Benson v. State
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Benson v. State, N o. 7, Sept. Term 200 5. Opinion by Harrell, Jr. CONSTITUTIONAL LAW - DECLARATION OF RIGHTS - ARTICLE 14 - NO AID, CHARGE, TAX, BURTHEN OR FEES OUGHT TO BE RATED OR LEVIED WITHOUT THE CONSENT OF THE LEGISLATURE - ARTICLE 8 - SEPARATION OF POWER S POWER TO SET RATE OF TAX OR CHARGE - DAMAGES - INJUNCTIVE RELIEF PRIVATE RIGHT OF ACTION - CONSUMER PROTECTION ACT - MARYLAND TORT CLAIMS ACT - CONSTITUTIONAL TORT A monetary commission remitted to the State by the State-selected vendors of collect telephone call services placed by inmates in State correctional facilities is authorized by statute, but the statute does not specify the particular rate of the commission. The rate of the commission was set by an Executive action. Such an arrangement does not v iolate Article 14 of the Declaration of Rights, which prov ides that no aid, charge, tax, burthen or fees ought to be rated or levied, under any pretense, without the consent of the Leg islature. Althoug h a private right of action seeking injunctive relief may lie for an alleged violation of Article 14, and the monetary commission in the present case is a charge or fee[] under the Article, the Legislature consented to its imposition when it authorized the imposition of a commission on telephone services in order to finance the Inmate Welfare Fund and granted broad authority to the pertinent Executive agency to regulate the operation of the telecommunications systems in State facilities. Neither Article 8 (separation of powers) nor Article 14 require th e Legislature to set the amount or rates of charges/taxes. Because a violation of Article 14 is not a constitutional tort for which damages may be sought, the procedural requirements of the Maryland Tort Claims Act do not apply to Article 14 claims. The telephone commission in the present case does not violate the Consumer Protection Act becau se the A ct does not gov ern the S tate Go vernm ent s ac tivities in th e prese nt case. IN THE COURT OF APPEALS OF MARYLAND No. 7 September Term, 2005 CRY STAL A. BEN SON , et al. v. STAT E OF M ARY LAN D, et al. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: December 7, 2005 We issued a writ of certiorari to the Court of Spec ial Appeals, before it decided the appeal in this case, to consider several questions: 1. Whether the State of Maryland violates Articles 8 and/or 14 of the Declaration of Rights or the Maryland Consumer Protection A ct (CPA), or is subject to the common law actions of unjust enrichment or for money had and received, when the State receives a commission on charges collected from collect phone calls made by prison inmates where the authoriz ing statute fails to establish the specific rate of commission to be remitted to the State. 2. Whether the notice provisions of the Maryland Tort Claims Act (MTCA) are satisfied when a claimant: (a) brings an action on b ehalf of a class of p laintiffs; (b) fails to state the specific amount of damages sought, yet the Office of the State Treasurer (Treasure r) could po ssibly ascertain the amount of dama ges by investig ation; and, (c) files a claim in court seeking injunctive relief one month after giving notice of the claim to the Treasurer when the claim su bmitted to the Treasurer sought dam ages only. 3. Whether the Circuit Court erred in denying post-judgment motions seeking permission to advance additional allegations beyond those asserted in Appellants last amended class action complaints. I. A. Background Prison inmates who satisfy the security requirements of their respective correctional facilities are permitted to make non-emergency telephone ca lls, but only on a c ollect call basis.1 Code of Ma ryland Regu lations (CO MAR ) § 12.02.14 .01(C)(2). T he State Department of Bud get and M anagem ent (DB M), with the approv al of the Board o f Public 1 In instances of emergency, the inmate is allowed to use an institutional telephone withou t charge . Code of M aryland R egulatio ns (CO MA R) 12.0 2.14.01 (C)(1). Works, c ontracted w ith two priva te compa nies to install, maintain, and service telephones and monitoring equipme nt in the State s correctional facilities. The customer rates for these calls, which ar e paid by the persons accepting the collect calls placed by the inmate, are set under the contracts. At the operative times in the present litigation, the contract rates were as follows: a flat charge of $0.85 for local calls; $3.45 for the first minute, plus $0.45 for each additional minute, for intra-state long distance calls; and $4.84 for the first minute, plus $0.89 for each additional minute, fo r inter-state long distance calls. The telephone companies collected the charges from the parties receiving and accepting the calls, and then remitted the commissions to the State (a fixed percentage of the total telephone fees charged per call). The telephone commission rates were 20% of local call charges and 42% of long distance call charges.2 Between Fiscal Year (FY) 1999 and FY 2002, the State receive d betw een $5 .6 million a nd $7.3 million e ach year f rom the telepho ne com mission s. 2 In 2003, the customer rates and the telephone commission percentages were changed by contract and currently are as follows: for local calls, a flat charge of $0.85 per c all unless the inmate use d the debit/p repaid prog ram or a fla t charge of $0.50 if the debit/prepa id program was used; for intra-state long distance calls, a charge of $2.85 for the first minute, plus $0.30 for each add itional minute , absent the d ebit/prepaid program, or a charge of $0.30 for the first minute, plus $0.30 for each a dditional m inute, with the debit/prepaid program; for inter-state long distance, a charge of $3.00 for the first minute, plus $0.30 for each additional minute, w ithout using the debit/prep aid program or a charge of $0.30 for the first minute, plus $0.30 for each addition al minu te, using the deb it/prepa id prog ram. The current commission rates remitted to the State are 48% of charges for local calls and 57.5% of charges for long distance calls made without use of the debit/prepaid program and 60% of charge s for bo th local a nd long distanc e calls m ade usi ng the d ebit/pre paid pr ogram . 2 Pursuant to §§ 10-5 02 and 1 0-503(a)(2 ) of the Co rrectional Se rvices Article of the Maryland Code,3 the State s co mmission s are paid into the State Treasury to be used for an Inmate Welfare Fund (Fund), w ith each cor rectional fac ility having its own dedicated fund to prov ide g oods and serv ices that b enef it the general i nma te po pula tion of th at fa cility. 4 The State Treasu rer mus t hold se parately, and the Comptroller account for, each fund. § 10503(a)(3). Furthermore, each facility s fund is subject to an audit by the Office of Legislative 3 Section 10-502 provides: (a) Established. There is an inmate welfare fund in ea ch State c orre ction al fa cility. (b) Uses. A fund may be used only for goods and services that benefit the general inmate population as defined b y regulations tha t the Depa rtment [of Public Safety and Correctional Services] adopts. Section 10 -503(a)(2) p rovides, in pe rtinent part: (i) Each fund consists of: 1. profits derived from the sale of goods through the commissary operation and telephone and vending machine commissions; and 2. subject to subparagraph (ii) of this paragraph, money received from other sources. (ii) Mone y from the G eneral Fun d of the S ate may not b e transferred by budget amendment or otherwise to a fund. Unless otherwise provided or as co ntex t may d ictate to th e con trary, all statutory references are to sections within Maryland Code (1999), Correctional Services Article. 4 The Inmate Welfare Fund is used to pay for some inmate medical care, religious and educational services, family day activities, recreational activities, and other costs associated with indigent inmates, such as clothing and postage. 3 Audits, pursuant to § 10-503(a)(4). Under § 10-504, the Comptroller pays out money from each fund as au thorized in the approved State Budget for ea ch fiscal year. B. The Present Case Sandra Benson and Mary Ann Dean, Appellan ts, received an d accepted collect calls from inmate relatives during the periods 2 February 2001 through 9 February 2001 and 21 November 1998 through 6 April 2002, respectively, and paid the resulting bills calculated according to the rate structure outlined supra, including the State s commission. On 25 October 2001, Benson, purporting to act on behalf of herself and others similarly situated, sent a letter by certified ma il to the Treasurer, pursuant to the MTCA, complaining about the anti-competitive collect telephone call contract and fee mandated as a commission. She sought compensatory damages, punitive damages, and attorneys fees.5 When the relief Benson sought was not forthcoming immediately, she filed a Class Action Complaint on 26 November 2001 in the Circuit Court for Baltimore City. Several amended complaints followed, consummated by her Fifth Amended Class Action Complaint on 19 May 2003. She alleged that the commission remitted to the State was illegal under nine causes of action, as both direct causes of action and actions filed under the MTCA. The various theories of recovery were based on asserted violations of: the Maryland Declaration of Rights, Article 8 (separation of powers); Maryland Declaration of Rights, Article 14 5 Dean, on 28 May 2002, sent to the Treasurer a similar letter regarding her claims. 