County Commissioners v. County Commissioners

•Constitutionality of the Acts of 1874, ch. 270, and 1870, ch. 314, relating to Kent Narrows — Construction of Section 29 of Article 3 of the Constitution of 3807 — Powers of the Legislature — How far Counties as Municipal Organizations are under Control of the Legislature— When the State may authorize Bridges over Navigable Streams — Bights of Navigation. The Act of 1874, ch. 276, is entitled: “An Act to repeal the Act passed on the twenty-first of January, eighteen hundred and twenty, chapter seventy, and the Act passed on the tenth of February, eighteen hundred and twenty-one, chapter one hundred and twenty eight, and the Act passed at the January Session, eighteen hundred and seventy, chapter four hundred and sixty-four, relating to Kent Narrows.” The Act of 1876, ch. 314, is entitled: “An Act to repeal the Act passed eighteen hundred and seventy-four, chapter two liundred and seventy-six, relating to Kent Narrows, and all preceding Acts relating thereto, and to re-enact as follows.” The Act of 1874, after repealing preceding Acts, provided for levying a tax by the County Commissioners of Queen Anne’s and Talbot Counties, for the purpose of erecting a drawbridge over Kent Narrows. The Act of 1876, after repealing the Act of 1874, and preceding Acts, provided for levying a tax by the Commissioners of the two counties, for the purpose of erecting and keeping in repair a drawbridge over Kent Narrows and providing for a keeper of the draw of the bridge. Held: That the titles of these Acts are sufficient to gratify the requirement of sec. 29 of Art. 3 of the Constitution of 1867, which provides, that “ every law enacted by the General Assembly, shall embrace but one subject, and that shall be described in its title.” A county is one of the public territorial divisions of the State, created and organized for public political purposes connected with the administration of the State Government, and specially charged with the superintendence and administration of the local affairs of the community; and being in its nature and objects a municipal organization, the Legislature may, unless restrained by the Constitution) or some one or other of those fundamental maxims, of right and justice with respect to which all governments and society are supposed to be organized, exercise control over the county agencies, and require such public duties and functions to be performed by them, as fall within the general scope and objects of the municipal organization. The Legislature can by mandatory Act require the County Commissioners of a county of this State to levy taxes on the public of the county generally, and incur debts and obligations for the construction and maintenance of a way or bridge located within the limits of another county, where the purpose of the taxation required is not only public, but the object to be accomplished is at the same time local in its character and of special and peculiar interest to the people sought to be taxed. It would not be competent for a county to levy taxes to be expended in the construction of a road or bridge beyond its territorial limits without the express authority of law. In the absence of any restrictive legislation on the subject by Congress, the State may authorize bridges over navigable streams, by statutes so guarded as to protect the substantial rights of navigation.

Appeal from the Circuit Court for Talbot County. This was an application by the County Commissioners of Queen Anne’s County for a writ of mandamus against the County Commissioners of Talbot County to compel them to comply with the provisions of the Act of 1876, ch. 314, for the construction and maintenance of a drawbridge over the channel of Kent Narrows, a body of water within the limits of Queen Anne’s County. The County Commissioners of Talbot County, in their answer to the petition of the County Commissioners of Queen Anne’s County, assigned as reasons why the writ' should not be issued, that the Act of 1876, ch. 314, and the Act of 1874, ch. 276, relating to the same subject and repealed by the Act of 1876, were unconstitutional and null and void. By agreement of the parties, a judgment pro forma for the petitioners was entered by the Circuit Court for Talbot County, and the respondents appealed. The facts of the case are further stated in the opinion of the Court. The Act of Assembly of 1874, ch. 276, was valid and effectual for no other purpose than to repeal the laws previously enacted relating to Kent Harrows expressly described in its title and repealed by its first section, and each and all of its provisions from section two to section six, inclusive, are and were, from the date of its enactment, utterly null and void. By section 29 of Article III, of the Constitution of Maryland it is, among other things, provided that “every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title.” Davis vs. The State, 7 Md., 160; Keller, et al. vs. The State, 11 Md., 525; Parkinson vs. The