Messrs. John J. Donaldson and Os- by express language or necessary implicaborne I. Yellott, for appellees:

tion.

All powers of legislation are taken to exist, except where prohibited, in express terms or by necessary implication, in the Constitution of the state.

Cooley, Const. Lim. 6th ed. 102-109, 200, 201; People ex rel. Wood v. Draper, 15 N. Y. 532; Thorpe v. Rutland & B. R. Co. 27 Vt. 140, 62 Am. Dec. 625; Whittington v. Polk, 1 Harr. & J. 236; Davis v. Helbig, 27 Md. 452, 92 Am. Dec. 646; Dorchester County v. Meekins, 50 Md. 28.

To justify the courts in setting aside enactments of the co-ordinate legislative department of the state government there must be a plain, and not a doubtful, violation of the organic law.

Drennen v. Banks, 80 Md. 310, 30 Atl. 655; Davis v. Helbig, 27 Md. 452, 92 Am. Dec. 646; Dorchester County v. Meekins, 50

Md. 28.

In construing the Constitution the courts must consider the circumstances attending its adoption, and what appear to have been the understanding and purpose of those who adopted it.

Boyd, J., delivered the opinion of the court:

The appellant filed a bill in equity against the appellees, in which he sought to enjoin them from expending any of the public funds under their control for plans and specifications for the construction of any road under the provisions of Acts 1904, p. 388, chap. 225, and from making any other expenditure of such public funds under color of the provisions of that act. The appellant is a resident and taxpayer of Baltimore county, and the appellees are the county commissioners, sitting as the highways commission of said county. The act of 1904 is entitled "An Act for the Improvement of the Public Highways of the State and to Provide the Means Therefor, and to Require the Commission Created by an Act of the General Assembly of 1896, chap. 51, to Perform Certain Additional Duties." By it, it is proposed to furnish state aid for the construction of roads which may be macadamized, or of a telford or other stone, or constructed of gravel or other good material, "in such a manner that the same will be, with reasonable repairs thereto, at all seasons of the year firm, smooth, and convenient for travel." It apur-propriates the sum of $200,000 annually, or, so much thereof as may be necessary, out of the state treasury, and provides that the state shall pay not exceeding one half of the total cost and expenses of the roads built according to its provisions. The counties are to pay the other half, and no county is to receive a larger share of the amount appropriated than the proportion the public-road mileage of the county bears to the total public-road mileage of all the counties in the state applying, as determined by the commission. Any road constructed under the act is to be thereafter a county road, and the duty of keeping it in regular order devolves upon the county. The commission provided for by the act of 1896, and referred to in this act, is composed of the governor, the comptroller, the president of Johns Hopkins University, and the president of the Maryland Agricultural College, and it has various duties to perform under the provicions of the statute.

Bundel v. Isaac, 13 Md. 202; State v. Mace, 5 Md. 337; Manly v. State, 7 Md. 135; Buckingham v. Davis, 9 Md. 324; Jackson v. State, 87 Md. 191, 39 Atl. 504. It must be construed, also, with reference to the previous legislation of the state.

Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; Manly v. State, 7 Md. 135.

In like manner, a contemporaneous and continued construction is of the greatest weight, and should not be shaken except upon the ground of manifest error and gent necessity.

State v. Mayhew, 2 Gill, 487; Catholic Cathedral Church v. Manning, 72 Md. 116, 19 Atl. 599; Harrison v. State, 22 Md. 468, 85 Am. Dec. 658.

Such powers and duties as local authorities have had in Maryland, from the first settlement till to-day, in dealing with the public roads, including their construction and maintenance, the levy and appropriation of taxes for the purpose, they had solely by delegation from the general assembly. Hagerstown v. Sehner, 37 Md. 180; Balti more v. State, 15 Md. 376, 74 Am. Dec. 572; Horn v. Baltimore, 30 Md. 218; Groff v. Frederick City, 44 Md. 67; Frederick v. Groshon, 30 Md. 436, 96 Am. Dec. 591; Talbot County v. Queen Anne's County, 50 Md. 245; Pumphrey v. Baltimore, 47 Md. 145, 28 Am. Rep. 446; Daly v. Morgan, 69 Md. 460, 1 L. R. A. 757, 16 Atl. 287; Baltimore v. Reitz, 50 Md. 574.

