Baltimore & D.P.R. Co. v. Pumphrey
| Decision Date | 25 March 1891 |
| Parties | BALTIMORE & D. P. R. CO. v. PUMPHREY ET AL. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Anne Arundel county, in equity.
Const Md. art. 3, § 54, provides: "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 shall be published for two months before the next election for members of the house of delegates in the newspapers published in such county, and shall also be approved by a majority of all the members elected to each house of the general assembly at its next session after said election."
Argued before ALVEY, C.J., and ROBINSON, IRVING, BRYAN, MCSHERRY FOWLER, and BRISCOE, JJ.
John P. Poe and Geo. Hoadly, for appellant.
John F. Williams, Isidor Rayner and Frank H. Stockett, for appellees.
The bill in this case was filed by a considerable number of the taxpayers of Anne Arundel county for the purpose of having declared inoperative and without continued effect the act of the general assembly of 1872, c. 245, and the confirmatory act of 1874, c. 225, and also to have declared nugatory and void all the proceedings under those acts taken by the board of county commissioners of that county for the purpose of effecting a subscription to the capital stock of the Baltimore & Drum Point Railroad Company, for and on behalf of the county, to the extent of $200,000. The railroad company was incorporated by the act of the general assembly of 1868, c. 364, to construct and operate a railroad from the city of Baltimore to Drum Point, at the mouth of the Patuxent river, in Calvert county, nearly all of the location of the route of such road being within the limits of Anne Arundel and Calvert counties. By the nineteenth section of the act of incorporation it was provided that if the said road should not be commenced within six years from the passage of the act of incorporation, and should not be finished within four years from the time of the commencement thereof, then the act should be null and void. The bill charges several grounds for impeaching the validity and continued operation of the proceedings and resolutions of the board of county commissioners, taken professedly under the acts of assembly above mentioned, and charges the same to be void, and without binding effect, and the plaintiffs, by proof introduced into the case, impeach the constitutional validity of the confirmatory act of 1874, c. 225, itself. An injunction is prayed to restrain all proceedings under the acts or the resolutions of the commissioners, and also for general relief. The county commissioners and the railroad company were made defendants. The commissioners failed to appear and answer, and an interlocutory decree was taken as against them. They left the questions raised by the bill to be contested by the railroad company alone. The railroad company appeared and answered, and by its answer it denies and controverts all the most material allegations and conclusions of the plaintiffs. Upon proof taken, the case was brought to final hearing; and the court below decreed in favor of the plaintiffs, and enjoined all further proceedings of the commissioners under the acts of assembly.
There is no question made, and could be none, as to the right of the plaintiffs as tax-payers of the county to maintain the bill. That has been decided in several cases in this court. Mayor v. Gill, 31 Md. 395; Industrial School v. Brown, 45 Md. 310. The act of 1872, c. 245, by its first section, authorized the county commissioners of Anne Arundel county, in the name of and for said county, to subscribe for and hold shares of the capital stock of the Baltimore & Drum Point Railroad Company to an amount not to exceed $200,000 at the par value of said shares; and by the second section of the act the commissioners are authorized, for the purpose of meeting said subscription, to issue bonds of the county, with interest coupons attached, to the amount of $200,000; and by the eighth section of the act it is provided that said bonds so to be issued shall be received by the railroad company at the par value thereof in payment of the shares of stock so to be subscribed for. By the ninth section of the act certain conditions were prescribed upon which the bonds may be delivered to the railroad company, all depending upon the progress of the work within the limits of the county; and in regard to the last installment of the bonds to be issued, being the one-fourth of the whole amount authorized, it is provided that they shall be delivered to the railroad company "when the whole of the line of said railroad within the limits of said county shall have been fully built and constructed, and in running order; and that the said bonds shall not be issued or delivered to the said company in any greater installments, nor at any earlier periods, than as above specified: and provided that no bonds shall be issued under this act unless the said company shall, by an amendment of its charter, agree and bind itself to run daily at least two through trains of passenger cars, without change of cars, between the city of Baltimore and Annapolis, either over its own road or in connection with the Annapolis and Elk Ridge Railroad if its road shall not be extended to Annapolis." Section 12 of the act directs that the question of the approval or disapproval of the act should be submitted to the legally qualified voters of the county at an election to be held on the fourth Monday of April then next, and, as the act declared that it should take effect from the date ofits passage, and it was approved by the governor on the 1st day of April, 1872, it spoke from that date, and the election provided for should have been held on the fourth Monday of April, 1873. But, according to the proclamation of the clerk, made as required by the provision of the twelfth section of the act, the election was held on the fourth Monday of April, 1872, a year in advance of the proper time. The confirmatory act of 1874, c. 225, which professed by its title to be passed in pursuance of section 54 of article 3 of the constitution, was passed doubtlessly upon the assumption that the popular election required by the act of 1872 had been regularly held, and that the act of 1872 had been duly published, as required by the constitutional provision referred to, in the newspapers of the county, "for two months before the election for members of the house of delegates," which was held on the 4th day of November, 1873; but it now appears by the production of the county newspapers in court under an agreement that in neither of the two newspapers so produced was the act of 1872, c. 245, published for the full period of two months before the day of election of members to the then next house of delegates. In the one paper the first insertion of the act was on the 6th day of September, 1873, and in the other the first insertion was on the 9th of September, 1873. It is therefore clear that the act of 1872 was not duly published for two months before the election held on the 4th day of November, 1873.
It is proper to notice in passing that the railroad company applied to and procured from the legislature of 1876 an act amendatory of its charter, (Act 1876, c. 337,) by which the time for the completion of the road was extended for the period of five years from the 1st of January, 1877. This act was approved on the 8th of April, 1876, and it took effect from the date of its passage. It was therefore in operation as part of the charter of the company on the 6th of June 1876, when the county commissioners first attempted to exercise the power that was supposed to have been delegated to them by the acts of the general assembly of 1872, c. 245, and of 1874, c. 225. It is also proper to notice the act of 1874, c. 433, whereby the city of Baltimore was authorized to subscribe to the capital stock of this railroad company, or to indorse its first mortgage bonds, to an amount not exceeding $500,000, upon such terms and conditions as the mayor and city council might by ordinance prescribe. That act was also in force at the time when the county commissioners attempted to make the subscription on the 6th of June, 1876, but the authority conferred by this act of 1874 has never been exercised by the city authorities. As we have just stated, the first proceeding taken by the county commissioners under the act of 1872 to make the subscription on behalf of the county was on the 6th of June, 1876. But it appears that before that time the railroad company, by its president and directors, had become anxious and active in the matter, and proceeded so far as to consider and determine upon the terms and conditions of the subscription that they sought to obtain from the county, and actually formulated in the shape of a resolution the subscription, with the exact terms and conditions therein as those subsequently adopted by the county commissioners. This resolution of the board of directors was passed on the 10th of March, 1876, and it was declared by the same resolution that the railroad company would and did thereby agree to accept the subscription for the county on the terms and conditions thus formulated and set forth in the resolution, and which resolution was transmitted to the county commissioners, and became the basis of the subscription made by them on the 6th of June, 1876. The terms and conditions thus proposed were adopted, and the subscription ordered to be made accordingly. The order directing the subscription was made matter of record, and it was thereby resolved that the subscription...
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