Revell v. Mayor of Annapolis

Robinson, C. J.,

delivered the opinion of the Court.

The Act of 1894, chapter 620, provides for the erection of a public school building in the city of Annapolis, and to pay for the same, it authorizes and directs the School Commissioners of Anne Arundel County to borrow money, not exceeding the sum of twenty thousand dollars, on bonds, to be endorsed by the County Commissioners. And for the same purpose it directs that the city of Annapolis shall issue bonds to the amount of ten thousand dollars, and that said bonds shall be issued without submitting the question of their issue to the voters of said city.

The city of Annapolis has refused to issue the bonds as thus directed by the Act, and the question is whether the Legislature has the power to direct that the city authorities shall issue bonds to raise money to be applied to the erection of a public school building in said city.

This power is denied on the broad ground that it is not competent for the Legislature to compel a municipal corporation to create a debt or levy a tax for a local purpose, in which the State has no concern, or to assume a debt not within the corporate powers of a municipal government. If the correctness of this general proposition be conceded for the purposes of this case, we do not see how it affects, in any manner, the validity of the Act now in question. We cannot agree that the erection of buildings necessary for the public schools is a matter of merely local concern, in which the State has no interest. In this country the people are not only in theory but in practice the source of all governmental power, and the stability of free institutions mainly rests upon an enlightened public opinion. Fully recognizing this, the Constitution declares that it shall be the duty of the Legislature “ to establish throughout the State a thorough and efficient system of free public schools, and to provide by taxation or otherwise” for their maintenance *9 and support, Art. 8, sec. i. And the Legislature has accordingly established a public school system, and has provided for its support by State and local taxation. It cannot be said, therefore, that the erection of buildings for public school purposes is a matter in which the State has no concern, nor can we agree that the creation of a debt for such purposes is not within the ordinary functions of municipal government. What is a municipal corporation ? It is but a subordinate part of the State government, incorporated for public purposes, and clothed with special and limited powers of legislation in regard to its own local affairs. It has no inherent legislative power, and can exercise such powers only as have been expressly, or by fair implication, delegated to it by the Legislature. The control of highways and bridges within the corporate limits, the power to provide for an efficient police force, to pass all necessary laws and ordinances for the preservation of the health, safety and welfare of its people, and the power to provide for the support of its public schools by local taxation, are all among the ordinary powers delegated to municipal corporations. And the public schools in Baltimore City are not only under the control and supervision of the city authorities, but are mainly supported by municipal taxation. It is no answer to say that the public schools in Annapolis are under the control of the School Commissioners of Anne Arundel County, and that under its charter it has no power to create a debt or levy taxes for their support. The Legislature may, at its pleasure, alter, amend and enlarge its powers. It may authorize the city authorities to establish public schools within the corporate limits, and direct that bonds shall be issued to raise money for their support, payable at intervals during a series of years. There is no difference in principle between issuing bonds and the levying of a tax in one year sufficient to meet the necessary expenditure. It would be less burdensome to taxpayers to issue bonds payable at intervals than to levy a tax to raise ten thousand dollars in any one year. This, however, is a matter of detail within the dis *10 cretion.of the Legislature, and over which the Courts have no control.

If the Legislature has the power to direct the city authorities to create a debt for a public school building, the exercise of this power in no manner depends upon their consent or upon the consent of the qualified voters of the city. We recognize the force of the argument that the question whether a municipal debt is to be created ought to be left to the discretion and judgment of the people who are to bear the burden. We recognize, too, the fact that the exercise of this power by the Legislature may be liable to abuse. But the abuse of a power is no argument against its exercise. The remedy, however, in such cases, is with the people, to whom the members of the Legislature are responsible for the discharge of the trust committed to them. It is a matter over which the Courts have no control. If the debt to be created was for a private purpose that would present quite a different question, for it is a fundamental principle, inherent in the nature of taxation itself, that all burdens and taxes shall be levied for public and not for private purposes. Be that as it may, it is well-settled in this State that the Legislature has the power to compel a municipal corporation to levy a tax or incur a debt for a public purpose, and one within the ordinary functions of a municipal government.

In Pumphrey's case, 47 Md. 145 , a mandamus was sued out to compel the Mayor and City Council of Baltimore to purchase a bridge over Gwynn’s Falls, within the corporate limits, as directed by the Act of 1876 ; and the Court held that it was' the duty of the city to build and keep in repair bridges over its highways, and that the Legislature had the power to compel it to buy a bridge already constructed.

And in Mayor & C. C. of Balto. v. Reitz, 50 Md. 574 , it was decided that the Legislature had the power to compel the city authorities to acquire by comdemnation a lot of ground in said city to be used as a public square or park. Again in County Comrs. of Talbot County v. County Comrs. *11 of Queen Anne’s Co. 50 Md. 245 , it was held that the Legislature had the power to compel the Commissioners of Talbot County to levy a tax to pay one-half of the expense of building a bridge over “ Kent Island narrows,” and on the ground that the bridge was a public improvement of special interest and advantage to that county.