The taxing power belongs to the legislature, and it will not be held to have been conferred on a municipal corporation except

State v. Rowe, 72 Md. 548, 20 Atl. 179. The general words must be restricted to subjects of the same genus as those specifically named.

Maxwell, Interpretation of Statutes, 55, 297; Roberts v. Gibson, 6 Harr. & J. 116.

The question is whether this act is in conflict with that part of § 34 of article 3 of the Constitution of the state which is as

It is only by recalling what seems almost like ancient history to us of to-day-that there was a time when the state's credit was seriously affected-that we can appreciate the occasion for such a provision as the one under consideration. Yet we find the same legislature that passed this act recognizing the great public services rendered by a former governor of Maryland in preserving its credit, not long prior to the assembling of what was called "The Maryland Reform Convention to Revise the Constitution." From the debates of that convention and other history of the state, it is well known that it had expended millions of dollars in aiding "works of internal improvement," which in some instances proved to be worthless investments, and in others giving little or no promise of early returns. But they were canals, railroads, possibly turnpikes, and similar internal improvements; and, so far as the records disclose, or we are informed, not one dollar of the state's money had been lost or was in any jeopardy by reason of aid to such "public roads" as we are now concerned in. With the exception of about $20,000, in the aggregate, loaned to three counties by Acts 1774, chap. 21, we have not been cited to any instance where Inasmuch, then, as the provision in conits credit had been involved for the benetroversy was first introduced in the Consti- fit of "public roads," and, indeed, that tution of 1851, and was continued in that was whilst Maryland was still a colony. It of 1864, and, with such changes as we have was said by the appellees, and does not seem noted, in that of 1867, it will be proper to to be denied by the appellant, that that consider the circumstances under which it act is "the only instance of direct aid from was first adopted, the object of its adoption, the treasury of the government, provincial and the construction that has been placed or state, to public roads." But be that on it by the legislature, the framers of tne as it may, certain it is, as clearly shown several Constitutions, and by the people. by the debates of the convention, that the Questions of this character cannot be de- "works of internal improvement" which termined by simply ascertaining the ety- had been and were then giving people of mology of the terms used. Public roads this state such concern were the Balti may be, and unquestionably generally are, more & Ohio Railroad, the Chesapeake & "internal improvements;" but when the gen- Ohio Canal, the Tidewater Canal, and simieral assembly has been prohibited for more lar companies in which the state's money than half a century from in any mode in- had been so largely invested. Such entervolving the state in "the construction of prises were being aided not only for the purworks of internal improvement, or grant pose of developing the state, but the legis ing any aid thereto, which will involve the lature had doubtless been made to believe faith or credit of the state, or making any that they would be profitable investments. appropriation therefor,"the question is not But the time came when the state could whether that term can include "public not meet the interest on its debt incurred by roads," but whether it was intended to and reason of these investments, and it was in did do so, as used by the framers of the danger of bankruptcy and repudiation. The Constitution and the people who adopted it. legislature passed: "An Act to Sell the As was said in Jackson v. State, 87 Md. 194, State's Interest in the Internal Im39 Atl. 505: "The Constitution is not to be provement Companies, and to Pay the Debts construed in a technical manner, but in as- of the State" (Acts 1842, 1843, chap. 301). certaining its meaning we are to consider but they could not be sold, for want of purthe circumstances attending its adoption, and chasers; and finally, after a great struggle, what appears to have been the understand-the obligations of the state were met by ining of the people when they adopted it;" and creased taxation, and its credit re-estabwe then only announced a rule of interpreta-lished. When, then, the constitutional contion which had been frequently adopted. vention of 1851 submitted to the people this

follows: "The credit of the state shall not in any manner be given or loaned to, or in aid of, any individual association or corporation; nor shall the general assembly have the power in any mode to involve the state in the construction of works of internal improvement, nor in granting any aid thereto, which shall involve the faith or credit of the state; nor make any appropriation therefor, except in aid of the construction of works of internal improvements in the counties of St. Mary's, Charles, and Calvert, which have had no direct advantage from such works as have been heretofore aided by the state; and provided that such aid, advances, or appropriations shall not exceed in the aggregate the sum of $500,000." The first provision of this character that was adopted in this state was in § 22 of article 3 of the Constitution of 1851. It was similar to that in the present Constitution, excepting, instead of using the expression "nor in granting any aid thereto, which shall involve the faith or credit of the state," it said, "or in any enterprise which shall involve the faith or credit of the state," and no exception was made in favor of the three counties named. The Constitution of 1864 followed the language of that of 1851.