4 (Legislature s consent required to rate or levy an aid, charge, fee, tax or burthen); Maryland Antitrust Act; M aryland Con sumer Pro tection Ac t; Maryland Con stitution, Article III, § 32 (appropriations); Maryland Declaration of Rights, Article 24 (unlawful taking); unjust enrichme nt; common law action for money had and received; and, civil conspiracy. For each count, Benson sought prospective injunctive relief to enjoin the State from charging, billing, invoicing, and collecting the commission; an award for attorneys fees, litigation costs, and interest; and compensatory and punitive damages for herself and each class member. Dean filed her virtually identical Class Action Complaint on 12 June 2003 in the Circuit C ourt of Baltim ore City. On 24 July 2003, the State filed in each case an omnibus motion to dismiss for failure to state a claim upon which relief may be granted, and also asse rted that all claims were barred by the MT CA. Th e State appende d exhibits to its motion and, months later, filed an affidavit in further support of its contentions. The Circuit Court dismissed all of Benson s and Dean s claims in a single order entered on 25 J une 20 04, nearly a year after the S tate filed its mo tion to dismis s. As to Benson s tort-based claims, the court dismissed them for non-compliance with the requireme nts of the MTCA. The court found that the MTCA did not authorize class action suits. The court also rejected Appellants prayers for punitive damages as not permitted by the MTCA. In addition, the trial judge concluded that Benson brought her complaint prematurely because she filed it only one month after submitting her claim letter to the 5 Treasurer and without awaiting a reply. The court opined that, because she sought mon etary relief, Benson should have waited the sooner of either receiving the Treasurer s denial of relief or six mon ths from th e time of filin g her claim with the Treasurer. Thus, having resolved that Benson failed to receive a final denial from the Treasurer before she filed her comp laint, ma intenan ce of h er tort cla ims wa s preclu ded. Benson s non-tort claims under the Consumer Protection Act and the antitrust statu te also were dism issed. The c ourt dismisse d the Con sumer Pro tection Ac t claim beca use it concluded that the State was pro tected by sovereign immunity, the remittance of the telephone commission was not an unfair trade practice, and Appellants suffered no actual loss because they would have paid the sam e amoun ts to the private telephone companies even had no commission been remitted to the State . The court dismissed the antitrust claim on sovereign immunity grounds because the State was acting within its legal authority to require the remittance of the telephone commission from the private telephone companies, and because the court was not the appropriate body to decide whether the approve d telephon e call rates and commission were excessive. The court dismissed all of Dean s claims as well. The court specifically found that Dean failed to give the State timely notice of her claimed injuries, which began in 1999, because her letter to the Treasurer was n ot sent until 2003. Thus, D ean s tort claims were precluded for failure to comply with the MTCA s notice provisions. The court also dismissed all of Dean s claims because she failed to allege in her com plaint any facts 6 supporting her claimed injury, concluding that the appended ex hibits of her phone bills w ere insuff icient to e stablish loss. On 2 July 2004, Benson and Dean filed a joint Motion to Alter or Amend Judgment seeking to add sev eral allegations to their complaints, including that each of the plaintiffs suffered actual injury related to the matters complained of. Soon thereafter, Benson and Dean filed notices of appea l to the Cou rt of Specia l Appeals . They then file d a secon d postjudgment motion w ith the Circu it Court on 1 3 September 2004 seek ing to ame nd their complain ts to add a llegation s that the violatio ns we re contin uing. They argued that the cou rt failed to recognize that Benson s initial complaint so ught only injunctive relief and therefo re she complied with MTCA requirements. The Circuit Court denied the post-judgment motions. We issued a writ of certiorari before the Court of Special Appeals could decide the appea ls, Benson v. State, 386 Md. 180 , 872 A.2d 46 (2 005). II. Standard of Review We treat the motion granted in this case as a true mo tion to dismis s for failure to state a claim upon which relief may be granted because the trial court expressly limited its consideration to the factual allegations of the complaints and ignored the additional factual considerations tendered in the exhibits and affidavit submitted by the State in sup port of its motion to dism iss. See Md. Rule 2-322(c) (pro viding that if, in a motion to dismiss for failure to state a cause of action upon which relief may be granted, matters outside the 7 pleading are presen ted to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501, and all parties shall be given reasonable opportunity to present all material made pertinent to such a m otion by Rule 2-501 "). When reviewing the grant of a motion to dismiss for failure to state a claim upon which relief may be granted, we assume the truth of all well-pleaded, relevant, and material facts in the complaint and any reasonable inferences that can be draw n theref rom. Muthukumarana v. Montg omery C ounty, 370 Md. 447, 474, 805 A.2d 372, 388 (2002) (quoting Allied Invest. Corp. v. Jasen, 354 Md. 547, 555, 731 A.2d 957, 961 (1999)). Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, no netheless fa il to afford relief to the plaintiff. Jasen, 354 Md. at 555, 731 A.2d at 961. Therefore, on appeal, this court determines whether the trial court was legally correct in granting the motion to dismiss. We also must determine whether the Circuit Court abused its discretion in denying Benson s and De an s motio ns to alter or a mend the judg ment. Renbaum v. Custom Holding, Inc., 386 M d. 28, 42 -43, 87 1 A.2d 554, 56 3 (200 5). III. Articles 14 a nd 8 of the D eclaration o f Rights Appellants claim that the c ollection and remittance o f the telepho ne comm ission to the State violates Article 14 (no aid, tax, charge, fee or burthen shall be rated or levied 8 without consent of the Legislature) and Article 8 (separation of powers) of the Maryland Declaration of Rights. We begin by considering whether the MTCA applies to alleged violations of Article 14 and whether a private right of action is available for an alleged violation of Art icle 14. If a private right of action under Article 14 may be brought, we must determine whether a plaintiff may be awarded damages for its violation, if proven. Thereafter, we shall construe Articles 14 and 8 to determine whether the imposition of the telephone commission is illegal as pleaded. These questions have not been directly raised or decided previously in a reported Maryland case.6 A. Applicability of the Maryland Tort Claims Act The Circuit Court concluded that the MTCA s procedural requirements must be satisfied in order to bring suit on a constitutional tort claim, and found that Benson s and Dean s Article 14 claims were precluded for failure to comply with the MTCA. We hold that 6 There ex ist three Ma ryland cases w here it was argu ed specific ally that a tax or fee was levied without the consent of the L egislature in violation of Article 14. In none did the Court consider sp ecifically whe ther a private right of actio n would lie, yet implied that it might. In Ogrinz v. James, the Court succinctly dismissed the Article 14 claim on its merits on the basis that the Legislature in fact consented to the taxes in question. 309 Md. 381, 396, 524 A.2 d 77, 85 (1 987) (find ing that the General Assembly clearly has imposed the tax ). In White v. Pr ince Geo rge s Cou nty, the Court did not discuss the Article 14 claim at all. 282 Md. 641, 387 A.2d 260 (1978) (implying, without stating, that the plaintiff failed to raise a successful Article 14 claim regarding a tax on deeds of trust when plaintiff sued on behalf of himself and all others similarly situated). Nor did the court discuss the Article 14 claim in Goldsbourgh v. Postal Telegraph Co., 123 Md. 73 (1914) (concluding that the case presented did not require the Court to d ecide wh ether the Sta te has the po wer to charge rent paymen ts to a less ee). See infra Section (III)(D)(ii) (discussing Goldsbourgh). 9 the MTC A does n ot apply to allege d violations o f Article 14 of the Declaration of Rights; thus, the trial cou rt was mista ken on this point. In Lee v. C line, 384 Md. 245, 256, 863 A.2d 297, 304 (2004), this Court held that the MTCA applied to a constitutional tort claim flowing from an asserted search and seizure violation, and extended to state personnel qualified immunity for such torts if committed within the scope of employment and without malice. We do not extend, however, our reasoning in Lee v. Cline so far as to re quire that all co nstitutional tort cla ims must c omply with the requirem ents imposed by the MTCA. Rather, we hold that a claim for violation of Article 14 is not subject to the requirements of the MTCA b ecause a claim under Article 14 is not co mpen sable in mone tary dama ges, see infra Section III(B). B. Private Right of Action Under Article 14 A private ri ght o f act ion f or violati on of Ar ticle 14 m ay lie because it is a selfexecuting constitutional provision.7 Whether a const itutiona l provisi on is se lf-exec uting, so as to make i t enf orce able judicially, is an issue ad dressed by the U.S. Sup reme Co urt in Davis v. Burke, 179 U .S. 399, 21 S.Ct. 210, 45 L.Ed. 249 (1900). The Supreme Court set forth the elem ents and ch aracteristics of a self-exec uting cons titutional prov ision: 7 The Circ uit Court did not address whether a claimed cause of action for violation of Article 14 c ould be br ought as a private right o f action. Ra ther, the cou rt, after dismissing the Article 14 c laim for fa ilure to com ply with the requirements of the MTCA, also dismissed on the merits, implying that the court assumed that a private right of action under Article 14 could lie. 10 It supplies a sufficient rule