Bonsal v. Yellott , 100 Md. 481 ( 1905 )

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 the Act of 1904, ch. 225, and from making any other expenditures 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, ch. 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 stones, 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 appropriates 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 repair 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 provisions of the statute.

The question is whether this Act is in conflict with that part of sec. 34 of Art. 3 of the Constitution of the State, which is as 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 five hundred thousand dollars." The first provision of this character that was adopted in this State was in sec. 22 of Art. 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.

Inasmuch then as the provision in controversy was first introduced in the Constitution of 1851, and was continued in that of 1864 and, with such changes as we have noted, in that of 1867, it will be proper to consider the circumstances under which it was first adopted, the object of its adoption and the construction that has been placed on it by the Legislature, the framers of the several Constitutions and by the people. Questions of this chacacter cannot be determined by simply ascertaining the etymology of the terms used. Public roads may be, and unquestionably generally are, "internal improvements," but when the General Assembly has been prohibited for more than half a century from, in any mode, involving the State in the "construction of works of internal improvement, or granting any aid thereto which will involve the faith or credit of the State, or making any appropriation therefor," the question is not whether that term can include "public roads," but whether it was intended to and did do so, as used by the framers of the Constitution and the people who adopted it. As was said inJackson v. State, 87 Md. 194, "The Constitution is not to be construed in a technical manner, but in ascertaining its meaning we are to consider the circumstances attending its adoption, and what appears to have been the understanding of the people when they adopted it," and we then only announced a rule of interpretation which had been frequently adopted.

It is only by recalling, what seems almost like ancient history to us of today, 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 preseving 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 tmprovements," 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 twenty thousand dollars, in the aggregate, loaned to three counties, by the Act of 1774, ch. 21, we have not been cited to any instance where its credit had been involved for the benefit of "public roads," and indeed that was whilst Maryland was still a Colony. It was said by the appellees, and does not seem to be denied by the appellant, that that Act "is the only instance of direct aid from the treasury of the government, Provincial or State, to public roads." But be that as it may, certain it is, as clearly shown by the debates of the convention, that the "works of internal improvement" which had been and were then giving the people of this State such concern, were the Baltimore Ohio Railroad, the Chesapeake Ohio Canal, the Tidewater Canal, and similar companies in which the State's money had been so largely invested. Such enterprises were being aided, not only for the purpose of developing the State, but the Legislature had doubtless been made to believe that they would be profitable investments. But the time came when the State could not meet the interest on its debt, incurred by reason of these investments, and it was in danger of bankruptcy and repudiation. The Legislature passed "An Act to sell the State's interest in the internal improvement companies, and to pay the debts of the State" (1842, ch. 301), but they could not be sold for want of purchasers, and finally after a great struggle the obligations of the State were met by increased taxation, and its credit re-established. When then the constitutional convention of 1851 submitted to the people this 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 construct.

We are not called upon to attempt to give the history of highway legislation in Maryland. An article of much interest is found in vol. 3 of "Maryland Geological Survey," and the briefs filed in this case can be studied with profit. It must suffice to say that with the exception of the National road, built by the general government from Cumberland westward, the turnpike and plank roads, constructed by private corporations chartered by the State or by individuals, the public roads have been constructed almost, if not altogether, exclusively by the local authorities. We followed that rule of the common law, with others. But while that is so, it is equally true that no power of taxation, or other means of raising revenue for the construction and maintenance of roads, is vested in the counties, excepting what the State gives them. "Cities and counties are but local divisions of the State, organized and chartered for the more efficient and economical administration of the government. As such, they have no inherent power of taxation. The Legislature itself may levy needful taxes to defray the general expenses of such cities or counties, or it may delegate this power to the local authorities. These expenses of a city or county, for example expenses for * * * the maintenance of the public highways and other like expenses, are public or governmental expenses, and the power of taxation, exercised by the local authorities, to defray such expenses, is a delegated power derived from the Legislature." Daly v. Morgan, 69 Md. 467. Under our present system the County Commissioners are the boards in charge of the local affairs of the counties, and by sec. 1 of Art. 7 of the Constitution "their compensation, powers and duties shall be such as are now or may be hereafter prescribed by law." Under the Code of Public General Laws (Art. 25) they have charge of and control over county roads and bridges, have the power to open, alter or close public roads in their respective counties, and are required to keep them in repair. But the Legislature can so change their power and duties as to the public roads as to place them under the control of another board as was done in Baltimore County, where they were put in the hands of Roads' Commissioners, and the statute was upheld by this Court to the extent of relieving the County Commissioners from liability for damages for injuries sustained by reason of a road being out of repair. BaltimoreCounty v. Wilson, 97 Md. 207.

