The opinion
*191 Barnís, J.,
dissenting.
I dissent because, in my opinion, the majority has added a provision to the ordinance which is not there and was not intended by the legislative body to be included in the ordinance.
I will admit that I am attracted by the pious statements and high moral position appearing in the quotations from several cases cited in the majority opinion. The problem before us, however, is not one of morality or “divine justice,” as it were. The question presented is the mundane one of statutory interpretation.
As I see the problem, there is really nothing in the ordinance to construe. The language could hardly be clearer. The phrase “creditable service” is defined by the ordinance and the definition does not include any words suggesting that the phrase includes “faithful” service. If the County Council intended that creditable service should include the concept of faithful service, it could easily have used appropriate language to express this intention — as was done by the General Assembly in the Act of 1920, Chapter 164, providing for police pensions for Baltimore County, and in the Act of 1922, Chapter 290, providing for pensions for firemen in the County. These acts have been amended by the County Council from time to time after 1959, the last amendments appearing in Council Bill 40 1 , 1964. The County Council is not only charged with notice of these acts but amended them by its own action. The County Council had the responsibility of providing pensions under those acts. It cannot be concluded that the County Council intended to include the idea of faithful service in the general pension ordinance.
This exclusion undoubtedly produces the incongruous result described in the majority opinion. The County Council, however, sits quite frequently and if it wished to eliminate the incongruity, it could easily have done so by enacting an appropriate amendment to the general pension ordinance. This is a legislative function of the County Council. It is not a judicial function and, in my opinion, we should not, in effect, attempt by construction to amend the ordinance. We are vested with judicial powers only. We should leave the exercise of legislative power to the representatives of the people elected for that purpose.
*192 The doctrine of the separation of powers is not only a binding doctrine of constitutional law, but it is of vital practical importance. Legislation is adoped after public hearings, debate, compromise and a consideration of the practical operation of the proposed legislation. Upon enactment, legislation usually operates prospectively and not retroactively, unless retroactivity is specifically provided in the legislative act. Courts deal with the problems of individual litigants and do not have the facilities to reach an informed view on legislative problems.
In the present case, the County Council might conclude that the overriding public interest would be served by leaving the ordinance as it is or in providing for the requirement of faithful service with limitations, however, in regard to the proof necessary to establish unfaithful service and the time within which the question of alleged unfaithful service might be raised, or the extent of the forfeiture of pension rights. These policy considerations can well arise when one considers one of the likely purposes of the county pension system, i.e., to attract qualified persons to the county service, which is often in competition with private business for employees. A completely honest employee may not be attracted by a pension fund which subjects his security for his declining years to inquiry at any time, and without any apparent limitations or safeguards, to an administrative body of the county government. He may fear — a groundless fear no doubt — that the decision in regard to his pension might be reached for partisan or political reasons or that he might be the victim of inter-office quarrels or malice. He may prefer the peace and certainty of pension systems of private employers to a public pension system subject to these perils. These are matters for legislative consideration, for it may be that the public interest may be served better by an absolute system which permits a few unfaithful public servants to receive pensions, than to unsettle the operation of the system generally. There are similar considerations of public policy involved in the many safeguards which surround persons accused of crime (which not unfrequently permit a guilty person to escape just punishment) and in the statute of limitations applicable to certain alleged crimes so that the innocent may be protected and the general public may enjoy a respite from the *193 possibility of criminal sanction after the passage of a certain time. It is obvious that we have not — and should not — consider these matters of public policy, but should leave them where they should be — in the hands of the legislative body.
The view I have expressed is not original. In Spencer v. Bullock, 216 F. 2d 54 (D. C. Cir., 1954) a similar situation had arisen under the District of Columbia pension statute relating to policemen. As in the case before us, there was no provision requiring “faithful service.” The statute conferred the right to a member of the department to retire when he had reached the age of 55 and had served 25 years or more as a member of the department. The plaintiff (appellee in the Bullock case) was suspended because of a conspiracy indictment, but after the District Court directed his acquittal, was restored to duty. When he later applied for retirement, he had fulfilled the statutory requirements of age and duration of employment in the department. After making his election to retire and filing his application, he was ordered by the Chief of Police to explain the source of his income, which he failed to do. The Chief of Police suspended him and later the police trial board found, in addition to his failure to disclose the source of his income, that the applicant had failed to file required income tax returns for three years. The District Commission then dismissed the applicant from the police department, did not act directly on the application, but ordered the applicant’s contributions to the retirement fund be returned to him. The District Court issued a mandatory injunction requiring the applicant’s restoration to duty and the allowance to him of his retirement compensation. In affirming the District Court, Circuit Judge Edgerton, aptly stated:
“The plaintiff was in active service when he made his election. He was qualified as to age and length of service. The statute imposes no other qualifications. We cannot read it as authorizing the Commissioners to deprive the plaintiff of a pension by making, after he elected to retire, the charges on which they dismissed him.
*194 “As a matter of policy something may be said for, and against, § 4-508 [D. C. Code (1951)]. (1) It may be thought to promote the quality of the police force, since relatively certain pensions tend to make a relatively attractive job. * * * (2) On the other hand, it may be thought that policemen are more likely to behave well if they can always be denied a pension for behaving ill. The plaintiff appears to have behaved ill. Though Congress seems to have given weight to the first of these conflicting considerations of policy, the Corporation Counsel seems to recognize only the second, for he says ‘The morale and efficiency of the Police Department * * * would be seriously affected by an affirmance of the decision of the lower court in this case.’ On balance, morale and efficiency are perhaps as likely to be affected favorably as unfavorably. However that may he, we camot take away rights that Congress gave. (Emphasis supplied). (216 E. 2d at 55-56).