by means of which the right given may be enjoyed and protected, o r the duty imposed may be enforced; and it is not selfexecuting when it merely indicates principles, without laying down rules by means of w hich thos e princip les m ay be given the force of law. . . it is selfexecu ting on ly so far as it is susce ptible of execu tion. Davis, 179 U.S. at 403 , 21 S.Ct. at 21 2, 45 L.Ed. at 2 51 (q uoting T hom as M cIntyre Coole y, A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union 99 (6th ed. 1890). When a provision is so complete, it may be enforc ed by the courts w ithout th e need of furth er legisla tive auth ority or dire ction. Id. We applied this analysis to a claim brought under Article 15 of the Declaration of Rights. In Leser v. Lo wenstein , 129 Md. 244, 250, 98 A. 712, 714 (1916), this Court found some of the provisions of Article 15 to be prohibitory and self-executing, and require no act of the Legisla ture to make them effective. One such clause prohibited the levy of a poll tax. Another was the provision declaring that paupers ought not be assessed for the support of governmen t. The Court also found two provisions not to be self-executing because legislation was required to give effect to the provisions: the provision declaring the method to be used to set future levies for taxes and the provision charging the General Assemb ly to set uniform rules providing for separate assessment of land and classifications as it deems proper . Leser, 129 Md. at 250, 98 A. at 714 (quoting Article 15 of the Declaration of Rights). This Co urt also has d etermined other cons titutional and s tatutory provision s to be self-executing. See e.g., Ca sey Deve lopmen t Corp. v. Mon tgomery County , 212 Md. 138, 150, 129 A.2d 63, 70 (1957) (finding a tax law se lf-executing ); Hammond v. Lancaster, 194 11 Md. 462, 476, 71 A.2d 474, 480 (1950) (finding Article XVI of the Maryland Constitution (referendum power re served to th e people o f Maryland ) self-execu ting); Harris v. State, 194 Md. 288, 295, 71 A.2d 36, 40 (1950) (finding Article 21 of the Maryland Declaration of Rights self-executing) overruled on other grounds, Stewart v. S tate, 282 Md. 557, 386 A.2d 1206 (1978). We conclude that Article 14 is self-executing. Article 14 o f the Dec laration of R ights provides that no aid, charge, tax, burthen or fees ought to be rated or levied, under any pretense, without the consent of the legislature. If action is taken in contravention of Article 14, then the action is voidable by a cou rt. No further legislative action is required to effectuate Article 14. Furthermore, the provision supp lies a sufficient rule by means of which the right to be free from aids, charge s, taxes, burde ns, and fee s levied w ithout the Legislature s consent may be enjoyed and protected. Courts may enforce Article 14 by declaring such charges invalid. Its provisions are not m erely a state ment o f princi ples. It is a directive cap able of ex ecution. A lso, our con clusion that its terms are self-exe cuting is in harmony with the scheme of the Declaration of Rights, particularly when read with Article 8 (separation o f powe rs) and A rticle 15 (desc ribing som e of the du ties of the Legislature regarding the levy of taxes). Therefore, Benson and Dean, all other things being equal, cou ld assert private claims under Article 14 of the Declaration of Rights. C. Private Remedies for Violations of Article 14 12 Having concluded that a private right action may lie based on an Article 14 violation, we must decide whether monetary damages may be awarded for its violation, if proven. The question becomes whether a common law action exists already to remedy the violation, or, if an actio n does not now exist, w hether o ne sho uld be ju dicially rec ognize d. The Court has employed this common law tort analysis for constitutional claims previously, finding a right to sue for damages, but has done so only when it concluded that the constitutional provision at issue conveyed an individual right for example, the right to be free from unreasonable searches and seizure s or the right to be free from the taking of private property without just compensation. Thus, in Widgeon v. Eastern Shore Hospital Center, 300 Md. 520, 479 A.2d 921 (1984), we held that a plaintiff could maintain an actio n for damages when alleging a violation of the Articles of the Declaration of Rights addressing searches and seizures and the deprivation of liberty, life, and p roperty becau se Marylan d courts historically have recognized, as an established doctrine, that where a statute estab lishes an ind ividual right, imposes a corresponding duty on the governm ent, and fails to provide an ex press statutory remedy, a traditional common law action will ordinarily lie. Widgeon, 300 Md. at 536, 479 A.2d at 929 (Citations omitted). In Widgeon, we concluded that Articles 24 and 26 w ere intende d to pre serve in dividu al liberty an d prop erty interes ts, respec tively. Id. In contrast to Articles 24 and 26, Article 14 does not secure or proclaim an individual right; rather, its terms address principles akin to those of federalism, separation of powers, and the government s authority to tax. Applying common law tort analysis to the claimed 13 Article 14 violation to determine whether an action for damages may lie for its violation, we conclude that it does no t. We also d ecline to create judicially a monetary damages remedy for its alleged violation. This kind of asserted constitutional violation is best corrected by declaratory or injunctive relief, not damages, because the roots of the Article 14 are n ot born of the common law action of trespass, like Articles 24 and 26. Although an Article 14 violation is a constitutio nal tort in the s ense that it is a violation of a co nstitutional du ty imposed upon government to refrain from levying aids, charges, taxes, burdens, or fees without the consent of the Legislature, it is not one of those individual rights for which a monetary damages remedy should be available.8 Had Appellants not waived for appellate consideration their Article 24 due process claim asserte d in the trial cou rt, perhaps damages might be available were we to conclude that they pleaded sufficiently a claim that the telephone commiss ion was illeg al.9 Be that as it may, we hold that a private right of action may lie for an alleged violation of Article 14; but only declaratory and injunctive relief are availab le to rem edy such a violatio n. 8 In that sense , every violation o f a provisio n of the C onstitution is a to rt because S tate government personne l are charge d with the d uty to uphold th e Constitutio n and com ply with its provisions. W e limit Widgeon to provisions granting or securing individual rights. 9 Our con clusion that a claim for damages under Article 24 might lie if a violation of Article 14 is found may not serve as the basis to amend Appellants complaints yet again for two reasons. First, Appellants abandoned their Article 24 claim by not raising it in their certiorari petition. Second, we find no violation of Article 14 upon which to base a due proces s claim. See infra Section III(D)(ii i). 14 D. Did Appellants Sufficiently Plead Violations of Article 14 and Article 8? We now ad dress wh ether the commission collected and paid to the State violates Articles 14 and/or 8. The answer naturally requires us to construe the language of the Articles. i. Relevant Principles of Constitutional Interpretation The analytical framework applied to interpret the Constitution and Declaration of Rights is quite decided and familiar. We declared in Johns Hopkins University v. Williams, that, while the principles of the Constitution are unchangeable, in interpreting the language by which the y are expresse d it will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could n ot fores ee. 199 Md. 382, 386, 86 A.2d 892, 894 (1952) (Internal quotations omitted) (Citations omitted). Thus, while we may not depart from the Constitution s plain language, we are not bound strictly to accept only the meaning of the langua ge at the time of adoptio n. Cohen v. Governor of Maryland, 255 Md. 5, 16-17, 255 A.2d 320, 325 (1976); Boyer v. Thurston, 247 Md . 279, 291-92, 231 A.2d 50, 57 (19 67); Buchho lz v. Hill, 178 Md. 280, 286 , 13 A.2d 3 48, 351 (1 940) ( So it has been s aid that a constitution is to be interpreted by the spirit which vivifies, and n ot be the letter which 15 killeth. ). In addition to the plain language of Article 14, we, for the purpose of determining the true meaning of the language used, may consider the mischief at which the provision was aimed, the remedy, the temper and spirit of the people at the time it was framed, the common usage well known to the people, [] the history of the growth or evolution of the particular provision under consideration . . . and to [the] long continued contemporaneous construction by officials charged with the administration of the gov ernme nt, and e speciall y by the Leg islature. Johns Hopkin s Univers ity, 199 Md. at 386, 86 A.2d at 894 (Internal quotation o mitted). Thus, we construe the Constitution s provisions to accomplish in our modern society the purposes for which they were adopted by the drafters. Norris v. Mayor and City Council of Baltimore, 172 M d. 667, 1 92 A. 5 31 (19 37). ii. Scope of Article 14 We shall hold that the telephone commiss ion in the present case is within the scope of Article 14 because it is a charge imposed by the State government. First, we analyze the plain lan guage of the A rticle. In this proce ss, we shall consult cred ible sources from bo th the time of adoption of Article 14 and our m odern era, including P ROCEEDINGS OF THE C ONVENTIONS OF THE P ROVINCE OF M ARYLAND H ELD AT THE C ITY OF A NNAPOLIS , IN 1774, 1775, & 1776 (1836); various laws enacted in 1776; and recent editions of B LACK S L AW D ICTIONARY and W EBSTER S C OLLEGIATE D ICTIONARY. See Harvey v. Ma rshall, __ Md. __, (2005) (No. 109, September Term, 2004) (filed 14 October 2005) (slip op. at 14) (discussing 16 some consideratio ns as to the u se of dictionaries, published a t both the time a statute is enacted and the pres ent time, to ascertain the meaning of statutory language). 