And we may here add that the case of the Commissioners of Revenue, 45 Alabama, 399, which was so much criticized in the argument and which is also critized by Judge Cooley, in his Constitutional Limitations, has, since the publication of the latter work, been confirmed without dissent by the Supreme Court. County of Mobile v. Kimball, 102 U. S. Rep. 691 . In that case the Legislature of Alabama appointed a Board of Harbor Commissioners-for the purpose of deepening and improving the bay of Mobile, and directed that the Commissioners of Revenue for the county of Mobile should issue coupon bonds of the county and deliver the same to the Harbor Commissioners to be sold and the proceeds applied in payment of the expenditure. On application for a mandamus to compel the Commissioners of Revenue to issue the bonds, the Supreme Court held that the Act was a valid exercise of legislative power. Referring to the Act, Mr. Justice Field says : “ Here the objection urged is that it fastens upon one county the expense of an improvement for the benefit of the whole State. Assuming this to be so, it is not an objection which destroys its validity. When any public work is authorized, it rests with the Legislature, unless restricted by constitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion the burden rat-ably among all the counties, or other particular subdivisions of the State, or lay the greater share or the whole upon that county or portion of the State specially and immediately benefited.”

To prevent' any misapprehension, it may be as well to say that we do not mean.to decide that it is competent for the Legislature to compel a municipal corporation to create a *12 debt or levy a tax for a .public improvement in another portion of the State, without reference to any special benefit to be derived therefrom by the city. Nor do we mean to decide that it is competent for the Legislature to compel a municipal corporation to bear the expense of a public improvement to be used exclusively for State purposes. What we do decide is that the Legislature has the power to provide for the erection of a public school building in the city of Annapolis, and to direct that the city authorities shall issue bonds for the purpose of raising money to pay the cost of such building, and this too, with or without the consent of the voters of said city. It is quite unnecessary to consider the many cases referred to in the full and able argument of the counsel for .the appellees, and in which the Courts of the several States have dealt with the question as to the power of the Legislature to compel a municipality to create debts or incur obligations for local purposes. All the cases agree that a municipal corporation cannot be compelled to incur a debt for a private purpose, and in some cases it has been decided that it cannot be compelled to create a debt for a local purpose, in which the State has no concern. As to the latter question, there is some conflict of opinion. We have been unable, however, to find a case which denies to the Legislature the power to compel a municipal corporation to incur a debt for the purpose of erecting a public school building within the city limits for the use of the public schools. Such an object being a public object, and one strictly within the functions of municipal government, there is no ground on which the exercise of such a power can be denied.

Objection was also made to the Act of 1894, because the Legislature had apportioned the cost of the building between the city, of Annapolis and Anne Arundel County, of which the city is a part. There is nothing in the record to show that the apportionment is in any manner unequal or unjust to the city. If any objection is to be made to the Act on this ground, it would seem that the taxpayers of *13 Anne Arundel County are the persons to make the objection, for the reason that they are required to pay two-thirds of the cost of the building, whilst the city of Annapolis, which is specially and directly interested in the improvement, is required to pay but one-third of the expenditure. The apportionment, however, was, as we have said, a matter within the discretion and power of the Legislature. This was decided in the County Commissioners of Talbot County, 50 Md. 245 , and also by the Supreme Court in Mobile County v. Kimball, 102 U. S. Rep. 691 .

In closing his argument, the counsel for the appellees suggested that the Act was invalid, because it was in conflict with the Fourteenth Amendment of the Federal Constistution, which forbids the taking of “ property without due process of law.” If invalid on this.ground, it is invalid under the Constitution of this State, which provides the same safeguards for the protection of life, liberty and property, and which has been the fundamental law of this State from the beginning of the Government. It is a sufficient answer to this objection to say that the Act in question, which requires the city authorities to issue bonds to raise money to pay the cost of a public school building is a lawful exercise of legislative power, and this being so, taxes levied to pay such bonds are not open to the objection of taking property “without due process of law.”

Nor can we agree that the Act is in conflict with sect. 33, Art. 3, of the Constitution, which declares that “the General Assembly shall pass no special law for any case for which provision has been made by an existing General Law.” The General Law provides, it is true, that the School Commissioners of Anne Arundel County shall have the control and supervision of the public schools in said county, with power to build, repair and furnish school houses. But it does not authorize the Commissioners to borrow money upon bonds to be endorsed by the County Commissioners for such purposes, nor does it provide for the apportionment of the cost of a public school building to be erected *14 in the city of Annapolis, between the county and the city. This could only be done by special Act, and this being so, the special Act is not in conflict with the Constitution, which forbids the passing of a special Act for any purpose for which provision has been made by an existing General Law. It follows from what we have said that the judgment overruling the demurrer in this case must be reversed.

(Decided March 26th, 1895.)

Judgment Reversed.