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 construction of county roads. It may well be that such assistance by the State as is proposed by this Act may be the means of enabling the counties to construct roads of a character that no one county could well undertake. A State commission, such as that provided for, may be able to introduce a system and methods that the local authorities of one county could not be expected to undertake. Yet, if the contention of the appellant is correct, there not only could not be a commission paid by the State to help the counties in this work, but even one such as this would be unlawful for although the Act of 1896, which created the commission, requires the members to serve without compensation, it provides that they shall be reimbursed for actual expenses incurred, and there are expenses connected with their duties other than those personal to the members of the commission, which must be met. Indeed can it be doubted that much of the work already done in connection with the "Maryland Geological Survey," is in conflict with this provision of the Constitution, if the construction contended for must be placed on it? On p. 38 of vol. 1 of the reports of that survey, attention is called to "The Special Investigation of Road Materials." After referring to the fact that perhaps no subject is attracting more attention "of enlightened commonwealths," than the proper construction of roads, "that if the money now expended annually by the several States was properly applied, a system of permanently good roads could be gradually constructed in place of the temporary makeshifts now in vogue," the importance of showing to the Road Commissioners of each county the various rock formations within the State, the most available local materials, questions of transportation of them, etc., that page concludes, "There are few ways in which the Geological Survey can be of more direct service to the State than in giving advice regarding the proper materials for road construction, and it is the intention of the State Geologist to give the subject his careful attention as the work of the survey proceeds." One entire volume (3) of these reports is devoted to this subject, and in other ways the money of the State has been used in aid of these "internal improvements," but is it to be suggested that the framers of our three Constitutions containing this provision ever dreamt that they were so effectually sealing the doors of our State Treasury as to prevent the expenditure of any of its money for such purposes? Every intelligent person in the State, who has given the work of this commission, and the officers and others employed by them, due consideration, must know that the public money has seldom been more advantageously spent for the development and advertisement of the State, and for the instruction of its people in matters that must be of the most practical and permanent benefit. Yet it cannot be doubted that if the appropriation made by the Act of 1904 is in conflict with the Constitution, the expenditure of all money heretofore expended by the officers of the Maryland Geological Survey for the benefit of the highways has likewise been so, for it would be an anomaly to say that the General Assembly cannot aid in the actual construction of the public roads, but can aid in finding, developing and testing the material for such roads, in instructing the county officials how to make roads, etc. Of course we are aware that it would not justify the expenditure of the money under the Act of 1904, to show that other money of the State had been used in connection with public roads, but we refer to this to show how far the contention of the appellant would require us to go, if adopted, and as we have no doubt about the authority of the officers of the Maryland Geological Survey to give such assistance to the counties as we have referred to, it reflects upon the question now before us.

One way of ascertaining the meaning of a word, term or expression as used in a Constitution, sanctioned by this and other Courts, is to see how it is used in other connections and provisions in the same instrument. The concluding part of this prohibition of the present Constitution throws considerable light on the subject — "except in aid of the construction of works of internal improvement 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." What "Works" had been therefore aided by the State? We have seen that the State had not aided such works as "public roads," but it had aided railroads, canals, etc., such as we have said the framers of the Constitution had in mind. If it was intended to equalize those counties with the others, manifestly it was intended to do so by aiding them in "such works" as the State had aided the others. It did not intend simply to make a donation to those three counties of half a million dollars, but that they should "have such aid, advances or appropriations" as had been given or made, which had directly benefited the other counties. That such was the legislative construction is shown by the significant fact that at the first session of the Legislature it passed "an Act to aid in construction of works of internal improvements in St. Mary's, Charles and Calvert Counties" (Act of 1868, ch. 454), in which this provision of the Constitution was referred to and, in the preamble, it was stated that "said counties have heretofore received no direct benefit from works heretofore aided by the State." The amount was then apportioned between the three counties and the State Treasurer was authorized to subscribe to the capital stock "of any railroad company now chartered or which may hereafter be chartered in said counties respectively" — thus conclusively showing that the members of the Legislature who were elected a few months after the Constitution was adopted construed the provision as contended for by the appellees.

