Gordy v. Dennis

• Decision Date: 29 March 1939
• Docket Number: 87.
• Parties: GORDY, State Comptroller, v. DENNIS.
• Court: Maryland Court of Appeals

5 A.2d 69

176 Md. 106

GORDY, State Comptroller, v. DENNIS.

No. 87.

Court of Appeals of Maryland

March 29, 1939

Appeal from Baltimore City Court; Robert F. Stanton, Judge.

On reargument.

Judgment affirmed.

For prior opinion, see 3 A.2d 715.

BOND C.J., and SLOAN and MITCHELL, JJ., dissenting.

William C. Walsh, Atty. Gen., and William L Henderson, Deputy Atty. Gen., for appellant.

William L. Rawls and Julian de Bruyn-Kops, Jr., both of Baltimore (Marbury, Gosnell & Williams, of Baltimore, on the brief) for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, JOHNSON, and DELAPLAINE, JJ.

PARKE Judge.

After the six members of the court, who were entitled after the first argument to express an opinion, had equally divided on the principal question presented on this appeal, a re-argument was ordered on the application of the Attorney General of the State. All the judges sat on the re-argument, and a majority of the court were of the opinion that the judgment of the nisi prius court should be affirmed. Because of the importance of a prompt decision, a per curiam order of affirmance was filed to be followed by an opinion of the court, and the dissent of the minority.

The first question is whether the appeal could be entertained since the problem raised involved the exemption from taxation of the salary of every judge of all the courts of the State. The circumstance that the action had been brought against the chief judge of the Supreme Bench of Baltimore City and not against any member of the appellate court left every one of the judges of the latter court with a common, although indirect, interest in the result.

The only constitutional disqualification specifically imposed upon a member of the appellate bench is that he may not participate in the decision of any cause which he heard below. Constitution, Art. 4, sec. 15. In addition to this particular provision, there is another constitutional one of general application that: 'No Judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consanguinity within such degrees as now are or may hereafter be prescribed by Law, or where he shall have been of counsel in the case.' Art. 4, sec. 7. The statutory law has defined this degree of relationship for the disqualification of every judge of the Court of Appeals, or any judge of a circuit court or the supreme bench of Baltimore City to be a connection by consanguinity or affinity with any party to a cause within the third degree as then defined. Code, Art. 26, sec. 31. Furthermore, the former authorization of the appointment of a special judge in the event of a disqualification of a judge of the Circuit Courts or of the courts of Baltimore City was omitted after the Constitution of 1864 was superseded by that of 1867. Const. of 1851, Art. 4, sec. 22; Constitution of 1864, Art. 4, sec. 8; Niles on Constitutional Law, pp. 418, 451, 452.

It is apparent that these constitutional and statutory provisions do not contemplate the unusual conditions of this appeal where every judge is collaterally affected by the judgment to be rendered on the incidence of a tax upon income.

Under these circumstances the disqualification of all the judges would destroy the only tribunal in which relief by appeal may be sought. To bar the opportunity for redress by appeal is more prejudicial to sound public policy than the alternative to permit an appeal to be heard by judges whose disqualification is in their collateral interest in the legal effect of the judgment to be rendered. So, of necessity, the rule as to the disqualification of judges must yield if the right of appeal is to be preserved. 'The settled rule of law is that, although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but he must do so if the case cannot be heard otherwise.' Pollock, First Book of Jurisprudence, 235; 1 Freeman on Judgments, 5th ed., sec. 330; and reviews of cases in 39 A.L.R. 1476; L.R.A.1915E, 858; Ann.Cas.1917A, 1061. There being neither constitutional nor statutory mandate to the contrary on the facts of this record, the Court is of the opinion that the appeal must be entertained. In re Duncan, Duncan v. McCall, 139 U.S. 449, 455, 11 S.Ct. 573, 35 L.Ed. 219; Com. v. McLane, 4 Gray, Mass., 427; Hill v. Wells, 6 Pick., Mass., 104; Pearce v. Atwood, 13 Mass. 324; Com. v. Ryan, 5 Mass. 90; Bliss v. Caille Bros. Co., 149 Mich. 601, 113 N.W. 317, 12 Ann.Cas. 513; In re Ryers, 72 N.Y. 1, 28 Am.Rep. 88; Philadelphia v. Fox, 64 Pa. 169; Galey v. Com'rs of Montgomery County, 174 Ind. 181, 91 N.E. 593, Ann.Cas.1912C, 1099; State v. Nygaard, 159 Wis. 396, 401, 150 N.W. 513, Ann.Cas.1917A, 1065; State v. Houser, 122 Wis. 534, 100 N.W. 964; Moses v. Julian, 45 N.H. 52, 84 Am.Dec. 114. See County Commissioners for Charles County v. Wilmer, 1917, 131 Md. 175, 176, 179-181, 101 A. 686; Blackburn v. Craufurd, 1864, 22 Md. 447, 455, 458-460; Magruder v. Swann, 1866, 25 Md. 173, 205, 206; Buckingham v. Davis, 1856, 9 Md. 324, 328-330; Thellusson v. Rendlesham, 7 H.L.Cas. 429, 11 Reprint, 172; Grand Junction Canal Co. v. Dimes 12 Beav. 63, 50 Reprint, 984, 3 H. & L. Cas. 759; 10 Reprint, 301; In re Great Charte Parish, 2 Str. 1173, 93 Reprint, 1107. Compare London v. Markwick, 11 Mod. 164, 88 Reprint, 964; Anon. (1698), 1 Salk. 396, 91 Reprint, 1107; Evans v. Gore, 253 U.S. 245, 247, 40 S.Ct. 550, 64 L.Ed. 887, 11 A.L.R. 519. See Ex parte Bowles, 164 Md. 318, 325-327, 165 A. 169.