10 Article 14 lists five types of payments made by citizens to their government that cannot be rated or levied without the consent of the General Assembly: That no aid, charge, tax, burthen or fees ought to be rated or levied, under any pretense, without the consent of the Leg islature. An aid is defined as an act of helping, the help given , and also, histo rically, a tribute paid by a vass al to his lo rd. W EBSTER S E LEVENTH N EW C OLLEGIATE D ICTIONARY 26 (2003). 11 A charg e is an exp ense or co st. B LACK S L AW D ICTIONARY 298 (8 ed. 1999); W EBSTER S D ICTIONARY at 208. The definition of charge has not changed since 1776 when the framers of the Maryland Declaration of Rights employed the word in adopted resolutions. See P ROCEEDINGS OF THE C ONVENTIONS at 244 (stating that the charge and expense of erecting and building two courthouses and prisons in two counties will be defrayed by the those counties and assessed with the public and county levy); P ROCEEDINGS OF THE C ONVENTIONS at 293 (resolving that the rivers Potowmack and Pocomoke ought to be considered as a common high-way, free for the peo ple of both [M aryland and Virginia], 10 Because there does not appe ar to have b een a form al or popu lar dictionary in accepted use in Maryland in the 1770's, the contemporaneous use of the pertinent language during the relevan t constitutional conventions and in the session laws enacted by the Legislature provide the best resources. 11 The word aid was not used in any other part of the 1776 version of the Declaration of Rights or Constitution, but it does appear in several instances in P ROCEEDINGS OF THE C ONVENTIONS, in which aid meant the act of help or help given. 17 without being subject to any duty, burthens or charge ). As the Resolution adopted at the Proceedings of the Conventions in 1776 demonstrates, a burthen meant the burden of a payment owed, such as a charge for use of a river. See P ROCEEDINGS OF THE C ONVENTIONS at 293. A burthen is now more commonly called a burden and is used as a general term referring to a duty, responsibility, encumbrance, or obligation imposed on a person or proper ty. B LACK S L AW D ICTIONARY at 208, W EBSTER S D ICTIONARY at 165. A tax is a ch arge, usually of money, imp osed ordin arily by a governm ental autho rity on persons or property for public purposes.12 B LACK S L AW D ICTIONARY at 1496; W EBSTER S D ICTIONARY at 1280 . A review of the Declaration of Rights and the Constitution reveals that the definition of tax has not changed since 1776. A fee is a charge for labor, services, or a privileg e. B LACK S L AW D ICTIONARY at 647; W EBSTER S D ICTIONARY at 459. This definitio n also h as not c hange d since 1776. See Chapter xxv, § 9, of Acts of 1779 (setting out a list of the fees to be charged for carrying out various judiciary duties and the rates of tobacco to be accepted as payment); Chapter xv, § 4 of the Acts of 1769 (providing that any fee or fees claimed to be due to the sheriff under color of office shall be explained to the person paying the fee a nd a receipt given upo n payment). 12 The State s imposition of a tax carries due process considerations: the tax must have a definite link between the state and the person, property, or transaction that it seeks to tax. Miller Brothers Company v. Maryland, 347 U .S. 340, 74 S.Ct. 535, 98 L.Ed. 744 (1954). In the present case, the telephone commission is related to a public purpose, providing services to the inmate population. No party to the present litigation has characterized the telephone commiss ion as a tax; h ence, we have no n eed to inquire into due process requirements on that basis. 18 These five kinds of payment, especially charge and fee, encompass a wide var iety of payments to the government. One shared sense of the words, howev er, is that they are all used in Article 14 to mean pa yments impo sed by a sove reign on its citizens. That the drafters chose to include a ll five terms in the provision tends to show that the drafters intended that the scope of Article 14 encomp ass virtually all payme nts impose d by the gove rnment. Add ition ally, the clause under any pretense modifies the clause: That no aid, charge, tax, burthen or fee ought to be rated or levied. We construe this language to mean that calling a true aid, charge, fee, tax, or burden by a different name (such as commission ) will not shield th e exac ted paym ent from the sco pe of A rticle 14 . The telephone commiss ion provid ed for in § 10-503 f its within these broad term s it is certainly a cost paid to the State by the telephone company and thus fits under the general term charge. The commission is also a fee from the point of view of the person accepting the inmate s collect, non-emergency telephone call because the recipient indirectly pays the commission. The State in the present case, citing Goldsbourgh v. Postal Te legraph C able Company, 123 Md. 73 (1914), argues that the telephone commission is not implicated by the terms of Article 1 4 becaus e it is paid as part of a voluntary commercial transaction and the commission is taken from charges collected by a third-party for telephone service provided at a State facility. This Court s decision in Goldsbourgh, however, does not support the State s argument because the Court did not hold that a commercial transaction involving the State as a party is exempt from Article 14. In Goldsbourgh, the State sought payments due 19 on a lease originally executed be tween the former p rivate own er of a bridg e (the State purchased all property and rights to the parcels containing the bridge) and a telegraph company runnin g teleph one line s across the adja cent lan d and b ridge. T he telegraph company argued that it could not be required to make payments to the State as the successor lessor under the lease because the Legislature had not specifically consented to the payments. The Court found that the lease had been purchased by the State with the authorization of the Legislature by way of a statute directing the acquisition of the bridge. The fact that the lease payments were created by a pre-existing contract between two private parties distinguishes Goldsbourgh from the present case. The teleph one com mission in the present case was born of § 10-503 and is a charge imposed by the State government. Thus, the State s argument fails. iii. Construction and Application of Article 14 As noted supra, Article 14 provides that no aid, charge, tax, burthen or fees ought to be rated or levied, under any pretense, without the consent of the Legislature. We now consid er the pla in mea ning of the term s: rated, le vied, an d cons ent. Rated , when used as a verb with regard to money, means to allot or to value. W EBSTER S D ICTIONARY at 1032. In laws passed in the 1770s, use of the verb rate was specifically tied to mon ey either fines , taxes, or fees paid to govern ment o fficials. See Chapte r xx of the Acts of 1773 (providing that the sheriff shall be fined by the co urt s 20 justices for certain conduct, a sum not exceeding three thousand pounds of tobacco, rating tobacco at ten shillings per hundred, to be applied towards defraying the charge of the said county ); Chapter xvii of the Acts of 1782 (providing that the appointed collector of certain specified taxes must record in a book the persons rated and things assessed, to call upon the county commissioners of the tax to kn ow the yearly va luation of p roperty within s aid town, and to r egulate the tax u pon ev ery hund red pou nds w orth of proper ty ). Levie d, used as a verb, mea ns to impo se or to collec t payment of money or p roperty by legal autho rity or to require by autho rity. W EBSTER S D ICTIONARY at 715. This definition appears to have rem ained con stant since the time A rticle 14 was ad opted in 1776. See P ROCEEDINGS OF THE C ONVENTIONS at 160 ( Resolved, That the committee forbear to levy the said fines u ntil the end o f the next session of convention, and to stay all further proceedings therein. ); P ROCEEDINGS OF THE C ONVENTIONS at 157 ( And, upon nonpayment thereof may, by warrant under their hands, empower any person they shall judge proper to levy the same, by distress and sale of the goods of the off ender. ); P ROCEEDINGS OF THE C ONVENTIONS at 256 ( [A]n act of assembly passed, directing the justices of Talbot county to levy on the inhabitants of that county forty-five pounds of tobacco per tax . . . . ). The most significant term in Article 14 is consent because it is an imperative directed to the Legislature. To consent is to volunta rily give assent, to ag ree, or to approv e. W EBSTER S D ICTIONARY at 265. Its mo dern mea ning is consistent with its 1776 meaning. See Chapter vii, § 9 of the Acts of 1777 (providing that a male under the age of 21 21 or a fem ale und er the ag e of 16 , not bef ore ma rried, shall not be married without the consent of the parent or guardian of every such person or else the minister be forced to pay 500 pounds current m oney); P ROCEEDINGS OF THE C ONVENTIONS at 299 (pro viding, in a draft of the Decla ration of R ights unde r considera tion and later adopted with amendments, that no soldier ought to be quartered in any house in time of peace without the consent of the owner, and in time of w ar in such manne r only as the legislature shall direct ). The plain meaning of the pertinent language therefore is that payments imposed by the State should not be allotted, valued, imposed, or collected without the authorization or approval of the Legislature. The struc ture of the s entenc