McPherson v. Leonard

• Decision Date: 03 July 1868
• Parties: DUNCAN MCPHERSON v. WILLIAM J. LEONARD, Comptroller.
• Court: Maryland Court of Appeals

29 Md. 377

DUNCAN MCPHERSON v. WILLIAM J. LEONARD, Comptroller.

Court of Appeals of Maryland

July 3, 1868

APPEAL from the Superior Court of Baltimore City.

The appellant filed a petition in the Superior Court of Baltimore city, alleging that by the Act of 1867, ch. 337, it was provided that the militia of the State should be organized and a National Guard formed out of parts of said militia that by the twelfth section of the Act, it was further provided that whenever any company of the National Guard should have provided itself with a proper uniform, to the satisfaction of the Inspector General, the members thereof should be re-imbursed for the expense, either in whole or in part, to an amount not exceeding twenty dollars per man; that subsequently the National Guard was formed in accordance with the provisions of this law, and on the 14th of May, 1867, the Adjutant General of the State, by the direction of the Governor, advertised for sealed proposals for furnishing uniforms to said National Guard, that proposals made by the petitioner were accepted by the Adjutant General by order of the Governor, and on the 14th of June, 1867, a contract was entered into between the petitioner and the Adjutant General under the direction and by authority of the Governor, for furnishing for said National Guard a thousand suits of uniform, at eighteen dollars and eighty cents each; that the petitioner made other like contracts and had fully complied with the provisions thereof, but had been paid nothing by the State for such services. The petition further alleged that at the session of the General Assembly of 1868, a law was passed entitled, "An Act to provide for the liquidation and settlement of claims heretofore contracted for arming and uniforming the militia," said law being chapter 425, of said session; that by this Act the Comptroller of the State was authorized and directed to receive and audit all claims and demands for arms or equipments, or uniforms, furnished to the State or the militia, since the session of the General Assembly of 1867, on contract with or order by, or request of the Governor; that the claim of the petitioner came within the purview of said law, and he had presented the same to the Comptroller, who had refused to receive or audit it, alleging as a reason therefor that the law was invalid. The petition asked that a mandamus might issue against the Comptroller commanding him to receive and audit the claim of the petitioner as provided by the said Act of Assembly. The Comptroller answered admitting the allegations of the petition, except the allegation, that at the session of the General Assembly of Maryland, in the year 1868, a law was passed entitled, "An Act to provide for the liquidation and settlement of claims, &c." the respondent admitted that there was on file in the Court of Appeals a paper-writing, filed in said Court with the laws passed by the General Assembly of Maryland at their session in January in the year 1868, numbered 425; and that the title and purport of said paper-writing were truly set forth in said petition, and that the Great Seal of the State was duly impressed thereon; and that the signatures thereto, including the approval and signature by the Governor, were the genuine signatures of the officers of the two Houses of the said General Assembly respectively, and of the said Governor; and that the copy of said paper-writing, filed with the said petition, was a true copy thereof; but the respondent denied that the said paper-writing purported or professed by its terms to have been enacted by the General Assembly of Maryland, and therefore was not a law of the State of Maryland, because the Constitution of the State of Maryland, Art. 3, sec. 29, declared that, "The style of all laws of this State shall be, 'Be it enacted by the General Assembly of Maryland,' " and that this was a formula for the enacting clause of all laws, imperative upon the General Assembly, and indispensable to the validity of their enactments.

The respondent further objected, that even if he should receive and audit the claim of the petitioner, his action thereon would be nugatory, inasmuch as he was authorized by the Constitution only to issue "his warrants for money to be paid out of the Treasury, in pursuance of appropriations by law," and that the Constitution required that "every such law should distinctly specify the sum appropriated," and declared that "no money should be drawn from the Treasury of the State by any order or resolution, nor except in accordance with an appropriation by law; and the respondent charged that the paper-writing in question, even if otherwise valid as law, did not profess to appropriate any sum of money whatever, and did not distinctly specify the sum appropriated according to the intent and meaning of the Constitution of the State. It was agreed by the parties that the sole question to be submitted to the Court, should be the sufficiency in law of the reasons set forth in the answer, for not receiving and auditing the claim of the petitioner. The Court, (DOBBIN J.,) passed an order pro forma, dismissing the petition, and thereupon this appeal was taken.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ROBINSON, J.

