Culp v. Commissioners of Chestertown

• Decision Date: 04 April 1928
• Docket Number: 20.
• Citation: 141 A. 410,154 Md. 620
• Parties: CULP ET AL. v. COMMISSIONERS OF CHESTERTOWN.
• Court: Maryland Court of Appeals

141 A. 410

154 Md. 620

CULP ET AL. v. COMMISSIONERS OF CHESTERTOWN.

No. 20.

Court of Appeals of Maryland

April 4, 1928

Appeal from Circuit Court, Kent County, in Equity; William H. Adkins and Thomas J. Keating, Judges.

"To be officially reported."

Suit by William M. Culp and others against the Commissioners of Chestertown, a body corporate. From an adverse order complainants appeal. Reversed and remanded.

Argued before PATTISON, URNER, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

John D Urie, of Chestertown, and Charles F. Harley, of Baltimore for appellants.

Herbert E. Perkins, of Chestertown (Harrison W. Vickers, Jr., and S. Scott Beck, both of Chestertown, on the brief), for appellees.

DIGGES J.

The proceedings in this case are designed to test the constitutionality of chapter 359 of the Acts of 1927. The general scope of this act is to provide for the construction of roadways, sewers, and sidewalks in Chestertown, Kent county, to issue bonds for the payment of these improvements, and liquidate an existing indebtedness of the town. The appellants, citizens and taxpayers of Chestertown, attacked the legality of this legislation on several grounds. In our view of the case, it is only necessary to consider three of these contentions, namely, first, that section 7 of the act declares it to be an emergency law necessary for the preservation of the public health and safety, when in fact and reality no emergency existed; second, that section 4 of article 76 of the Code requires that every public local law made to take effect before the 1st day of June next after the session at which it may be passed shall immediately after its passage be published once in each of three successive weeks in such newspaper or newspapers of the respective counties in which it may operate as the county commissioners of each county may direct, which provision of the Code was not complied with in this case; and, third, that the act is unconstitutional in that it is violative of section 29 of article 3 of the Constitution, which requires "that every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title."

We will consider these objections to the legality of the legislation now before us in order above stated. Article 16 of the Constitution, known as the referendum article, exempts certain classes of legislation from the provisions of that article, and provides the mode of referring those classes of legislation embraced in the article to a vote of the people for adoption or rejection. It makes no provision for a referendum to the voters of any city of the state other than Baltimore City, and to no rural section of the state of a less extent than a county. In the cases of Strange v. Levy, 134 Md. 645, 107 A. 549, and Richardson v. Blackstone, 135 Md. 531, 109 A. 440, this court has definitely determined that article 16 of the Constitution does not apply to acts relating to towns and cities other than Baltimore City, and that such acts, although not emergency acts, can be made to take effect as of the date of their passage. As a result of these decisions it is clear that the act here under consideration does not come within the provisions of article 16 of the Constitution, and therefore that portion of section 7 of the act which declares it to be an emergency law and necessary for the preservation of the public health and safety is surplusage and should be rejected, leaving intact that portion of section 7 of the act which declares that the same shall take effect from the date of its passage. If legislation confined to the municipality of Chestertown did come under the provisions of article 16 of the Constitution, the act would take effect from the date of its passage because of the legislative declaration that it was an emergency law necessary for the preservation of the public health and safety and passed by the necessary three-fifths vote of the membership of both houses of the General Assembly. But, as stated, this legislation is not within the purview of article 16 of the Constitution, and is governed by section 31 of article 3 of the Constitution, which provides:

"No law passed by the General Assembly shall take effect until the first day of June next after the session at which it may be passed, unless it be otherwise expressly declared therein."

The act here being controlled by section 31 of article 3 and expressly declaring in the act that it shall take effect from the date of its passage, every constitutional requirement to make it effective on and from that date has been complied with.

What we have said disposes of the first contention of the appellants, without regard to the contention made in their brief in respect to an act not being an emergency law simply because of the Legislature's declaration to that effect. We deem it advisable, however, to say in answer to that argument that if the class of legislation enacted is not embraced in and covered by the provisions of article 16 of the Constitution, the Legislature has the undoubted right to fix the date of its taking effect, without declaring it an emergency law and without the necessity of its passage by a vote of three-fifths of the membership of both houses; and if the legislation does come within the provisions of article 16 of the Constitution, in that event the question of whether or not an emergency in fact exists is a question for the Legislature, and its determination is final and not subject to review by the courts. This is made clear by the language of section 2 of article 16, which provides:

"No law enacted by the General Assembly shall take effect until the first day of June next after the session at which it may be passed, unless it contain a section declaring such law an emergency law and necessary for the immediate preservation of the public health or safety, and passed upon a yea and nay vote supported by three-fifths of all the members elected to each of the two houses of the General Assembly."

The effect of this language is to declare that any act of the Legislature comprehended and coming within the provisions of article 16 which contains a section declaring such law to be an emergency law and necessary for the immediate preservation of the public health or safety, and passed upon a yea and nay vote supported by three-fifths of all the members elected to each of the two houses of the General Assembly, may be made to take effect at any time expressed in said act.

The second contention of the appellants is that this act is invalid for the reason that the provisions of section 4 of article 76 of the Code requires that every public local law made to take effect before the 1st day of June next after the session at which it may be passed shall immediately after its passage be published once in each of three successive weeks in such newspaper or newspapers of the respective counties in which it may operate, as the county commissioners of each county may direct. It is clear from a reading of this section that its provisions cannot be considered mandatory and a condition precedent to the act's taking effect. To interpret this section to be more than directory would postpone the effectiveness of any public local law for at least three weeks after its passage, and this no matter how great the emergency to meet which the act might have been passed. And, again, if compliance with its provisions should be held to be a condition precedent to the act's taking effect, the county commissioners of any county might, through inadvertence, negligence, refusal, or disagreement as to the papers in which it is to be published, postpone the date at which such legislation would take effect, thereby frustrating the legislative purpose. The Legislature adjourns in the early part of April, and as to those laws that become effective on June 1st following, the public have sufficient time to be informed as to how they will be affected by the new legislation, and it was for the purpose of giving this information by publication as soon as possible after the passage of legislation taking effect before the 1st of June that the section now under consideration was passed.

The third objection urged by the appellants, namely, that the act violates section 29 of article 3 of the Constitution, is sound, and this renders the act fatally defective. This constitutional provision is that every law enacted by the General Assembly shall embrace but one subject and shall be described in its title. This language has probably been more productive of litigation than any other section of our state Constitution, much of which has reached this court and been the subject of numerous decisions. We do not propose to review any great number of these decisions, because they have little force as precedents except in so far as they settle principles of constitutional and statutory construction. These rules are succinctly laid down by this court, speaking through Judge Burke, in the case of Painter v Mattfeldt, 119 Md. 466, 87 A. 413, with the authorities in this court and elsewhere supporting the principles therein stated. The authorities hold that section 29 of article 3 of the Constitution is mandatory, but that the general disposition of this court has been to give this section a liberal construction so as not to interfere with or impede legislative action; that the title of an act, whilst it must indicate the subject, need not give an abstract of the act, yet it must not be misleading by what it contains or what it omits. The purpose of this constitutional provision has been declared to be to prevent separate and incongruous subjects from being contained in one act, and thereby preventing "log-rolling" legislation; to give the people general notice of the...