e is impo rtant. The Framers did not express their will in the imperative: The Legislature shall rate and levy taxes and charges. Rather, the Legislature must consent to the rate or levy of payments to th e State. To re ad into the clause a requirement that the Legislature also must set the amount of all such payments in each instance is to depart from the Article s plain language and read into it an intent that is not ev ident. Our review of the available written records from the creation of Article 14 reveals no intention to impose a non-delegable duty upon the Legislature to se t the amount of eve ry government charge. Article 14 was part of the original Declaration of Rights, although it then was designated Article 10. Appellants cite notable h istorical texts an d cases in th eir Brief for the proposition that the Framers intended that the Legislature be required to set the amount of all aids, charges, taxes, burdens, and fees as a retaliation against the Proprietary 22 fee system in effect in Maryland before Independence. Having reviewed these texts and others, we conclude that, though they do provide context and illumination for our interpre tation of Article 1 4, they do not sup port A ppellan ts argum ent. The Proprietary structure enforced in Maryland while it was a colony of Grea t Britain allowed the proprietor and his agents to set fees and charges without the approval of the officials elected by the citizens of Maryland. It was the lack of consent by the people s legislative representatives that was denounced as the evil which the Framers of the Maryland Constitution sought to remedy. O ur construc tion of the m eaning of the Article is strengthened by a statement from the Constitutional Convention in 1776 that provided instructions for the deputies rep resenting M aryland in Congress. If reconciliation could be reached with the British crown, then the representatives should tak[e] care to secure the colonies against the exercise of the right assumed by parliament to tax them, and to alter and change their charters, constitutions, and internal polity, without their consent, powers incompatible with the essential securities of the lives, liberties, and properties of the colonists. Proceedings of the Conventions at 83. In 177 5, the conv ention reso lved unan imously that, because of the long premeditated, and [then] avowed design of the British governm ent, to raise a reven ue from th e property of the colo nists, withou t their consen t, on the gift, gra nt, and disposition of the commons of Great Britain and other reasons, it was firmly persuaded that it [was] necessary and justifiable to repel force by force, [so did] approve of the opposition by arms, to the British troops employ[ed]. PROCEEDINGS OF THE C ONVENTIONS 23 at 17-18 . Article 14 codifies the catch-phrase of the Revolution: No taxation without represe ntation. Article 14 has undergone only one arguably substantive change since its adop tion in the Constitution of 1776. At the Constitutional Convention of 1850-1851, the provision was amended from: That no aid, charge, tax, burthen, fee, or fees, ought to be set, rated or levied, under any pretense, without the consent of the legislature to That no aid, charge, tax, burthen or fees, ought to be rated or levied, under any pretense, without the consent of the Legislature, removing the word set from the provision. The records of the proceedings, committee reports, and debates of the 1850-1851 Convention offer little assistance in understa nding w hy the chang e in language occurred. Apparently, the original version of Article 14 (then numbered Article 12) immediately preceding the Convention was passed out of committee without change. During the Convention proceedings, Article 14 was read aloud and no amen dments w ere offere d by the Con vention mem bers. Evidently, no debate took place. At the publication of the post-convention version of the Declaration of Rights and C onstitutio n, how ever, the word set dis appea red. With the remova l of the word set, however, it becam e even plainer that the Le gislature is not required to set expressly the amou nt of ea ch aid, c harge, ta x, burd en, or fe e impo sed by the State. Having construed Article 14 to include within its scope the telephone commission here and having found that Article 14 requires the Legislature s consent before a governmental charge or fee may be rated or levied by a bo dy to which the power of setting 24 the amount of the charge or fee has been delegated, we must determine whether the Legisla ture con sented to the tele phone comm ission at issue in t his case . The Legislature enacted §§ 10-502 and 10-503, which set up the Inmate Welfare Fund and financed it by the profits derived from the sale o f goods through the commissary operation and telephone an d vending ma chine comm issions. § 10-503(a)(2)(i)(1). We think this is clear evidence of the Legislature s consent to the imposition of a telephone commission. We hold , therefore, tha t the telephon e comm ission charg e does no t violate Article 14 of the Maryland Declaration of Rights.13 iv. Application of Article 8 Appellan ts argue that the telephone commission concomitantly violates separation of powers principles. Article 8 of the Declaration of Rights provides that the Legislative, Executive, and Judicial powe rs of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other. In 1922, the Cou rt held that there are certain powers only the Legislative body possesses and which it may not delegate. One of these non- 13 Appellants seem to concede in their respective, last amended Complaints that the Legislature consented to the setting of the charge by the Executive agency, asserting as part of its Article 8 argument that to do so was an impermissible delegation of power, stating that [t]he State executive s unilateral determination . . . of the [commission] . . . is an impermiss ible delegation of the legislative function and that the [g]eneral authorization of such an imposition, while allowing the executive branch to set the specific amount, violates the express separation of powers provisions of the Maryland Constitution. 25 delegable powers is to enact legislation. In Brawner v. Supervisors, 141 Md. 586, 601 (1922), we examined a statute that was to be submitted to qualified voters in the State general election of 1922. The statute proposed to afford compensation to persons who served in active duty during World War II. The enactment provided that it must be accepted by the voters of Marylan d by refe rendum in orde r to beco me eff ective. Brawner, 141 Md. at 592. We held the en actment u nconstitution al as an unla wful dele gation in contravention of separation of powers princ iples. We based ou r conclusion on the text of Article III, §§ 1 (Legislature shall consist of two branc hes), 27 (bills originate in either House of the General Assembly, three readings required), 28 (majority required for passage of bill or resolution, vote shall be reco rded), 29 (style an d subject-m atter of law s), and 30 (p resentment to Governor of bills passed) and A rticle II, § 17 (Governor to approve bill by signature or reject it by return w ith objec tions no ted) of t he M aryland C onstitutio n. These prov isions of the Constitution, we con cluded, co nfer upo n the Gen eral Assem bly of Maryland the exclusive power of making laws in that State because the provisions definitely and inevitably place the responsibility for the ena ctment of such law s upon ea ch branch of the Ge neral Asse mbly and upon the Executive [with veto powers]. Brawner, 141 Md. at 601.14 14 Our reasoning was based on two ground s: one, that the people of Maryland, having delegated to the Legislature of Maryland the power o f making its laws, that bo dy could not le gally or validly redelgate the power and the authority thus confer red upon it to the peop le themselves; and two, that the people of the State, from whom the L egislature (continued...) 26 Our construction of Articles 14 and 8 is consistent with Brawner because we do not here hold that the Legislature may delegate the power to enact laws.15 The Legislature must authorize the imposition of government charges for such charges to be valid. The Legislature, however, may choose to delegate the discreet power of setting the amount of government charges so approved to an Executive Branch agency or other governmental body without violating the separation of po wers explicitly provided by the Constitution because the setting of fees and taxes is a delegable power. We have so held in Burgess v. Pue, 2 Gill 11 (1844) and Baltimor e v. State, 15 M d. 376 ( 1860) . See also State v. Sm ith, 305 Md. 489, 510-11, 505A.2d 511, 522 (1986) (citing Baltimore v. State with approval and stating that the bran ches of state go vernm ent are s eparate , but not comp letely so). (...continued) itself derives its powers, having prescribed in the Constitution of the State the manner in which its laws shall be enacted, it is not competent for the Legislature to prescribe any other or different way in which its laws may be enacte d. Brawner, 141 M d. at 595. Th us we op ined, if the Legisla ture canno t delegate to the people the law making power which the people delegated to them, then it cannot pass a valid act which can only become a law in the event that the people of the State approve it. Brawner, 141 M d. at 599 . 15 Like the analytical approach in Brawner, we look to the text of the Constitution to determine whether a power granted to the Legislature is delegable. 27 In Burgess v. Pue, the legislative enactment at issue provided that a primary school tax be determined and set by the inhabitants of the school district. 