Another provision of the Constitution which reflects on the subject is sec. 54 of the same Art. (3). That provides that "No county of this State shall contract any debt, or obligation, in the construction of any railroad, canal or other work of internal improvement, nor give or loan its credit to, or in aid of any association or corporation, unless authorized by an Act of the General Assembly," which must be published for two months and then be approved by a majority of all the members elected to each House of the next General Assembly. If the construction urged by the appellant be correct, a county could not incur a debt or obligation to construct a road, or build a bridge, without first complying with these provisions. It has happened in some portions of the State that a road as originally constructed has been so completely destroyed as to require building a new one for some distance, over other lands, and although bridges are included in the general term "internal improvements," it is not unusual, in some portions of the State, for them to be carried off by floods. If a county meets with such disaster by reason of high waters, such as some of them did in 1877, 1889, and other recent years, although a duty to replace rests upon it, nothing could be done for two or more years, depending upon when the disaster overtook it. Such a construction would be contrary to the practice of most, if not all, of the counties, and it would in some counties ruin many of the inhabitants if they are to be thus cut off from markets and other places they must reach for such length of time. Counties have frequently contracted large obligations in the original construction of roads and bridges without attempting to comply with the provisions of this section. The Legislature has over and over again passed laws requiring County Commissioners to build bridges and directing the issue of bonds. Sometimes it has authorized the issue of bonds for the purpose of building new roads and, so far as we are aware, it has never been the practice in such cases to comply with the provisions of sec. 54 of Art. 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 sec. 34 include "public roads," of the character in question, why does not that term have a similar meaning in sec. 54, of the same Article? Yet it has never been so understood and would be contrary to all precedents to so construe it.

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 sec. 42 (of 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 sec. 3 of Art. 12 of (1867), the Board of Public Works was authorized to exchange the State's interest in the Baltimore and Ohio Railroad Company and "to sell the State's interest in the other works of internal improvement, whether as a stockholders 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 undoubtedly 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 sec. 3 of Art. 12, or in sec. 34 of Art. 3? And do not these several provisions of the Constitution show conclusively that the "works of internal improvement" intended were such as the State had been connected with or interested in as "stockholder," or "creditor" — such as had driven it to the very verge of bankruptcy and repudiation — and not such as every State government must have, either in its own name or in the names of its "political agencies, created for the better government of the affairs of the State," which counties are said to be in QueenAnne's County v. Talbot County, 99 Md. 13.

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.

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 State House, 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 that the term "works of internal improvement," as used in this section of the Constitution, was not intended to and does not embrace the "public highways" contemplated by the Act of 1904. The occasion for such provision, the discussion of the subject in the convention that first adopted it, the context, the evident meaning of the term in other parts of the Constitutions, the prior, contemporaneous and subsequent construction of the term, all suggest this as the reasonable and proper meaning to be given to it by the Courts. Then when we add to those considerations the additional one that by the same Constitution which first adopted this provision it was provided that the County Commissioners "shall exercise such powers and duties only as the Legislature may from time to time prescribe," and by the present one their "powers and duties shall be such as now, or may be hereafter prescribed by law," we are strengthened in our conviction. For, as was well said in appellees' brief, "The establishment, construction and maintenance of public roads is a primary function of government," and when we remember that a county is but a division of the State, "created and organized for public political purposes connected with the administration of the State Government," and that the Legislature has, under the power given it by the Constitution, imposed the duty on the County Commissioners to raise money with which the public roads can be maintained, it would seem remarkable, if not unjust to the counties, if the Legislature was intentionally shorn of the power to give such reasonable aid to the counties towards the construction or improvement of public roads as this act contemplates. The General Assembly exercises great power over the counties and in no respect more than concerning their public roads and bridges, as illustrated in the cases between Queen Anne's County and Talbot County in 50 Md. 245, and 99 Md. 13, theBaltimore County Road case, supra, and by the Act of 1878, ch. 158, by which it required Allegany and Garrett Counties to take charge of and keep in repair the National Road. Yet if the appellant's contention is right, it cannot aid these "political divisions of the State, organized with a view to the general policy of the State," as was said of counties in Daly v.Morgan, "although they are constantly subject to legislative control," however desirable for the State at large it may be to do so. It cannot be doubted that in the absence of some constitutional prohibition the General Assembly has full power to furnish such aid, and when we are called upon to determine whether a recognized and unquestioned power has been taken from a body, such as the General Assembly, in which it was formerly vested, any doubt on the subject should be resolved in favor of its continuance, rather than against it — especially when it concerns a subject in which the State has so much interest as public roads. Rules of interpretation adopted by the Courts require them to sustain legislation when it can properly be done, and Courts should be inclined to continue the powers formerly vested in the General Assembly unless there be manifested a clear, unquestionable intent to take them from it.

Being of the opinion that the Act of 1904, ch. 225, is not in conflict with sec. 34 of Art. 3 of the Constitution, as the term "works of internal improvements" as therein used was not intended to apply to such public highways of the State, as are constructed by the counties, and contemplated by that Act, the decree of the lower Court so holding will be affirmed.

Decree affirmed, costs to be paid by the appellant.

(Decided March 22d 1905.)