City of Cumberland v. Magruder

• Decision Date: 31 May 1871
• Citation: 34 Md. 381
• Parties: MAYOR AND COUNCILMEN OF THE CITY OF CUMBERLAND, and others, v. JONATHAN W. MAGRUDER, THOMAS J. MCKAIG, and others.
• Court: Maryland Court of Appeals

34 Md. 381

MAYOR AND COUNCILMEN OF THE CITY OF CUMBERLAND, and others, v. JONATHAN W. MAGRUDER, THOMAS J. MCKAIG, and others.

Court of Appeals of Maryland

May 31, 1871

APPEAL from the Circuit Court for Allegany County, in Equity.

The opinion of the Court sets forth the facts of the case sufficiently.

The cause was argued before BARTOL, C.J., STEWART, BRENT MAULSBY, GRASON and MILLER, J.

J H. Gordon, for the appellants.

The proviso is a limit only upon the authority of the corporation in the exercise of the power granted by the 4th section, and does not apply to the powers given by the Act of 1867. Minis vs. United States, 15 Peters, 444; Smith on Stat. & Const. Law, 712; Rex vs Taunton St. James, 9 B. & C., 835; Amey vs City of Allegany, 24 How., 372; Abbott's Dig. Corp., 484, sec. 16.

The question of power being established in favor of the appellants, a Court of Equity will not grant an injunction to restrain them in the exercise of their discretion so long as they are within the scope of their powers. Story's Eq. Juris., 955, a; Abbott's Dig. Corp., 536, sec 553; 498, sec. 170; Attorney General vs. Forbes, 2 Mylne & Craig, 133; Salmon vs. Randall, 3 M. & C., 439; Frewin vs. Lewis, 4 M. & C. 249.

William Walsh and Thomas J. McKaig, for the appellees.

The policy of the State at the time of the adoption of this restrictive clause, 1st June, 1864, was to prevent the State itself from incurring any debt for internal improvements. Const., 1851, Art. 3, sec. 22; Const., 1864, Art. 3, sec. 33; Const., 1867, Art. 3, sec. 34.

The proper policy for the State is proper for each of its parts, and, therefore, in construing the Acts which have a bearing in this case, the Court should bear in mind the fixed policy established by the people in the adoption of these constitutional restrictions.

A later statute does not repeal an earlier one, unless plainly repugnant to the former, or unless it fully embraces the whole subject matter, or unless it does so in terms. Sedgwick on Stat. & Const. Law, 124, 127; 3 Gill, 154; 20 Pick., 410; 5 Md., 11; 4 G. & J., 152, 153; 12 G. & J., 257.

A repeal by implication is not favored; on the contrary, Courts are bound to uphold the prior law, if the two Acts may well subsist together. 3 Howard, 636; 5 Hill, 225, 226; Dwarris on Statutes, 673-675; 9 Pick., 87, 92; 2 Pick., 172, 176; 24 Pick., 297; 9 Mass., 31.

The necessary implication to repeal an Act must be as certain as an express repeal. 13 U.S. D., 595, sec. 34; 9 Barbour, 268.

All Acts in pari materia are to be taken together, as if they were one law. 9 Cowen, 506.

In the case at bar, the Act authorizing the building the bridge, should be read and construed with the other Act, which prohibited a pledge of the corporate credit over $10,000 without an approving vote of the corporators.

There is no inconsistency or repugnancy whatever between the Acts. Every word of the latter can stand fully with the limitation in the former. It must be borne in mind that the Act of 1867 is an enabling Act.

The only effect produced by a construction which permits this prohibition to stand, is, that before the powers granted by the latter law are exercised in the creation of a debt, there shall be an approving vote of the corporators. Such construction is in no manner repugnant to or inconsistent with the powers conferred by the Act to build the bridge; they all stand, and are all to be exercised, after an approving vote, if an approving vote is given.

To declare otherwise would be to cast a reflection upon the Legislature, which the Court will not do.

MILLER J., delivered the opinion of the Court.

This appeal is from an order granting an injunction, prohibiting the appellants from issuing bonds of the city of Cumberland to raise money for building a bridge over the Potomac river, and from executing certain contracts alleged to have been entered into for its construction.

A motion to dismiss has been made on the ground that the paper filed as an answer by the Mayor and Councilmen is no answer, not being under the seal of the corporation. We need not decide whether this objection has been waived, and the answer accepted by the replication thereto, or by any subsequent proceedings in the case, so as to sustain the appeal if it had been taken by the corporation alone, because we are satisfied the case is before us on the appeal of the other defendants whose answers are unobjectionable. The motion is therefore overruled.

The bill was filed by certain residents and tax payers of the city of Cumberland, and among other allegations it charges that the corporate authorities have entered into contracts with the other defendants, for amounts exceeding in the aggregate $24,000, for erecting a bridge across the Potomac at a certain point; that this bridge when completed will cost at least $30,000, and that to raise this sum the Mayor and Councilmen are preparing to issue coupon bonds of the city, payable to bearer, by which as well as by the contracts aforesaid, if executed, the faith and credit of the city will become pledged to an amount far exceeding $10,000, without first submitting the question to the decision of a majority of the legal voters of the city, in compliance with its charter as amended by the Act of 1864, ch. 121. The bill then avers that the authority to issue bonds conferred by the Act of 1867, ch. 29, under which the city authorities pretend to act in the premises, can be executed only in the mode pointed out and subject to the restrictions contained in the charter, or, in other words, that the provision in the Act of 1864, that the faith and credit of the city shall not be pledged for any sum exceeding $10,000, without the previous assent of a majority of its legal voters, is not repealed by the subsequent law of 1867, but applies to and governs the exercise of all the powers in respect to the issuing of bonds and making contracts to be found in that statute. We must determine whether that is the true construction and effect of these two laws, for if it be, then it is clear the restraining power of a Court of Equity was rightly invoked by the complainants, and properly exercised by the order appealed from.

The law of 1864 is an amendment of the charter of the city. Its fourth section contains grants of...