16 The Court held valid the Legislature s delegation of these powers to the people paying the tax, stating that there is nothing in the Constitution pro hibitory of the delegation of the power of taxation, in the mode adopted, to effect the attainment of it; we may say that grants of similar powers to oth er bodies, for political purposes, have been coeval with the Constitution itself, and that no serious doubts have ever been ente rtain ed of the ir validity. Id.17 Again, in Baltimor e v. State, the Court upheld a statu te de lega ting the p owe r to le vy a tax, but this time to an Executive Branch body. The law at issue created a Police Commission authority in Ba ltimore City, auth orized it to govern the City s police force, set its own bu dget, and req uired th e City to lev y taxes to f und the Com mission s budg et. The 16 The enactment also provided that the inhabitants elect the tax collector of the tax. Because the tax collector was not so elected, the Court found that the putative collector lacked any legal authority to act. Therefore, the replevin action instituted by the plaintiff properly was susta ined by the low er court. It wa s necessary, no netheless, fo r the Cour t to review the lega lity of the e nactm ent at issu e. 17 Some confusion apparently exists as a result of the Court s decision in State v. Mayhew, 2 Gill 487 (1845), which found th at the Gen eral Assem bly successfully levied a tax when [t]he assessment of the stock having been made, and the rate of taxation prescribed, and the obligation for its payment being imposed on the bank officer; everything has been done by the Legislature, which is requisite for it to do, to render the tax available to the State. Mayhew, 2 Gill at 497-98 (Emphasis added). Appellants argue in their Brief in the present case that Mayhew stands for th e propositio n that the Le gislature is obligated to set the rate or amount of ea ch revenue me asure. We disag ree. In his op inion for the Court in Mayhew, Judge Dorsey concluded that the Legisla ture could delegate the power to levy taxes to the le vy courts or county commissioners, both of which were representatives of the Judiciary and E xecutiv e branc hes of govern ment, re spectiv ely. Id. Neve rtheless , Mayhew is inconsisten t with Burgess v. Pue, decided one year before Mayhew, and Baltimor e v. State, decided in 1860. No opinion after Mayhew seems to require that the L egislature prescribe the rate of taxation spec ifica lly. Accordingly, the somewhat anomalous reasoning in Mayhew has been limited to its facts. 28 City, like Appe llants in the present case, argued tha t the law violated separation o f powers principles because the Legislature delegated its authority to set fees and taxes. The Court concluded that Article 8 is not to be interpreted as enjoining a complete separation between these several departments, based upon evidence of contemporaneous construction, and acquiescence by the people, and the various departments of the government. Baltimore v. State, 15 Md. at 457-58 (citing Burgess). Furthermore, the Court observed that [t]he power to levy taxes is a sovereign power, and unless committed to some portion of th e peo ple, m ay alw ays be exe rcised b y the Leg islature. It is not to be considered as parted with by mere construction, and we have not been referred to a ny portion of th e Constitutio n which divests it. *** Under the old system of levy courts, and tax commissioners, when appointed by the executive, it was never said that they had not power to make assessme nts and levy taxes. They were not elected by the people, nor accounta ble to them. They were appointed, under legislative authority, by the executive, and the Sta te exercised its supreme power o f taxing the people through their age ncy. So here, the State chooses to substitute Commissioners in the place of the city authorities for the purpose of levying this tax, and we see no suffic ient rea son for denou ncing th e law o n that a ccoun t. That such a power may be delegated, see Burgess v. Pue, 2 Gill 11. Baltimore v. State, 15 Md. at 467-68 (Emphasis add ed). Thus, the Court held that the power to levy the specific amount of the tax was delegable. Many years later, in Christ v. Department of Natural Resources, 335 Md. 427, 444-45, 644 A.2d 34, 42 (1994), we stated that clearly the Legislature cannot delegate a function which the Constitution expressly and unqualifie dly vests in the General Assembly itself, such as the power to impeach, enact statutes, or propose constitutional amendments. We failed then to include in the list of non- 29 delegable powers the pow er to set the amount of government charges. The omission was intentional. Furthermore, this Court repeatedly has noted that Article 8 of the Maryland Declaration of Rights does not impose a complete separation between the branches of governm ent. Christ, 335 Md. at 441, 644 A.2d at 40 (Internal quotations omitted) (citing Judy v. Schaefer, 331 Md. 239, 261, 627 A.2d 1039, 1050 (1993); Dep t of Transp. v. Armacost, 311 Md. 64, 81, 532 A .2d 1056 , 1064 (19 87); Dep t of Natural Res. v. Linchester Sand & Gravel Corp., 274 M d. 211, 2 20, 334 A.2d 5 14, 521 (1975 )). The delegation by the Legislature of legislative powers to Executive Branch agencies does not b y itself usually violate Article 8 if guidelines or safeguards, sufficient under the circum stances, are contained in the pertinent statute or statutes. Id. (Citations omitted). Guidelines, how ever, are not required uniform ly by the Constitution in all cases. The Court has relaxed the necessity for the same many times in light of the co mplexity of m odern co nditions w ith which government must deal. Id. (citing Pressman v. Barnes, 209 Md. 544, 555, 121 A.2d 816, 82 2 (195 6)). In Lussier v. Maryland Racing Commission, for example, we observed that when the Legislature grants broa d powe r to an Exe cutive Bra nch agen cy to promulg ate regulations in a given area , the agency s re gulations are valid unless they contradict the Legislature s express language or purpose in enacting the statute. 343 Md. 681, 688, 684 A.2d 804, 807 (1996). We have repeatedly rejected the argument . . . that the Legislature [is] required 30 expressly or explicitly to authorize the particular regulatory action. Id. Therefore we ask: does §10-503, which authorizes the imposition of the telephone commission, and § 3-702 of the State Finance and Procurement Article of the Maryland Cod e, which grants broad powers to regulate telephone services for State go vernmen t, properly delegate the power to set the amount of the telephone commission to the Department of Budget and Management (DBM )? 18 We conclude that the Legislature delegated that power properly because § 10-503 created a commission but did not set an amount and § 3-702 of the State Finance and Procurement Article of th e Maryland Code g ranted broa d authority to personnel of the DBM to procure telephone services for State government. Also, the existence of the telephone commission and its rates are consistent with the Legisla ture s intent to raise revenue to financ e the Inm ate We lfare Fu nd. 18 Maryland Cod e (1985, Repl. Vo l. 2001), State Finance and Procu remen t Article , § 3-702 pro vides, in pertin ent part: (a) In general. The D epartmen t [of Bud get and M anagem ent] shall: (1) coordinate the development, procurement, management and operation of telecomm unication e quipmen t, systems, and ser vices by State g overnm ent; (2) acquire and manage common u ser telecommunication equipment, systems, or services and charge units of State government for their propo rtionate share of the costs of installation, maintenance, and operation of the common user telecommunication equipment, systems, or services; *** (5) advise units of State government about planning, acquisition, and operation of telecommunication equipment, systems, or services. Section 3-701 of the State Finance and Procurement Article provides that the definition of telecommunication is the transmission of information, images, pictures, voice or data by radio, v ideo or other ele ctronic o r impuls e mean s. 31 We recognize that administrative agencies have become essential to the State s operation. Though ad ministrative agencies are essential, the C ourt is bound to ensure that those agencies act within the confines of their delegated powers. Here, we conclude that the DBM acted within its delegated po wer. We there fore hold that the Leg islature validly dele gated the p ower to set the rate of the telephone commission by its broad grant of authority to the DBM to regulate the operation of telephone systems in the State s correctional facilities and by the creation of the Inmate Welfare Fund to be funded by a commission to be charged on non-emergency, collect telephone calls placed by inmates. Because the power to set fees and charges may be delegated to administrative agencies, § 10-503 does not violate Article 8 of the Declaration of Rig hts. We conclude also that the absence in § 10-503 of direction for fixing the amount of the telephone commission does not violate separation of po wers principles becau se there exists a legisla tive che ck on th e Exec utive ag ency-esta blished fee sch edule. The Legislature is aware of the fee schedule and may, if it chooses, change it at anytime.19 19 The Legislature annually approves appropriations of money from the Fund. In so doing, it reviews the total amount raised by the commissary operation and telephone and vending mach ine com mission s. In 2001, the Legislature demanded a study and report on the telephone commissions at issue. In 2002, the Legislature failed to enact a b ill that would have prohibited the taking of commissions on inmate collect phone calls. House Bill 8392002 (reported unfavorably by the House Commerce and Government Matters Committee on 20 Ma rch 2002 ). The teleph one com mission is negotiated between the private telephone companies and the Depa rtment of Budg et and Mana gement and m ust be approved, after a (continued...) 