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Messrs. John J. Donaldson and Os- | by express language or necessary implicaborne I. Yellott, for appellees:
tion, All powers of legislation are taken to State v. Rowe, 72 Md. 548, 20 Atl. 179. exist, except where prohibited, in express The general words must be restricted to terms or by necessary implication, in the subjects of the same genus as those speConstitution of the state.
cifically named. Cooley, Const. Lim. 6th ed. 102-109, 200, Maxwell, Interpretation of Statutes, 55, 201; People ex rel. Wood v. Draper, 15 N. 297; Roberts v. Gibson, 6 Harr. & J. 116. 9.532; Thorpe v. Rutland & B. R. Co. 27 Vt. 140, 62 Am. Dec. 625; Whittington v. Polk, Boyd, J., delivered the opinion of the 1 Harr. & J. 236; Davis v. Helbig, 27 Md. court: 452, 92 Am. Dec. 646; Dorchester County v. The appellant filed a bill in equity against Meekins, 50 Md. 28.
the appellees, in which he sought to enjoin To justify the courts in setting aside en them from expending any of the public actments of the co-ordinate legislative de- funds under their control for plans and partment of the state government there specifications for the construction of any must be a plain, and not a doubtful, viola- road under the provisions of Acts 1904, p. tion of the organic law.
388, chap. 225, and from making any other Drennen v. Banks, 80 Md. 310, 30 Atl. expenditure of such public funds under 655; Davis v. Helbig, 27 Md. 452, 92 Am. color of the provisions of that act. The Dec. 646; Dorchester County v. Meekins, 50 appellant is a resident and taxpayer of BalMd. 28.
timore county, and the appellees are the In construing the Constitution the courts county commissioners, sitting as the highmust consider the circumstances attending ways commission of said county. The act its adoption, and what appear to have been of 1904 is entitled “An Act for the Imthe understanding and purpose of those who provement of the Public Highways of the adopted it.
State and to Provide the Means Therefor, Bundel v. Isaac, 13 Md. 202; State v. and to Require the Commission Created by Mace, 5 Md. 337; Manly v. State, 7 Md. an Act of the General Assembly of 1896, 135; Buckingham v. Davis, 9 Md. 324; chap. 51, to Perform Certain Additional Jackson v. State, 87 Md. 191, 39 Atl. 504. Duties.” By it, it is proposed to furnish
It must be construed, also, with reference state aid for the construction of roads to the previous legislation of the state. which may be macadamized, or of a telford
Baltimore v. State, 15 Md. 376, 74 Am. or other stone, or constructed of gravel or Dec. 572; Manly v. State, 7 Md. 135.
other good material, “in such a manner that In like manner, a contemporaneous and the same will be, with reasonable repairs continued construction is of the greatest thereto, at all seasons of the year firm, weight, and should not be shaken except smooth, and convenient for travel.” It apupon the ground of manifest error and ur- propriates the sum of $200,000 annually, or, gent necessity.
so much thereof as may be necessary, out of State v. Mayhew, 2 Gill, 487; Catholic the state treasury, and provides that the Cathedral Church v. Manning, 72 Md. 116, state shall pay not exceeding one half of the 19 Atl. 599; Harrison v. State, 22 Md. 468, total cost and expenses of the roads built 85 Am. Dec. 658.
according to its provisions. The counties Such powers and duties as local author- are to pay the other half, and no county ities have had in Maryland, from the first is to receive a larger share of the amount settlement till to-day, in dealing with the appropriated than the proportion the pubpublic roads, including their construction lic-road mileage of the county bears to the and maintenance, the levy and appropria- total public-road mileage of all the counties tion of taxes for the purpose, they had sole in the state applying, as determined by the ly by delegation from the general assembly. commission. Any road constructed under
Hagerstoun v. Sehner, 37 Md. 180; Balti: the act is to be thereafter a county road, more v. State, 15 Md. 376, 74 Am. Dec. 572; and the duty of keeping it in regular order Horn v. Baltimore, 30 Md. 218; Groff v. devolves upon the county. The commission Frederick City, 44 Md. 67; Frederick v. provided for by the act of 1896, and referred Groshon, 30 Md. 436, 96 Am. Dec. 591; to in this act, is composed of the governor, Talbot County V. Queen Anne's County, 50 the comptroller, the president of Johns HopMd. 245; Pumphrey V. Baltimore, 47 Md. kins University, and the president of the 145, 28 Am. Rep. 446; Daly v. Morgan, 69 Maryland Agricultural College, and it has Md. 460, 1 L. R. A. 757, 16 Atl. 287; Bal- various duties to perform under the provitimore v. Reitz, 50 Md. 574.