provision, it is certain that its members and the people had in mind the character of "internal improvements" which had been so disastrous to the state, and it would seem to be equally clear that they did not refer to the ordinary "public roads," which the public authorities alone con

struct.

tent of relieving the county commissioners from liability for damages for injuries sustained by reason of a road being out of repair. Baltimore County v. Wilson, 97 Md. 207, 54 Atl. 71, 56 Atl. 596.

Such being the case, it would seem strange if the people did mean by this provision in the Constitution to deprive the legislature of the power to aid in the con

We are not called upon to attempt to give the history of highway legislation instruction of county roads. It may well be Maryland. An article of much interest is that such assistance by the state as is found in volume 3 of "Maryland Geological proposed by this act may be the means of Survey," and the briefs filed in this case enabling the counties to construct roads of can be studied. with profit. It must suf- a character that no one county could well fice to say that, with the exception of the undertake. A state commission such as National Road, built by the general gov- that provided for may be able to introduce ernment from Cumberland westward, and a system and methods that the local authe turnpike and plank roads constructed thorities of one county could not be expectby private corporations chartered by the ed to undertake. Yet, if the contention of state or by individuals, the public roads the appellant is correct, there not only could have been constructed almost, if not alto- not be a commission paid by the state to gether, exclusively by the local authorities. help the counties in this work, but even We followed that rule of the common law, one such as this would be unlawful, for, alwith others. But, while that is so, it is though the act of 1896 which created the equally true that no power of taxation or commission requires the members to serve other means of raising revenue for the without compensation, it provides that they construction and maintenance of roads is shall be reimbursed for actual expenses invested in the counties, excepting what the curred, and there are expenses connected state gives them. "Cities and counties are with their duties, other than those personal but local divisions of the state, organized to the members of the commission, which and chartered for the more efficient and must be met. Indeed, can it be doubted economical administration of the govern- that much of the work already done in ment. As such they have no inherent power connection with the Maryland Geological of taxation. The legislature itself may levy Survey is in conflict with this provision of needful taxes to defray the general expenses the Constitution, if the construction conof such cities or counties, or it may delegate tended for must be placed on it? On page this power to the local authorities. These 38 of volume 1 of the reports of that surexpenses of a city or county-for example, vey attention is called to "the special inexpenses for the maintenance of vestigation of road materials." After rethe public highways and other like expenses ferring to the fact that perhaps no subject -are public or governmental expenses; and is attracting more attention "of enlightened the power of taxation, exercised by the local commonwealths" than the proper construcauthorities, to defray such expenses, is a tion of roads, and "that, if the money now delegated power derived from the legisla- expended annually by the several states ture." Daly v. Morgan, 69 Md. 467, 1 L. R. was properly applied, a system of permaA. 757, 16 Atl. 287. Under our present nently good roads could be gradually consystem the county commissioners are the structed in place of the temporary makeboards in charge of the local affairs of the shifts now in vogue," the importance of counties; and, by § 1 of article 7 of the Con- showing to the road commissioners of each stitution, "their compensation, powers, and county the various rock formations within duties shall be such as now or may be the state, the most available local materials, hereafter prescribed by law." Under the questions of transportation of them, etc., Code of Public General Laws (art. 25) they that page concludes: "There are few ways have charge of and control over county in which the Geological Survey can be of roads and bridges, have the power to open, more direct service to the state than in alter, or close public roads in their respec- giving advice regarding the proper mative counties, and are required to keep them terials for road construction, and it is the in repair. But the legislature can so intention of the State Geologist to give the change their powers and duties as to the subject his careful attention as the work public roads as to place them under the con- of the survey proceeds." One entire voltrol of another board, as was done in Balti- ume (3) of these reports is devoted to this more county, where they were put in the subject, and in other ways the money of hands of road commissioners; and the stat-the state has been used in aid of these "inute was upheld by this court, to the ex- ternal improvements;" but is it to be sug