32 IV. Consumer Protection Act Appellan ts asserted in their complaints that the telephone commission violates the Maryland Consumer Protection Act (CPA), codified as Maryland Code (1975, 2005 Repl. Vol.), Commercial Law Article, Title 13. We thus are required to decide whether the CPA govern s the Sta te s con duct he re. Whether the CPA governs the State s conduct is a matter of statutory interpretation and a matter of first impression for the Co urt. 20 The primary canon of statutory interpretation (...continued) public hearing, by of the Board of Public Works. 20 No repo rted Mar yland appellate opinion has determined whether the CPA applies to the activities of the State. In Stern v. Board o f Regents , 380 Md. 691, 846 A.2d 996 (2004), the plaintiff stu dents of v arious cam puses of th e Univer sity of Maryland sued to enjoin the Board of Regents from implementing a mid-year tuition increase. Plaintiffs asserted, among o ther theories, a CPA c omplaint. Stern, 380 Md. at 694, 846 A.2d at 998. At the 15 April 2003 motions hearing, the Circuit Court for Baltimore City granted the Regents motion for summary judgment on the CPA count. Af ter reviewin g the CP A, its legislative history, and relevant case law, the court found no indicia supporting the contention that the CPA applied to th e State, pointin g out that th ere s no ref erence w hatsoever as to whether it is to be applied to institutions . . . such as the Board of Regents here. Reporter s Transcript at 91-92. T he Circuit C ourt recited th e general ru le that it is well established that statutory provisions wh ich are written in such general language, that they are reasonably susceptible to being construed as applicable to both the government and to private parties, are subject to a rule of construction which exempts the government from their operation in the absence of other particular indicia supporting a contrary result in particular instanc es. Id. at 91 . On appeal, this q uestion w as no t adv ance d and, ac cord ingly, was not decided by (continued...) 33 is to ascer tain and effect uate the legislatu re s inten t. Comptroller of the Treasury v. Citicorp Int l Communications, Inc., __Md. __ (20 05) (No. 147, September Term, 2004) (filed 4 October 2005) (slip o p. at 6); Rockw ood Ca sualty Ins. Co. v. Uninsured Employers Fund, 385 Md. 99, 108, 867 A.2d 1026, 1031 (2005). We look first to the plain meaning of the language chosen by the Le gislature . If the words of the statute are plain and unambiguous, then the Court will give effect to the statute as written and will refrain from adding or deleting language to reflect an inten t not evid enced in that lan guage . Moore v. Miley, 372 Md. 663, 677, 814 A.2d 557, 566 (2003). Hence, we examine the CP A s langu age to determine whether the Legislature intended for the CPA to apply to the activities of the State. Appellan ts argue that the CPA applies to the State s con duct beca use the CP A broad ly applies to all sales of services primarily for personal, household, or family purposes, and thus includes the colle ct call tele phone charge s accep ted by A ppellan ts. This argument f ails because, while the CPA applies broadly to the kinds of sales it governs, the statute also describ es the ac tors to w hom it a pplies a nd the S tate is no t include d in that d escriptio n. The State conte nds that the le gal principle a pplied in Lomax v. Comptroller, 323 Md. 419, 59 3 A.2d 1099 ( 1991) , applies to our a nalysis of the CP A. We ag ree. In Lomax, this Court applied the general principle that, when construing a statute whose language is written in general term s that are reasonably susceptible to being construed as applicable to the (...continued) this Court. 34 conduct of both governmental and private parties, the rule of construction to be applied is to exclude the government from the statute s operation unless the Legislature provides particular indication in th e languag e that it intended to include the State in i ts swee p. Lomax, 323 Md. at 421-22, 593 A.2d at 1100; see also Glascoc k v. Baltimo re Coun ty, 321 Md. 118, 121, 581 A.2d 822, 824 (1990) (holding that the Legislature did not intend the State to be bound by local zoning regulations when constructing a communications tower because the Legislature neither named the State nor manifested an intention that it be bound by the provisions of the enabling act wh ich granted zoning au thority to the City ); City of Baltimore v. State, 281 Md. 217, 223, 378 A.2d 1326, 1330 (1977) (holding that, because no clear implication could be derived from the language of the statute that the State should be bound by the local zoning ordinances, the State was not boun d); Harden v. Mass Transit Admin., 277 Md. 399, 413, 354 A.2d 817, 824 (1976) (holding that the Mass Transit Administration (MTA) was not obligated to conform to the personal injury protection insurance coverage requireme nts imposed by statute because there was no manifest intention demonstrated on the part of the General Assembly to include MTA within the no fault insurance provisions and that if it had intended to include MTA within those provisions it would have made a specific provision to that effect ); State v. Milburn, 9 Gill. 105 (185 0) (holding that the State was not obligated to conform to the law requiring that the paper instrumen t of a state investment bond bear a tax stamp in order to be enforceable, where the state investment bond 35 was to be transferred by an individual to the State as payment for an o bligation, because there was no indication that the Legislature intended for the requirement to apply in such a case). 21 We apply this principle to the CPA. The statute does not decla re explicitly that it applies to the S tate. It lays out, however, a detailed regulatory scheme, listing prohibited practices, the covered actors in those practices, and the mechanisms for enforcement of the statute. Thus, f or exam ple, a person may not engage in any unfair or deceptive trade practice in the sale, lease, rental, loan, or bailment of any consumer goods, consumer realt y, or consumer services or the offer of such. § 13- 303. A person is defined as including an individ ual, corporation, business trust, estate, trust, partnership, association, 21 In City of Annap olis v. Anne Arunde l County , 271 Md. 265, 316 A.2d 807 (1974), the Court held that the historic landmark preservation statute enacted by Anne Arundel County governed the City of Annapolis, giving to the C ounty the authority to deny the City s request for a de molition order o f a histo ric build ing. Justifying this result, the Court discerned a n implied leg islative intent ind icated by the pu rpose for th e law: the historically or architecturally valuable building is just as much lost by destruction by a public body as it wo uld be by a priv ate owner . . . The General Assemb ly could well conclude that, to accomplish historic and architectural preservation , the jurisdiction o f the Com mission sh ould extend to all owners be they private persons or governmental agencies. City of Annapolis, 271 Md. at 291, 3 16 A.2 d at 821. We observe that the conclusion and reasoning of City of Annapolis appears to be an anomaly, and, though not one disavowed expressly by the Court, is n o longer fo llowed. T he subseq uent cases on point (Lomax, Glascock, Nationwide, City of Baltimore, and Harden) have painted City of An napolis into a tight jurisprudential corner. We ap ply here the rule observed in the subsequent cases, not only to be cons istent with the greater precedent, but also because the rule is based upon a reading of the s tatute s la nguag e to disc ern the L egislatu re s inten t. 36 two or more persons ha ving a joint or comm on interest, or any other legal or comm ercial entity. § 1 3-101 (h). An unfa ir or dec eptive tr ade pra ctice, in cludes but is no t limited to , any [f]alse, falsely disparaging or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading consum ers, certain representations concerning goods, and the [f ]ailure to state a material fac t if the failure deceives or tends to deceive. §13-301 (the section also contains a detailed list of practices that constitute an unfair or deceptive trade practice). Any practice prohibited by the Act is a violation, whether any consumer was in fact misled, deceived, or damaged as a result of the practice. § 13-302. Damages are considered in the remedy and penalty p hases o f enfo rceme nt. § 13- 408(a) . The CPA exe mpts from its application ce rtain professional services by licenced professionals, a public service company, to the extent that the company s services and operations are regulated by the Public Service Commission, and television, radio, and print media who pu blish a third-p arty advertisem ent withou t knowled ge that the advertisement violates the CPA. § 13-104. The statutory scheme establishes the Division of Consumer Protection in the Office of the State A ttorney Gene ral, sets forth its po wer and duties, gives it rule-making and civil penalty-setting powers, p rovides it the ability to issue cease and desist orders based on findings made after a public hearing, allows it to recover the costs accru ed in action s that it 37 institutes, and permits it to hold administrative hearings and request criminal penalties for violations of the CPA. §§ 13-201, 13-204, 13-205, 13-403, 13-405, 13-409, 13-410, 13-411. In addition to actions brought by the Consumer Protection Division, the Act authorizes any person to file a private action to recover for injury or loss sustained by him as the re sult of a practice prohibited by this title, and, if that person is successful, he or she may seek recovery of re asonable attorney fees f or his or her a ttorney s efforts . § 13-408 (a)-(b). It is under this Section of the CPA that Appellants brought their claims. Throughout the CPA, the State and its agencies serve multi-faceted roles as investigator, enforcement