cions of the statute. The taxing power belongs to the legisla The question is whether this act is in conture, and it will not be held to have been fict' with that part of 8 34 of article 3 conferred on a municipal corporation except of the Constitution of the state which is as
follows: "The credit of the state shall not It is only by recalling what seems almost in any manner be given or loaned to, or in like ancient history to us of to-day-that aid of, any individual association or corpo- there was a time when the state's credit was ration; nor shall the general assembly have seriously affected—that we can appreciate the power in any mode to involve the state the occasion for such a provision as the one in the construction of works of internal im- under consideration. Yet we find the same provement, nor in granting any aid thereto, legislature that passed this act recognizing which shall involve the faith or credit of the the great public services rendered by a forstate; nor make any appropriation therefor, mer governor of Maryland in preserving its except in aid of the construction of works credit, not long prior to the assembling of of internal improvements in the counties what was called “The Maryland Reform of St. Mary's, Charles, and Calvert, which | Convention to Revise the Constitution." have had no direct advantage from such From the debates of that convention and works as have been heretofore aided by the other history of the state, it is well known state; and provided that such aid, advances. that it had expended millions of dollars or appropriations shall not exceed in the ag. in aiding “works of internal improvement,” gregate the sum of $500,000.” The first which in some instances proved to be worthprovision of this character that was adopted less investments, and in others giving little in this state was in § 22 of article 3 of the or no promise of early returns. But they Constitution of 1851. It was similar to were canals, railroads, possibly turnpikes, that in the present Constitution, excepting, and similar internal improvements; and, so instead of using the expression “nor in far as the records disclose, or we are in. granting any aid thereto, which shall in- formed, not one dollar of the state's money volve the faith or credit of the state,” it had been lost or was in any jeopardy by said, “or in any enterprise which shall reason of aid to such "public roads” as we involve the faith or credit of the state,” and are now concerned in. With the exception no exception was made in favor of the three of about $20,000, in the aggregate, loaned counties named. The Constitution of 1864 to three counties by Acts 1774, chap. 21, we followed the language of that of 1851. have not been cited to any instance where
Inasmuch, then, as the provision in con its 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 Biltimay be, and unquestionably generally are, more & Ohio Railroad, the Chesa peake & "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 pur. the 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
provision, it is certain that its members, tent of relieving the county commissioners and the people had in mind the character of from liability for damages for injuries "internal improvements” which had been sustained by reason of a road being out of so disastrous to the state, and it would repair. Baltimore County v. Wilson, 97 seem to be equally clear that they did Md. 207, 54 Atl. 71, 56 Atl. 596. not refer to the ordinary "public roads,” Such being the case, it would which the public authorities alone con- strange if the people did mean by this prostruct.
vision in the Constitution to deprive the We are not called upon to attempt to legislature of the power to aid in the congive 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 ffled 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 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 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 external improvements;" but is it to be sug
gested that the framers of our three Con- , should "have such aid, advances, or approstitutions containing this provision ever priations” as had been given or made, which dreamt that they were so effectually seal- had directly benefited the other counties. ing the doors of our state treasury, as to That such was the legislative construction prevent the expenditure of any of its money is shown by the significant fact that at the for such purposes ? Every intelligent per- first session of the legislature it passed “An son in the state, who has given the work Act to Aid in Construction of Works of Inof this commission, and the officers and ternal Improvements in St. Mary's, Charles, others employed by them, due considera- and Calvert Counties” (Acts 1868, p. 880, tion, must know that the public money has chap. 454), in which this provision of the seldom been more advantageously spent for Constitution was referred to; and in the the development and advertisement of the preamble it was stated that “said counties state, and for the instruction of its people have heretofore received no direct benefit in matters that must be of the most practi- from works heretofore aided by the state." cal and permanent benefit. Yet it cannot The amount was then apportioned between be doubted that, if the appropriation made the three counties, and the state treasurer by the act of 1904 is in conflict with the was authorized to subscribe to the capital Constitution, the expenditure of all money stock "of any railroad company now charheretofore expended by the officers of the tered, or which may hereafter be chartered. Maryland Geological Survey for the benefit in said counties respectively;” thus conof the highways has likewise been so, for clusively showing that the members of the it would be an anomaly to say that the legislature who were elected a few months general assembly cannot aid in the actual after the Constitution was adopted conconstruction of the public roads, but can strued the provision as contended for by aid in finding, developing, and testing the the appellees. material for such roads, in instructing the Another provision of the Constitution county officials how to make roads, etc. which reflects on the subject is g 54 of the Of course, we are aware that it would not same article (3). That provides that “no justify the expenditure of the money under county of this state shall contract any debt, the act of 1904 to show that other money or obligation, in the construction of any of the state had been used in connection with railroad, canal, or other work of internal public roads, but we refer to this to show improvement, nor give or loan its credit to, how far the contention of the appellant or in aid oi, any association or corporation, would require us to go, if adopted; and, unless authorized by an act of the general as we have no doubt of the authority of assembly," which must be published for two the officers of the Maryland Geological Sur months, and then be approved by a majorvey to give such assistance to the counties ity of all the members elected to each house as we have referred to, it reflects upon the of the next general assembly. If the conquestion now before us.