An issue of law between parties in reference to a constitutional right must have an appropriate tribunal for its adjudication.

The principal question is one of constitutional law. It is whether the salary which is received by the Chief Judge of the Supreme Bench of Baltimore City may be embraced in the income upon which a State income tax is laid pursuant to the terms of Chapter 11 of the Acts of the General Assembly of Maryland passed at its extraordinary session held in 1937. While the judgment in the pending litigation affects directly the particular judge against whom the action is brought, the ruling of the appellate Court will apply collaterally to the other members of the judiciary. So, in its broader aspect, the question may be more simply stated to be whether the salary paid a member of the judiciary can be lawfully included in the income upon which a tax is imposed by the State, notwithstanding the mandate of the Constitution of Maryland that 'no fees, or perquisites, commission or reward of any kind, shall be allowed to any Judge in this State, besides his annual salary, for the discharge of any Judicial duty'; and further that the salary 'shall not be diminished during his continuance in office'. Constitution 1867, Article 4, section 6, and sections 24, 31.

The imperative inhibition of the present Constitution (1867) that a judge's salary shall not be diminished during his continuance in office was embodied in the State's first Constitution of 1776 in Article 30 of the Declaration of Rights. The form there adopted was: 'That salaries, liberal, but not profuse, ought to be secured to the Chancellor and the Judges, during the continuance of their commissions, in such manner, and at such times, as the Legislature shall hereafter direct, upon consideration of the circumstances of this State.' Niles on Constitutional Law, p. 357. Some thirteen years later the Constitution of the United States stated the rule more explicitly in section 1 of Article 3, U.S.C.A., by these words: '* * * The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.' Since the people of the several original states established the Constitution by ratification, this section of the Constitution has not been changed.

The wording of the Constitution of 1776 was not altered until Chapter 55 of the Acts of 1804, proposed certain changes, which became, by ratification in 1805, a part of the Constitution of Maryland. By this amendment, the language of the Constitution of the United States was closely followed, and the mandate read: 'The salaries of the said judges shall not be diminished during the period of their continuance in office.' Niles on Constitutional Law, p. 377. In the Constitution of 1851 (Niles on Constitutional Law, pp. 413-415; Const.1851, Art. 4, sec. 4, sec. 9), as well as in the Constitution of 1864 (Niles on Constitutional Law, pp. 447, 455; Const.1864, Art. 3, sec. 34, Art. 4, Part 3, sec. 28), the increase as well as the diminution of the judicial salary was prohibited. There was no change in this wording until the Constitution of 1867 when the prohibition of an increase in salary was omitted, and only the diminution of salary denied. Const.1867, Art. 4, secs. 24-31. So that with the adoption of the first Constitution in Maryland in 1776 until the present day there has been a constant denial to the General Assembly of Maryland of the power to diminish the salary of a judge during his continuance in office. Since the Constitution of 1851 there has also subsisted the kindred provision that the salary or compensation of any public officer shall not be increased nor diminished during his term of office. Niles on Constitutional Law, p. 409; Const.1851, Art. 3, sec. 23; p. 447, Const.1864, Art. 3, sec. 34, p. 189, Const.1867, Art. 3, sec. 35; Calvert County Com'rs v. Monnett, 164 Md. 101, 164 A. 155, 86 A.L.R. 1258.

Although there is abundant evidence that in every constitutional convention the amount of compensation to be paid for...