McMullen v. Shepherd

• Decision Date: 20 June 1918
• Docket Number: 26.
• Citation: 104 A. 424,133 Md. 157
• Parties: McMULLEN, State Comptroller, v. SHEPHERD.
• Court: Maryland Court of Appeals

104 A. 424

133 Md. 157

McMULLEN, State Comptroller, v. SHEPHERD.

No. 26.

Court of Appeals of Maryland

June 20, 1918

Appeal from Circuit Court, Anne Arundel County; Robert Moss, Judge.

"To be officially reported."

Petition for mandamus by James S. Shepherd, Land Commissioner of the State of Maryland, against Hugh A. McMullen, Comptroller of the State. From an order that the writ issue, respondent appeals. Reversed, and petition dismissed.

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

Albert C. Ritchie, Atty. Gen., for appellant.

J. C France and Edgar Allan Poe, both of Baltimore, for appellee.

CONSTABLE J.

James S. Shepherd, land commissioner of the state of Maryland filed his petition praying that Hugh A. McMullen, comptroller of the state of Maryland, be directed to issue his warrant upon the treasury of the state of Maryland in favor of the said petitioner in the amount of 25 per cent. of the moneys paid by the petitioner into the treasury, as shown by accounts filed by him with the comptroller on the 31st day of March and on the 30th day of September, 1917. The comptroller filed an answer to the said petition denying that the petitioner was entitled to the 25 per cent. of moneys referred to in his petition, and further averring that chapter 318 of the Acts of the General Assembly of Maryland of 1900, codified as section 13 of article 54 of the Annotated Code of Maryland, upon which alone the petitioner based his alleged right to the writ of mandamus, was unconstitutional, null, and void so far as the same provides that:

"25 per cent. of such moneys so received the treasurer shall pay over on warrant of the comptroller semiannually to the commissioner of the land office."

The petitioner demurred to the answer, and, upon the court overruling the demurrer, the writ was ordered issued, and this appeal taken. This appeal brings up for decision the right of the land commissioner to receive, by way of compensation, fees of his office in addition to the salary provided by the Constitution.

The only question involved is whether chapter 318 of the Acts of 1900 is obnoxious to the Constitution of Maryland and therefore void. It is a well-settled rule that:

"The Legislature has all power, except such as is expressly denied to it by the state or federal Constitution." Thrift v. Laird, 125 Md. 70, 93 A. 449.

The constitutional provisions relating to the land commissioner are found in sections 4 and 5 of article 7, and are as follows:

"Sec. 4. There shall be a commissioner of the land office, who shall be appointed by the Governor, by and with the advice and consent of the Senate, who shall hold his office during the term of the Governor, by whom he shall have been appointed, and until his successor shall be appointed and qualified. He shall perform such duties as are now required of the commissioner of the land office, or such as may hereafter be prescribed by law, and shall also be the keeper of the chancery records. He shall receive a salary of one thousand five hundred dollars per annum, to be paid out of the treasury, and shall charge such fees as are now, or may be hereafter fixed by law. He shall make a semiannual report of all the fees of his office, both as commissioner of the land office, and as keeper of the chancery records, to the comptroller of the treasury and shall pay the same semiannually into the treasury.

Sec. 5. The commissioner of the land office shall also without additional compensation, collect, arrange, classify, have charge of, and safely keep all papers, records, relics and other memorials connected with the early history of Maryland not belonging to any other office."

The Constitution of 1851, section 6 of article 7, provided that the commissioner should sit as judge of the land office and should receive as a salary therefor the sum of $200 per year and should retain for the performance of the other duties of his office, as compensation, the fees received. By chapter 415 of the Acts of 1853, and chapter 149 of the Acts of 1854, the commissioner was authorized to receive fees for recording papers and proceedings in land cases, and further to deduct as his compensation 25 per cent. from all moneys on account of public lands, the remaining 75 per cent. to be paid to the state. By chapter 208 of the Acts of 1861-62, the commissioner was made the custodian of the records of the court of chancery and was paid a salary of $500 per annum.

As we have seen from a perusal of the present constitutional provision relating to this office, it is apparent that somewhere between the time of the adoption of the Constitution of 1851 and the Constitution of 1867 it changed from a fee office to a salary office, and we will find that this change was made by the framers of the Constitution of 1864 and continued with slight modifications in the Constitution of 1867.

In construing the Constitution we are to consider the circumstances attending its adoption and what appears to have been the understanding of the people when they adopted it, and one of the useful and most helpful sources is the debates of the convention. Bandel v. Isaac, 13 Md. 202; Mayor, etc., v. State, 15 Md. 376; Bonsal v. Yellott, 100 Md. 481, 60 A. 593, 69 L. R. A. 914; Jackson v. State, 87 Md. 191, 39 A. 504.

According to the Debates of the Maryland Constitutional Convention of 1864, as found in volume 1, at page 163, the committee on civil offices made a report to the convention in which they recommended that the land commissioner should be elected by the people for the term of six years, and should receive a salary of $1,800 and should turn all of the fees of his office into the treasury. On page 1089 of the second volume of the "Debates," the section referring to the land office was first taken up for debate. The section was read, and the president of the convention said:

"The President: 'I have been requested by the commissioner of the land office to state to the convention that the salary fixed in this section does not amount to what he actually receives at the present time. I think h

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