Later, in 1961, the United States District Court for the District of Columbia in Daigle v. McLaughlin, 193 F. Supp. 902 , considered the pension statute in regard to firemen in the District of Columbia. In Daigle , the plaintiff was convicted and sentenced in 1957 for an embezzlement which occurred in 1956. He was given a three-year suspended sentence. He had been suspended from employment on the day after his indictment in 1956. In 1958 the plaintiff, having the requisite age and time of employment, elected to retire. The trial board met in 1959, and decided to dismiss the plaintiff. This action was affirmed by the District Commissioners. The District Court required that the pension be paid the plaintiff, and stated in its opinon:
“But more important for the Court in thus construing the statute is the absence of any indication that in passing it and establishing eligibility for pensions, Congress meant to distinguish between those who elect to retire before being suspended and later dismissed, as did the plaintiff Bullock, and those whose suspension (but not dimissal) precedes such election.
*195 “Nor, in the light of the Bullock case, can the Court accept the contention of the Commissioners’ counsel that Congress meant to make the District of Columbia pension roll a ‘roll of honor.’ Rather, as the Court of Appeals indicated in Bullock, the pension system is instituted as a means of attracting qualified men to the police and fire services, a goal which would be impaired if ‘the Commissioners may always deny a man a pension if they conclude he is unworthy of one.’
“Especially is the Court reluctant to take the essentially legislative step of interpreting ‘member’ as ‘member of a roll of honor’ when it is only four years since Congress extensively revised this statute, a revision which occurred, it will be noted, after the Bullock decision. Congress and the District Commissioners knew that the exact question here at issue was left open in Bullock; they also should have recognized that to decide it against an applicant would be contrary to the spirit of that decision. It would have been an easy matter for Congress to have said: no pensions for those dismissed for misconduct from these public agencies.
“Thus, in the face of Court of Appeals’ precedent and Congressional silence, this Court declines to engage in a doubtful exercise in statutory construction to reorient this pension system into an ancillary disciplinary vehicle from a device for attracting men to the police and fire departments by assuring them security in old age.” ( 193 F. Supp. at 903-04 ).
See also State, ex rel. Kirby v. Board of Fire Comm’rs of Hartford, 129 Conn. 419 , 29 A. 2d 452 (1942).
Many of the older cases cited by the majority are grounded,, in part, on the concept that a pension to public employees is a mere gratuity, representing the graciousness of the Sovereign to its servants. More modern ideas in regard to pensions consider them as part of the earnings of an employee, especially when the employees contribute to the pension from their earnings, as is the situation in the present case. The newer concepts are more persuasive to me.
*196 In the case at bar, it is clear that the appellee can never be convicted and suffer criminal sanctions in view of the decision of this Court in State v. Comes, 237 Md. 271 , 206 A. 2d 124 (1965) for the matters with which he is basically charged before the County Administrative Officer. His situation is by no means as aggravated as was that of the fireman in Daigle who had been indicted, convicted and sentenced for embezzlement.
Our predecessors warned us against doing what, in my opinion, the majority has done in the present case, i.e., added the word “faithful” to the definition of creditable service. In Rogan v. B. & O. R. R. Co., 188 Md. 44 , 52 A. 2d 261 (1947), Judge Delaplaine, for the Court, in reversing the Chancellor, stated:
“In the instant case the chancellor undertook to write into the Act, after the words ‘gross receipts within the State,’ the words ‘to be computed by the line-mile method of apportionment.’ Interpolation of words, to make a statute include matters which the Legislature did not expressly include, invades the function vested solely in the Legislature, however plausible may be the conjecture that those matters were within the legislative purview.
“Even though a certain provision, which has been omitted from a statute, appears to be within the obvious purpose or plan of the statute, and to have been omitted merely by inadvertence, nevertheless the court is not at liberty to add to the language of the law; and the court must hold that the Legislature intended to omit the provision, however improbable that may appear in connection with the general policy of the statute. Scaggs v. Baltimore & Washington R. Co., 10 Md. 268, 277 . When there is nothing in the context of a statute to attach a different meaning to the words so as to be capable of expressly embracing the case before the court, the court cannot extend the statute to that case, unless it falls so clearly within the reasons of the enactment as to warrant the assumption that it was not specifically enumerated among those described by the Legislature, only because it may have *197 been deemed unnecessary to do so. If the case is omitted in the statute because not foreseen or contemplated, it is a casus omissus, and the Court, having no legislative power, cannot supply the defects of the enactment. Even if a statute is incomplete, so that it cannot be complied with without additional provisions which are not indicated by the act itself, the court cannot supply such defects so as to give validity to the act. State ex rel. Mickey v. Reneau, 75 Neb. 1 , 104 N. W. 1151 , 106 N. W. 451 .” ( 188 Md. at 54 , 52 A. 2d at 266 ).
See also Schmeizl v. Schmeizl, 186 Md. 371, 375-76 , 46 A. 2d 619 (1946).
Judge Menchine, in his opinion in the trial court, stated the point well when he said:
“It is for the legislative branch, not the judicial, to make the decision whether pension benefits should be restricted to those rendering 'honorable service.’ The legislative branch has acted to require it of police and firemen; it has not seen fit to require it of general employees.”
I would affirm.