State, 14 Md., 184; Mayor of Annapolis vs. The State, 30 Md., 112. The Act of Assembly of 1876, ch. 314, is wholly and utterly void, being in contravention and violation of the 29th sec. of Art. III, of the Constitution hereinbefore quoted. The three Acts preceding the Act of 1874, ch! 276, relating to Kent Harrows, had already been effectively repealed by the first section of that Act. They were thus as completely obliterated from the records of the Legislature as if they had never been passed, and were to be treated, except for certain purposes not necessary to be here stated, as if they had never existed. Dashield vs. Mayor, &c. of Balto., 45 Md., 615. The case at bar in its facts hears no resemblance to the cases of Davis vs. The State, 7 Md., 160; Keller, et al. vs. The State, 11 Md., 525; Parkinson vs. The State, 14 Md., 184; Mayor of Annapolis vs. The State, 30 Md., 112; for it is clear, to use the language employed by the Court in the first named case, that, in each of them, the law “embraced- hut one subject and such other matters as were inseparably connected with it, and none other.” Not so in this case. Here, the only valid Acts described in the title were the three which preceded the Act of 1874, and were repealed by its first section. They provided for the erection of a bridge over Kent Narrows as a purely local work, at the sole expense of Queen Anne’s County, or of a joint stock company, while the body of the law of 1876 contains provisions for building and maintaining a bridge and causeway, the annual expense of a keeper, and other matters, at the joint expense of Queen Anne’s and Talbot Counties, the money therefor to he raised by a tax on the property of each county. The erection of a bridge, exclusively located in Queen Anne’s County, as a public highway, might well constitute the principal subject of a law for that purpose,- and the expense of its erection and maintenance he treated as matter inseparably connected with it, and, therefore, unnecessary to he described in the title; hut when one-half of the cost of erecting and maintaining such a bridge is saddled upon the people and property of a municipal corporation outside of whose limits it is located, the means of its erection and maintenance can no longer he considered as inseparable incidents, hut become part and parcel of the principal subject of the law, and should he described in its title. The General Assembly of Maryland has no power, by mandatory legislation, to compel a municipal corporation, against its OAvn will and consent, to levy taxes, incur debts, or assume obligations for purposes not within the ordinary functions of municipal government, or for objects wholly outside of, and beyond its territorial limits, whatever may be the local benefits to accrue therefrom, and therefore, the Acts in question are void. Municipal corporations are public bodies created by State authority and invested with the two-fold character of agencies in the administration of the State government, and of local governments, under their charters, for the benefit, exclusively, of their corporator, and though generally subject to legislative control, the power of the Legislature is neither absolute nor unlimited. Cooley on Constitutional Limitations, top pages 212 213, 230, 232 and 233, and authorities there cited, and fully considered in copious notes. Pumphrey vs. Mayor, &c., of Baltimore, 47 Md., 151. A State has no power to authorize any material obstructions to navigation to be placed in a navigable river or any of its tributaries, and the erection of a bridge over a navigable stream, under State authority, may he restrained by a Federal Court, where such bridge materially obstructs the navigation of-the stream. Devoe vs. Penrose Ferry Bridge Co., 3 Am. L. R., 79; Columbus Insurance Co. vs. Curtenius, 6 McL., 209; Jolly vs. Terre Haute Bridge Co., 6 McL., 237. In cases of doubt on the question of power in the Legislature to pass a law, the Courts ought not to interfere and pronounce it unconstitutional; they cannot do so without assuming (where it does not clearly appear) that the Constitution has been violated. Mayor, &c. of Balt. vs. Board of Police of Balt., 15 Md., 376. It is not necessary to insert in the title all the details provided for carrying the law into effect; the description of the subject in the Act, need only be a brief and concise statement, merely sufficient to indicate the nature of it. Negro Ann Hammond vs. The State, 14 Md., 135. And a whole law, otherwise constitutional, would not he rendered void hy the introduction of a single foreign or irrelevant subject not indicated in the title. In such case the irrelevant matter would he rejected as void, and the principal subject of the law, if properly described in the title, would be valid. Davis vs. The State, 7 Md., 151; see also Keller, et al. vs. The State, 11 Md., 525; Miller and Kauffman vs. Barroll, 14 Md., 173; Parkinson vs. The State, 14 Md., 184. The Court of Appeals have decided in 15 Md., 