in the original construction of roads and in as "stockholder" or "creditor,"-such as bridges without attempting to comply with had driven it to the very verge of bankthe provisions of this section. The legis- ruptcy and repudiation,—and not such as lature has, over and over again, passed every state government must have, either laws requiring county commissioners to in its own name, or in the names of its build bridges, and directing the issue of "political agencies, created for the better bonds. Sometimes it has authorized the government of the affairs of the state," issue of bonds for the purpose of building which counties are said to be in Queen new roads, and, so far as we are aware, it Anne's County v. Talbot County, 99 Md. 13, has never been the practice in such cases 57 Atl. 1. to comply with the provisions of § 54 of article 3 of the Constitution, as it was not thought to be necessary, either by the members of the legislature, the governors and attorney generals passing on such acts, the county officials, or by the people at large. It would be unreasonable, therefore, to suppose that the framers of the Constitution, or the people who voted on it, ever intended to give such a construction to the term "works of internal improvement," and, if it was not so intended as to the counties, why was it as to the state? If "works of internal improvement" in § 34 include "public roads" of the character in question, why does not that term have a similar meaning in 54 of the same article? Yet it has never been so understood, and it would be contrary to all precedents to so construe it.

The learned counsel for the appellees have quoted the titles of many acts of the general assembly passed prior to the adoption of the Constitution of 1851 which strongly indicate the meaning of the term as used by the legislature during the period this state was becoming interested in "internal improvements." They are such as "An Act for the Promotion of Internal improvements," "A Supplement to the Act Entitled 'An Act for the Promotion of Internal Improvements,"" "An Act to Provide Ways and Means to Meet the Subscriptions on the Part of the State to Works of Internal Improvements," and many others. It will be seen by an examination that in most of them provision was made for subscription by the state to the stock or bonds of railroads or canals, or both, the issue of certificates of stock of the state, and other means to aid these "internal improvements." An examination of these and similar acts cannot fail to strengthen the conviction that the makers of our Constitutions, and the people who by their action made them effective, had in mind such internal improvements as those acts have reference to, and not such as public roads.

Still other expressions are to be found in the Constitution of the state showing that the meaning of this term is not such as the appellant urges. In this same section the legislature is forbidden to "use or appropriate the proceeds of the internal improvement companies;" in § 42, art. 3, Const. 1851, it was made the duty of the legislature, as soon as the public debt was paid, "to cause to be transferred to the several counties and the city of Baltimore stock in the internal improvement companies;" in § 3, art. 12, Const. 1867, the board of public works was authorized to exchange the state's interest in the Baltimore & Ohio Railroad Company, and "to sell the state's interest in the other works of internal improvement, whether as a stockholder or a creditor;" and now by that section, as amended in 1891, "to sell the state's interest in all works of internal improvement, whether as a stockholder or creditor." In 1867 the state owned, exclusive of the counties, the national road within its boundaries, and it was undoubt edly a "public highway;" but can it be supposed for a moment that it was a "work of internal improvement," within the meaning intended to be given that term in the Constitution, either in § 3 of article 12, or in § 34 of article 3? And do not these several provisions of the Constitution show conclusively that the "works of interna improvement" intended were such as the state had been connected with or interested

It is difficult to do full justice to this subject in an opinion of anything like reasonable length, and we do not desire to unnecessarily prolong this, important as we realize the subject to be. We fully appreciate the importance, and, under some conditions, the necessity, of curbing the tendency to make too free use of the public funds or the credit of the state. This provision in the Constitution is a wise one, and perhaps has at times saved the state from becoming interested, not to say involved, in what might well be deemed questionable enterprises for a state to embark in. Nor have we any doubt that a public highway is an "internal improvement," as, indeed, in a sense, the term may include the statehouse, the court of appeals building, the penitentiary, house of correction, reformatory institutions, hospitals, and the like, including the improvements of the grounds appurtenant thereto, and the roads and ways leading to them; but we are convinced tt the term "works of internal improvement," as used in this section of the Constitution, was not intended to, and does