struction urged by the appellant be correct, One way of ascertaining the meaning of a county could not incur a debt or obligaa word, term, or expression as used in a tion to construct a road or build a bridge Constitution, sanctioned by this and other without first complying with these provi. courts, is to see how it is used in other con- sions. It has happened in some portions of nections and provisions in the same in the state that a road as originally construment. The concluding part of this pro structed has been so completely destroyed hibition of the present Constitution throws as to require building a new one for some considerable light on the subject: “Except distance over other lands; and, although in aid of the construction of works of in- bridges are included in the general term “internal improvement in the counties of St. ternal improvements,” it is not unusual, in Mary's, Charles, and Calvert, which have some portions of the state, for them to be had no direct advantage from such works carried off by floods. If a county meets as have been heretofore aided by the state." with such disaster by reason of high waters, What “works” had been heretofore aided such as some of them did in 1877, 1889, and by the state? We have seen that the state other recent years, although a duty to rehad not aided such works as "public roads,” place rests upon it, nothing could be done but it had aided railroads, canals, etc., such for two or more years; depending upon as we have said the framers of the Con- when the disaster overtook it. Such a constitution had in mind. If it was intended struction would be contrary to the practice to equalize those counties with the others, of most, if not all, of the counties; and it manifestly it was intended to do so by aid would in some counties ruin many of the ing them in “such works” as the state had inhabitants if they are to be thus cut off aided the others. It did not intend simply from markets and other places they must to make a donation to those three counties reach for such length of time. Counties of half a million dollars, but that they have frequently contracted large obligations
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
The learned counsel for the appellees article 3 of the Constitution, as it was not have quoted the titles of many acts of the thought to be necessary, either by the mem- general assembly passed prior to the adopbers of the legislature, the governors and tion of the Constitution of 1851 which attorney generals passing on such acts, the strongly indicate the meaning of the term county officials, or by the people at large. as used by the legislature during the periIt would be unreasonable, therefore, to od this state was becoming interested in suppose that the framers of the Constitu- “internal improvements.” They are such tion, or the people who voted on it, ever
as "An Act for the Promotion of Internal intended to give such a construction to the improvements,” “A Supplement to the Act term “works of internal improvement,” and, Entitled 'An Act for the Promotion of Inif it was not so intended as to the counties, ternal Improvements,'” “An Act to Provide why was it as to the state? If "works of Ways and Means to Meet the Subscriptions internal improvement” in § 34 include "pub- on the Part of the State to Works of Interlic roads” of the character in question, why nal Improvements,” and many others. It does not that term have a similar meaning will be seen by an examination that in most in § 54 of the same article ? Yet it has of them provision was made for subscription never been so understood, and it would be by the state to the stock or bonds of railcontrary to all precedents to so construe it. roads or canals, or both, the issue of certifi
Still other expressions are to be found in cates of stock of the state, and other means the Constitution of the state showing that to aid these “internal improvements.” An the meaning of this term is not such as examination of these and similar acts canthe appellant urges. In this same section not fail to strengthen the conviction that the legislature is forbidden to "use or ap- the makers of our Constitutions, and the propriate the proceeds of the internal im: people who by their action made them efprovement companies;” in § 42, art. 3, fective, had in mind such internal improveConst. 1851, it was made the duty of the ments as those acts have reference to, and legislature, as soon as the public debt was not such as public roads. paid, "to cause to be transferred to the It is dificult to do full justice to this several counties and the city of Baltimore subject in an opinion of anything like reastock in the internal improvement com- sonable length, and we do not desire to unpanies;” in § 3, art. 12, Const. 1867, the necessarily prolong this, important as board of public works was authorized to realize the subject to be. We fully appreexchange the state's interest in the Balti ciate the importance, and, under some conmore & Ohio Railroad Company, and “to ditions, the necessity, of curbing the tensell the state's interest in the other works dency to make too free use of the public of internal improvement, whether a funds or the credit of the state. This prostockholder or a creditor;” and now by vision in the Constitution is a wise one, that section, as amended in 1891, "to sell and perhaps has at times saved the state the state's interest in all works of internal from becoming interested, not to say in. improvement, whether as a stockholder or volved, in what might well be deemed quescreditor.” In 1867 the state owned, ex- tionable enterprises for a state to embark clusive of the counties, the national road in. Nor have we any doubt that a public within its boundaries, and it was undoubt. highway is an "internal improvement,” as, edly a "public highway;" but can it be indeed, in a sense, the term may include supposed for a moment that it was a "work the statehouse, the court of appeals buildof internal improvement,” within the meaning, the penitentiary, house of correction, ing intended to be given that term in the reformatory institutions, hospitals, and the Constitution,-either in § 3 of article 12, like, including the improvements of the or in § 34 of article 3? And do not these grounds appurtenant thereto, and the roads several provisions of the Constitution show and ways leading to them; but we are conconclusively that the "works of internal vinced tut the term “works of internal imimprovement” intended were such as the provement,” as used in this section of the state had been connected with or interested / Constitution, was not intended to, and does