors shall be referred or repealed under any Act [sic] of the provisions of this Article.' Beall v. State, 131 Md. 669, 673, 103 A. 99; Strange v. Levy, 134 Md. 645, 648, 107 A. 549; Poisel v. Cash, 130 Md. 373, 374, 100 A. 364. The exception quoted has no relation to the problem at bar. The limitation is Section 2 is the one with reference to which the pending controversy is concerned. The portion of that Section which is to be construed is found in the two sentences at its conclusion: Dinneen v. Rider, 152 Md. 343, 354, 136, A. 754; Berlin v. Shockley, 174 Md. 442, 199 A. 500.
Since the statute for which a referendum is sought provides for no appropriation for maintaining or aiding any public institution within the contemplation of the Referendum of the Constitution, the problem of construction is thus restricted to the words 'No law making any appropriation for maintaining the State Government * * * shall be subject to rejection or repeal under this Section.'
The subject matter of the Act is the conservation of the fisheries of tidewater Maryland, which is undoubtedly a function of government. These fisheries constitute one of the most important and valuable natural resources of the State and their protection, preservation, development and maintenance are an imperative duty of Government. So, if the Act under consideration is a law making an appropriation for the maintenance of the tidewater fisheries, the Act would not be referable to the electorate. The inquiry is narrowed, therefore, to whether the Act is a 'law making an appropriation' within the meaning of the Referendum Amendment when construed in connection with other related provisions of the Constitution.
To know what the term 'appropriation' here means it is necessary to look to the constitution of the State. By section 32 of Article III of the Constitution no money may be drawn from the Treasury of the State without an appropriation by law which shall distinctly specify the sum appropriated and the object to which it shall be applied, except that a contingent fund may be place at the disposal of the executive, who shall report to the General Assembly at each session the amount expended and the purposes to which it is applied.
Since an early stage in its legislative and constitutional history a law making an appropriation has had a definite significance. In the first Constitution of Maryland, which was adopted in 1776, the House of Delegates alone had the power to originate money bills. [1] For the declared purpose of preventing altercation about what is a money bill, the Constitution promulgated its nature in the words 'no bill, imposing duties or customs for the mere regulation of commerce, or inflicting fines for the reformation of morals, or to enforce the execution of the laws, by which an incidental revenue may arise, shall be accounted a money bill: but every bill, assessing, levying, or applying taxes or supplies, for the support of government, or the current expenses of the State, or appropriating money in the treasury, shall be deemed a money bill.' [2] So, it may be said that this definition of money bills embraces bills providing for the raising of public revenue and for the making of grants or appropriations of the public money in the treasury. [3] In the signification given the word, an appropriation, in the constitutional sense, would apparently relate to the withdrawal of public funds in the treasury by bill or legislative grant. It will be seen, however, that this is too restricted a definition, and that an appropriation may be by legislative act or constitutional declaration.
The public funds in the treasury were later further protected by an amendment to the Constitution which was proposed by Chapter 339 of the Acts of 1843, and which became a part of the Constitution after its confirmation, on February 14, 1845, by Chapter 86 of the Acts of 1844. Const. of 1776, Art. LIX, Niles on Maryland Constitutional Law, p. 393, 371. The amendment so made was that 'No money shall be drawn from the Treasury of the State but in consequence of an appropriation made by law.' The second Constitution of the State was adopted in 1851. By its provisions money bills no longer were required to originate in the House of Delegates but could be initiated indifferently in either the House of Delegates or in the Senate, [4] but the restriction imposed with reference to the disbursement of State money was enlarged by the mandate: [5] The constitutional section quoted remained unchanged, and was incorporated in its entirety in the third Constitution of 1864, art. 3, § 31. [6] Except for the addition of an inhibition of a withdrawal 'by any order or resolution', the Section was adopted and continued in the fourth and present Constitution of 1867, art. 3, § 32. [7] The change noted was apparently made without discussion, [8] and its effect is to exclude a legislative order or resolution from the category of an appropriation within the meaning of the provision. Since the Constitution of 1867, the phrasing of the Section is identical with that of the Constitutions of 1864 and 1851, except that the addition mentioned modifies the introductory clause before the proviso so that it now reads: 'No money shall be drawn from the Treasury of the State by any order or resolution, nor except in accordance with an appropriation by law; and every such law shall distinctly specify the sum appropriated and the object to which it shall be applied.' [7]
The provisions of the Constitution were held in McPherson v Leonard, 1868, 29 Md. 377, to have been sufficiently complied with by a statute which directed the Comptroller to pass...
To continue reading
Request your trial
-
Baltimore County Coalition Against Unfair Taxes v. Baltimore County, 124
...state government from the referendum process was "to prevent interruptions of government." 173 Md. at 10, 192 A. 777. Dorsey v. Petrott, 178 Md. 230, 13 A.2d 630 (1940), involved a state statute dealing with the conservation of fisheries, a function of state government. The inquiry was whet......