officer, and quasi-judicial adjudicator holding hearings and setting civil penalties. The Legislature did not contemplate, apparently, the State as a person within the coverage of the proscribed activities depicted in the CPA. We find no manifest intent in the language of the statute that the State s entrepreneurial revenue-raising activities were to be regu lated by th e CPA . We hold, therefore, that the CPA do es not regulate the State s conduct in the present case. To hold o therwise w ould be to construe the CPA to reflect an in tent not evid enced in its language and give the law a strained construction. Because we find that the CPA does not regulate the State s co nduct, it is unnecessary to decide whether sovereign immunity pro tects the State from liability for a violation of the CPA. V. The Common Law Actions of Unjust Enrichment and Money Had and Received 38 We next decid e whethe r the Circuit Court correctly dismiss ed the com mon law counts of unjust en richment a nd mon ey had and re ceived. W e shall affirm the court s jud gment. Appellan ts argue that, because the telephone commission is illegal, retention of the benefits it conferred would be inequitable as unjust enrichment. A claim of unjust enrichme nt is established w hen: (1) the p laintiff conf ers a benef it upon the d efendan t; (2) the defendant knows or appreciates the benefit; and (3) the defendant s acceptance or retention of the ben efit under the c ircumstanc es is such tha t it would be inequitable to allow the defendant to retain the benefit without the paying of value in return. Caroline County v. Dashe ill, 358 Md. 83, 95 n.7, 747 A.2d 60 0, 607 n.7 (2000) (C itations omitted). Appellan ts failed to allege precisely why the collection of the telephone commission is an act of u njust enrichm ent, stating on ly that it would be inequitable, for reasons stated supra. We assume that Appellants are referring to their allegations of: violations of Articles 14 and 8, and the CPA. We held supra that the State violated neither Artic le 14 nor A rticle 8. Moreo ver, we he ld supra that the CPA does not apply to the State s conduct here. Thus, there is no wrongful con duct upon w hich Appellants m ay rely to support a claim for unjust enrichme nt. The C ircuit Court s dismissal of the unjust en richment c laim was c orrect. 22 Appellan ts contended that the facts establish the analogous cause of action under Maryland law for money had and received, citing Electro-Nucleonics, Inc. v. Washington 22 Appell ees argue that the unjust enrichment claim also must fail because the voluntary payments ru le is a valid defense. Becaus e of the sco pe of our holding, it is unneces sary to conside r that argum ent. 39 Suburban Sanitary Commission., 315 Md. 361, 554 A.2d 804 (1989), for the proposition that this Court reco gnized the ability to bring a common law action for money had and received in the context of a State constitutional violation. Our finding in Electro-Nucleonics, Inc., however, was n ot so ex pansiv e. Rather, we stated, the money had and receiv ed action co uld be broug ht in the c ontext o f an un constitu tional tak ing claim . Electro-Nucleonics, Inc., 315 Md. at 372, 554 A.2d at 809. Reliance on Electro-Nucleonics, Inc. is misplaced in the present po sture of this c ase whe re the Article 24 claim h as been ab andoned on appea l. The action for money had and received is a common count used to bring a restitution claim under the com mon la w wri t of assu mpsit. Ver Brycke v. Ver Brycke, 379 Md. 669, 698 n.13, 843 A .2d 758 , 775 n.1 3 (200 4). We have stated that this count lies whenever the defendant has obtained possession of money which, in equity and good conscience, he ought not to be allowed to retain. State, Use of Employment Sec. Bd. v. Rucker, 211 Md. 153, 126 A.2d 846 (1956) (quoting POE ON P LEADING , § 117 (Tif fany Edition) and citing Moses v. Macferlan, 2 Burr. 1005 (1760)). A money h ad and received count may lie where the defendant receives the money as a result of a mistake of law or fact and did not have a right to it. Because we concluded that the State s imposition of the telephone commission does not violate the Declaration of Rights or the CPA and does not c onfer an u njust benef it on the State, the actio n for money had an d rec eive d wa s dismiss ed prope rly. VI. Plaintiff s Post-Judgment Motions 40 Fina lly, we determ ine wheth er the Circu it Court erred in denying A ppellants postjudgment motions se eking to am end their co mplaints. T he applicab le standard o f review is whether the Circ uit Cou rt abuse d its disc retion. Renbaum v. Custom Holding, Inc., 386 Md. 28, 42- 43, 871 A.2d 5 54, 563 (2005 ). Rule 2-53 4 of the M aryland Rule s provides: In an action decided by the court, on motion o f any p arty fi led w ithin ten d ays after entry of judgment, the court may open the ju dgemen t to receive additional evidence, may amen d its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, m ay amend th e judgem ent, or may en ter a new ju dgment. The Circuit Court has broad discretion whether to grant motions to alter or amend filed within ten days of the entry of judgment. Its discretion is to be applied liberally so that a technic ality does n ot trium ph ove r justice. Bd. of Nursing v. Nechay, 347 M d. 396, 408, 701 A.2d 405, 411 (1997) (Citations omitted). We stated in Board of Nursing v. Nechay that whether the court entertained a reasonable doubt that justice had not been done is an appropriate basis for the exercise of that discretion. Id. (citing Henley v. Prince G eorge s County , 305 Md. 320, 328, 503 A.2d 1333, 1337 (19 86); J.B. Corp. v. Fowler, 258 Md. 432, 434-36, 265 A.2d 876, 877-78 (1970); Clarke Baridon v. Union Asbestos & Rubber Co., 218 Md. 480, 483 , 147 A.2d 221 , 222-23 (1958)). Rule 2-535(a) provides that, generally, [o]n motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action w as tried befo re the court, m ay take any action that it could have taken 41 under Rule 2-534. Rule 2-535(b) provides that [o]n m otion of an y party filed at any time, the court may ex ercise revisory power and control over the judgment in case of fraud, mistake , or irregu larity. Here, Appellan ts filed their first motion to a lter or amen d the judgm ent on 2 Ju ly 2004, seve n days after the Circuit Court entered its order on 25 June 2004 that their claims be dismissed for failure to state a claim upon which relief may be granted. Appellants filed their Second Motion to Alter/Amend the Judgement on 13 September 2004 more than 30 days after entry of the court s pertinent judgm ent. Th e court d enied b oth mo tions. Rule 2534 is not implicated by the second motion to alter or amend because that motion was not filed within ten days of the entry of judgment. With regard to Rule 2-535(a), which applies to the court s pow er to revise its jud gments generally, Appellants second motion was filed more than 30 da ys after the entry of judgmen t. Thus, Ru le 2-535(a) is not implicated. Because Appellants did not allege facts in their second motion that evince fraud, mistake, or irregularity, the second motion moreover is not one filed pursuant to Rule 2-535(b), which allows such a motion to be file d at any tim e. See also Pickett v. NOBA, 122 Md. App. 566, 573, 714 A.2 d 212, 2 15 (19 98), cert. denied, 351 Md. 663, 719 A.2d 1262 (1998) (concluding that a second motion to revise the judgment that did not claim fraud, mistake, or irregularity and filed more than thirty days after the entry of judgment, even though within thirty days after denial of the first motion, cannot be granted ). Thus, the trial court acted within its discretion in denying Appellants second motion. 42 The first motion to alter or amend advanced three proposed additional allegations to be added to Appellants already much-amended complaints: (1) that each plaintiff has suffered actual injury related to the m atters in the co mplaint; (2) d efendan ts engaged in antitrust activity and/or un lawfully exe rcised anti-co mpetitive po wer; and (3) defend ants engaged in a threatened and/or actual monopoly by their imposition of the telephone commission. We conclude that these additional allegations to alter or amend would not have changed the trial court s judgment. Therefore, the Circuit Court did not abuse its discretion in denying the f irst motion be cause the a llegations co ntained the rein did not s upply reaso nable d oubt th at justice had no t been d one b y the cou rt s judg ment. The first additional allegation, that Dean suffered actual injury, would not change the outcome of the case because, e ven had th e court con sidered the a llegation, it would have dismissed Dean s complaint nonetheless for the same reasons that it dismissed Benson s complaint. We know this to be so because the cou rt dismissed Benson s complaint, where it had be en prop erly allege d that sh e suffe red actu al injury. Benson s complain t was nea rly identica l to Dea n s com plaint. The second and third ne w allegations regarding A ppellants an titrust claims w ould also not change the outcome of the case because the new allegations would not impact the trial court s reasoning. The court concluded that the antitrust claims were barred by sovereign immunity, among other reasons. It therefore dismissed Appellants antitrust claims. Even had the court considered the second new, wholly conclusory allegation, that 43 defenda nts engaged in antitrust activity an d/or unlaw fully exercised anti-compe titive power, or the third new allegation, that defendants engaged in a threatened and/or actual mo nopoly by their imposition of the telephone commission, it nonetheless would have dismissed the claims b ased on sovere ign imm unity princ iples. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED; COSTS TO BE DIVIDED EQUALLY BY APPELLANTS. 44
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