C. D. McFarland and Wm. S. Waters, for the appellant:

1st. Is the law invalid because the style, as prescribed by the Constitution, is not inserted in it?

Statutes made for the public good are expounded without restrictions. Dwarris on Statutes, 60. The great rule adopted in construing statutes is, to ascertain the intention of the Legislature; and in the construction of the Acts of a Legislature or the provisions of a constitution, Courts constantly take in review the entire circumstances, the inducements which led to the passage of the law, and the consequences of its being carried out, or its failure to be carried out. Purdy vs. The People, 4 Hill, 402-3.

It has been frequently determined that the title of an Act is no part of the Act. 1 Kent Com., 519; Mills vs Wilkins, 6 Modern Rep., 62. With the same force may it be said that the style of the Act is no part of it. The constitutionality of the Act under discussion, having been raised in this case, is a question which Courts will approach with great caution, ponder it, examine it in every possible aspect, and never declare the Act void unless the nullity and invalidity is such as to place the matter beyond doubt. 16 Pick., 95; Tabor vs. Crook, 15 Michigan, 325; Newland vs. Marsh, 19 Ills., 384; Clark vs. City of Rochester, 24 Barb., 471; The State, use of Wash. Co. vs. Balt. & Ohio R. R. Co., 12 G. & J., 438; The Regents of the University of Maryland vs. Williams, 9 G. & J., 383; Mayor, &c., of Balt. vs. The State, ex rel. of the Board of Police of Balt., 15 Md. Rep., 475, 476, 477.

A statute is void only when it clearly, palpably and plainly violates the Constitution, and in such a manner as to leave no doubt in the mind of the judges. This is not opposed by a single dictum. Sharpless vs. Mayor of Philadelphia, 21 Penn., 164; Ex parte M'Collum, 1 Cowen, 550; Ogden vs. Saunders, 12 Wheat., 270.

This law is clearly constitutional, although it does not contain the ""style" provided for in Article 3, section 29 of the Constitution, because said provision is directory only. A Constitution is mandatory when it gives a direction in which the rights and immunities of a citizen are involved. This principle may be illustrated by referring to other provisions in the Constitution--that a law cannot be passed providing for imprisonment for debt; the property of the wife shall be protected from the debts of her husband; no lottery grant shall be authorized; no one can be deprived of the right of trial by jury, or the liberty of the press abridged. These provisions are mandatory-- the General Assembly cannot disregard them--but the provision in the Constitution relating to the style of the law pertains to form only, and is not of its essence or substance. Stryker vs. Kelly, 7 Hill, 24; Rex vs. Lexdale, 1 Burrow, 447; Marchant vs. Langworthy, 6 Hill, 647; Pacific Rail Road vs. The Governor, 23 Missouri, 368; Anderson vs. Baker, 23 Md. Rep., 571, 585, 586; The Princes' Case, 8 Coke, 20.

A law is directory only when it contains no clause declaring the law void, if the provision is not complied with. The People vs. The Supervisors of Chenango, 4 Selden, 328; 2 Am. Law Reg., new series, 409. The provision in the Constitution of several of the States, requiring each Act to contain but one subject or object, is directory. Pim vs. Nicholson, 6 Ohio, 176; Miller vs. Gibson, 3 Ohio, 475; Lehman vs. McBride, 15 Ohio, 602; Davis vs. State, 7 Md. Rep., 152; Pierpont vs. Crouch, 10 California, 316; Washington, et al. vs. Page, et al., 4 California, 388.

It cannot, therefore, be successfully contended that the style of a law is anything more than directory. A clause in the Constitution of a State requiring all writs to be in the name of the State, is merely directory, and the writ is good although it does not so run. Davis vs. Wood, 7 Missouri, 162. A provision in the Constitution of a State requiring members of the Legislature to take a particular oath--their failure to do so does not invalidate their proceedings. Hill vs. Boyland, 40 Miss., 618; Am. Law Review, April, 1868-- 503.

"Whenever the General Assembly shall enact any Public General Law, not amendatory of any section or Article in the Code, it shall be the duty of the General Assembly to enact the same in articles and sections in the same manner as the Code is arranged." This provision of the Constitution is in the same article and section that the provision for the style of law, yet it has been declared to be directory merely, and not...