376, that the counties are public territorial divisions of the State, established for public political purposes connected with the administration of the government, possessing the character and endowed with the power of corporations according to the laws severally applicable to each. See also State, use of Washington Co. vs. B. & O. Railroad Co., 12 G. & J., 399; Regents’ Case, 9 G. & J., 365, 397 and 401; Pumphrey vs. Mayor & C. C. of Balto., 47 Md. 147. The general subject of legislation in all these various enactments is the Kent Narrows; this is the subject, which is proposed to be operated on, so to spealc. If the Kent Narrows is the subject, then it is described in the title to all their laws “in totidem verbis.” The enacting clauses or sections of the law are to deal with the manner and extent of the proposed legislation. Anything we opine, which concerns the opening, deepening, widening and bridging the Narrows, so as to render them convenient for travel and commerce, would be covered hy the mention of the subject in the title. The Kent Narrows being the subject of legislation, the members of the Legislature, at the mention of the word in the reading of the title, are to be wide awake as to what is proposed to be done to or with the Kent Narrows — whether they are to be obliterated altogether, or enlarged, widened, bridged, improved and made a monument of legislative wisdom. The opening of highways and constructing of bridges, is one of, or within the ordinary functions of municipal government. In the face of the general power to open and lay down highways and construct bridges, the mandatory power of the Legislature, in the absence and against the consent and will of the municipality, to compel not only the building of a bridge, but the purchase of one, is recognized and established in the case of a municipal corporation like Baltimore City, whose existence as such is recognized in the Constitution of the State, and provision therein made for its government. Pumphrey vs. Mayor and C. C. of Baltimore City, 47 Md., 150. Tried by the principles laid down in that decision, there can be no question of the validity of these laws so far as Queen Anne’s County is concerned, the bridge being within the territorial limits of that county. The question then is narrowed down as to the validity of these enactments in question in Talbot County. Had the Legislature the constitutional power to pass a law requiring the County Commissioners of Talbot County to levy a tax on the inhabitants or the taxable property of Talbot County, to raise a proportionate part of the amount necessary to remove the causeway over Kent Harrows, build a draw and bridge over the same, and also providing for the keeping of said draw and bridge in repair, and providing for the keeper of the draw of the same; it being conceded that the work is wholly outside the territorial limits of Talbot County, and wholly within those of Queen Anne’s County? It may be proper here to give a brief history of the Harrows, and of the legislation had in reference thereto. The Kent Harrows was a shallow stream of water connecting the waters of Eastern Bay with those of Ohes.ter River, and separating two parts of Queen Anne’s County. It became necessary, for the convenience of the trade and travel of the people of Queen Anne’s County, that the stream should be bridged. A solid causeway, or wood, stone and dirt embankment was thrown across it by legislative authority, as far back as 1820 or 1821. Since that time it had been in use and answered all the purposes of the -local trade and travel of the people of Queen Anne’s County, until the legislation contained in _the Acts of 1874 and 1876, was inaugurated. It is not generally supposed that the Narrows has ever been a navigable stream. The man is not living who can testify to its ever having been a navigable stream. If it ever had been navigable, at the time of the construction of the causeway across it, it had been from the operation of natural causes rendered unnavigable, or else the use of it was so little resorted to, and of so little moment to commerce and travel, that it was, without objection from any quarter, permitted to be closed under State authority. It is fair to presume that the stream was not a navigable stream, or else that a causeway was built across it by consent of all the proper authorities. Washburn’s Easements and Servitudes., 481; Wilson vs. Black Bird Creek, 2 Peters, 250; Flanagan vs. City of Phila., 42 Penn., 231; United States vs. New Bedford Bridge, 11 W. & Minot, 407; Colt vs. Smith, 16 Wis., 661. It is a significant fact that the United States Government did not undertake the removal of the obstructions from the stream, and the cutting of a channel through the same, until the consent of the State of Maryland had been had and obtained in the provisions of the Act of 1874, and then acted strictly in accordance with the agencies of the State in the work of removal, &c. So far as Queen Anne’s County was