Wyatt v. State Roads Comm. , 175 Md. 258 ( 1938 )

I am unable to agree with so much of the majority opinion as decides that the State Roads Commission may validly assume in perpetuity the following obligation, which in the second paragraph of its Resolution of September 9th, 1938, it attempts to reserve the power to undertake: "the cost of maintaining, repairing and operating said bridge shall be paid from funds of the State Roads Commission applicable to the maintenance of state roads and highways in the event the State Roads Commission shall hereafter determine that it is not practicable to pay for the same out of revenues from tolls and other sources."

The effect of such an obligation on its face value would be to bind the State to take over the whole burden of operating, maintaining, and repairing any bridges constructed in connection with the project, in perpetuity, if it should prove to be a financial failure. I say in perpetuity, because there is no estimate, nor can there be one, of the probable revenue from tolls. If they prove insufficient to pay the interest and principal of the revenue bonds, the liability of the State could not end. That the obligation may impose upon the State heavy expenses is obvious. Should the bridges be destroyed or damaged by ice or storms, or become dangerous because of defects in structure or design, under the resolution they may at the option of the State Roads Commission be repaired at the expense of the State. The State Roads Commission may also assume the expenses of collecting the tolls and operating the bridges.

It is true that the power of the State Roads Commission to bind the State in perpetuity by a contract to dedicate a part of its general funds to the repair, operation and maintenance of the bridges and approaches is not necessarily involved in this case, because it may be assumed, though not so expressed in the resolution, that all obligations assumed therein are subject to the implied condition that the State may at any time amend or repeal the statute on which the resolution rests. Wabash R. Co.v. Defiance, 167 U.S. 88, 93, 17 S. Ct. 748, 42 L. Ed. 87;Louisville N.R. Co. v. Mottley, 219 U.S. 467, 31 S. Ct. 265, 55 L. Ed. 297 (passes). Referring to bargaining away legislative power, it is said in Norman v. Balto. O.R. Co., 294 U.S. 240, 55 S. Ct. 407, 416, 79 L. Ed. 885; "Contracts, however express, cannot fetter the constitutional authority of the Congress. Contracts may create rights of property, but, when contracts deal with a subject-matter which lies within the control of the Congress, they have a congenital infirmity. Parties cannot remove their transactions from the reach of dominant constitutional power by making contracts about them. See Hudson County WaterCo. v. McCarter, 209 U.S. 349, 357, 28 S. Ct. 529, 52 L. Ed. 828. This principle has familiar illustration in the exercise of the power to regulate commerce. If shippers and carriers stipulate for specified rates, although the rates may be lawful when the contracts are made, if Congress through the Interstate Commerce Commission exercises its authority and prescribes different rates, the latter control and override inconsistent stipulations in contracts previously made. This is so, even if the contract be a charter granted by a State and limiting rates, or a contract between municipalities and carriers. * * * Applying that principle, the court held that a contract, valid when made in (1871) for the giving of a free pass by an interstate carrier, in consideration of a release of a claim for damages, could not be enforced after the Congress had passed the Act of June 29, 1906, 34 Stat. 584 (U.S. Code Ann. title 49, par. 1)."

Nevertheless, since a possible purpose of this litigation is in aid of the merchantability of the revenue bonds, good faith with possible purchasers requires that that limitation on the power of the State Roads Commission should be announced at this time, as a consequence of interpreting the Commission's offer, which this court is required to construe.

The present litigation leaves open such important questions as the sufficiency of the title to chapter 356 of the Acts of 1937, and whether the Legislature may lawfully delegate to the State Roads Commission the power to decide whether it will obligate the State in perpetuity to dedicate its road and bridge funds to the maintenance, operation, and repair of units of the project. Since those questions are not raised in this case and since the objections which are raised are in my judgment untenable, subject to the limitation stated I concur in the affirmance of the decree appealed from.