concerned, there was no special local interest requiring the change from a causeway to a bridge with draw. As appears by the Act of 1874, the object had in view was, that the United States might open and deepen the Narrows for the purpose of local commerce and water travel of Talbot County, and perhaps some small section of Queen Anne’s County, to and from the City of Baltimore. The main object was to shorten the distance between Talbot County and the City of Baltimore, for steamboats and sailing vessels, and avoid the long and often times dangerous voyage around the lower end, and up the western coast of Kent Island. Talhot County had, it was supposed, a much larger interest in the proposed change and improvement than Queen Anne’s County could possibly have. The Acts in question were based chiefly, if not altogether, on the supposed interest of Talbot County. The Act of 1876, so expressly declares. A special interest in the work in behalf of Talbot County and its people being apparent, the validity of the law is established beyond question, the Legislature is the judge of the quantum of interest, which should invoke its action. See People vs. Lawrence, 41 New York, 137 to 141, pr. Mason, J.; Malchus vs. Highlands, 4 Bush, 547 ; Shelby & Co. vs. Railroad Co., 5 Bush, 225; People vs. Hawes, 34 Barb., 69; Litchfield vs. Venion, 41 N. York, 123 to 133. The only question is, did the Legislature act in making the enactments in question, from proper principles and motives? The presumption is, that it did. The special interest and wishes of Talbot County, were the controlling motives and principles of action throughout. The acceptance by Talbot County Commissioners and the people of said county, without resistance or objection of the legislation of 1874, ch. 276, providing in its 6th section for additional levies for the building of a substantial bridge, if necessary, equally upon Talbot and Queen Anne’s Counties, the embarkation in the work and contracting therefor conjointly with Queen Anne’s County, committed Talbot County to the completion of the work, and all such legislation as might legitimately grow or spring out of the enterprise. “ In general, specific authority would he required to enable a municipality to expend money outside its territorial limits for a purpose which is not presumptively local.” Cooley on Taxation, 123. See Concord vs. Boscowen, 17 N. H., 465. See also Cooley on Taxation. — Establishment, of districts, diversity of districts, overlying districts, ch. V, 110, &c. What the Legislature may permit, it may compel a municipal corporation to perform. See Kirby vs. Shaw, 19 Penn. St., 258; Gordon vs. Comes, 47 New York, 608; Thomas vs. Leland, 24 Wend., 67; Pumphrey vs. Mayor &c. C. C. of Balt. City, 47 Md., 152; State, use of W. County vs. B. and O. R. R. Co., 12 G. & J., 436; Constitution of Md., 1867, Article VII, sec. 1; Cooley on Constitutional Limitations, title Townships and Counties, chapter VIII, 240; Graff vs. Mayor, &c., of Frederick City, 44 Md., 67. Acts of the Legislature are presumed to he constitutional — are not to he pronounced unconstitutional when a well founded doubt exists — only in cases of a manifest infringement of a constitutional provision or gross violation of the rights of the people, are they to he declared void by the Courts. Harrison, et al. vs. State, use of Harrison, 22 Md., 468 ; Davis, et al., Lessee vs. Helbig, 27 Md., 452. Taxes can he imposed for public purposes, and local tax for local interests; and the right to determine whether the purposes of the tax are public or the interest local, is primarily a legislative right, not to he controlled hy the Courts, except under and by virtue of some constitutional restriction. Cooley on Taxation, ch. IV, 67; Burroughs on Taxation, page 6, par. 12. The Courts should support this right in the Legislature, unless clearly satisfied that an error has been committed.Cooley, 69. The right of the Legislature to impose a local or district tax does not depend upon the expenditure of the tax within the district, or upon the situs of the public work within the district, but upon some benefit to be derived by the people of the locality, or some local interest in the work, not common to all the people of the State. Cooley 123, 419; Burroughs, page 22, ch. 3, par. 26; Burroughs, page 38, par. 39; Cooley, 68 and 69. If the consent of the people of Talbot County to the tax, and their special interest in the bridge, are matters for controversy in this suit, they are set forth as facts in the Act of 1876, ch. 314, and there is no evidence or proof to the contrary. The Acts of 1874, ch. 276, and of 1876, ch. 314, are not in violation and contravention of the Constitution, Art. 3, sec. 29. Even the letter of this constitutional provision seems to have been complied with, though perhaps unintentionally, by the Legislature. These Acts, taken either separately or collectively, embrace but one subject, and that subject is described in the title to each as Kent Harrows.