Mealey v. City of Hagerstown

• Citation: 48 A. 746,92 Md. 741
• Parties: MEALEY et al. v. MAYOR, ETC., OF CITY OF HAGERSTOWN et al.
• Decision Date: 21 February 1901
• Court: Court of Appeals of Maryland

48 A. 746

92 Md. 741

MEALEY et al. v. MAYOR, ETC., OF CITY OF HAGERSTOWN et al.

Court of Appeals of Maryland

February 21, 1901

Appeal from circuit court, Washington county, in equity; Edward Stake, Judge.

"To be officially reported."

Suit by Edward W. Mealey and others against the mayor and council of Hagerstown and others. From a decree sustaining a demurrer to the complaint, complainants appeal. Affirmed.

Argued before McSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD, JONES BRISCOE, and SCHMUCKER, JJ.

I Clarence Lane, Alex. Neill, and Edgar H. Gans, for appellants.

Buchanan Schley and I.A. Mason, for appellees.

BOYD J.

This appeal brings before us for review the pro forma decree of the court below sustaining a demurrer to the amended bill of complaint filed by the appellants against the appellees. The appellants are taxpayers of Hagerstown, and seek to enjoin the defendants from contracting for the construction of an electric light plant, from the purchase or lease of any land or property for that purpose, from issuing or selling any bonds for the purpose of raising money to pay for such electric light plant, land, or other equipments, and from levying or collecting any taxes for the payment of the interest or principal of any such bonds. The defendants are the mayor and council of Hagerstown, the board of street commissioners, and the tax collector. A contract was made in November, 1895, between the board of street commissioners of Hagerstown and Powell Evans for lighting the streets avenues, and highways of that city with electric light for the period of five years from January 1, 1896, with a provision for renewal for another five years, which we will have occasion to consider. The Hagerstown Railway Company of Washington County, Md., is alleged to be the assignee of that contract, and is one of the complainants. It is averred in the bill that the company has done all that was necessary to entitle it to a renewal of the contract for five years from January 1, 1901, and that it had applied for such renewal to the board of street commissioners, who had declined and refused to renew it. An act was passed in 1898, being chapter 381 of the Laws of that year, giving the corporation power to issue bonds "for the purpose of establishing or assisting in establishing a plant in Hagerstown to be used for the purpose of generating electric power to supply light and power, or either of them, to the citizens of Hagerstown"; and then chapter 75 of the Laws of 1900 was passed, authorizing the corporation of Hagerstown to establish a municipal plant. The latter law is alleged by the appellants to be invalid on several grounds. The first of these which we will consider is its title, which is "An act to provide for the establishment of an electric light plant in Hagerstown, Maryland." The provision of article 3, § 29, of the constitution, that "every law enacted by the general assembly shall embrace but one subject and that shall be described in its title," has been before this court as frequently as any in that instrument. In Davis v. State, 7 Md. 151, in which a similar provision in the constitution of 1851 was before the court, its object was said to be to prevent "ingrafting upon subjects of great public benefit and importance, for local or selfish purposes foreign, and often pernicious, matters" and to enable the members of the legislature to know from the title the character of the legislation proposed. In State v. Norris, 70 Md. 91, 16 A. 445, it was said: "The objects designed to be obtained by the constitutional provision are twofold: The first is to prevent the combination in one act of several distinct and incongruous subjects, and the second is that the legislature and the people of the state may be fairly advised of the real nature of pending legislation." In the case first cited the title was "An act regulating inspections in the city of Baltimore," and in the latter "An act to add a new section to article 30, of the Code of Public General Laws, title 'Crimes and Punishments,' sub-title 'Rivers,' to come in after section one hundred and seventy-one." In each instance the title was held to be a sufficient compliance with the constitutional provision, although the subject of the act before the court in the last case was the prevention of dredging, taking, and carrying away of sand and gravel from the bed of the Potomac river, and prescribing the punishment for its violation. Judge Alvey, in delivering the opinion, said: "Many acts are passed, and often of great importance, the titles of which are exceedingly deficient in definite and clear description of the subject-matter of the act. But this court has ever been reluctant to defeat the will of the legislature by declaring such legislation void, if by any construction it could possibly be maintained." So, in State v. Fox, 51 Md. 412, a title which read, "An act to add an additional article to the Code of Public Local Laws, to be entitled 'Garrett County' "; and in Mayor, etc., of City of Baltimore v. Keeley Inst., 81 Md. 106, 31 A. 437, one reading "An act to provide for the treatment and cure of habitual drunkards,"--were sustained. In the former, among other things, the act declaring it to be a felony to knowingly enter upon the lands of another, and cut down, without his permission, timber of certain sizes, with intent to appropriate it to the use of the party so entering; and in the latter case the act imposed the expenses of the treatment of the habitual drunkards on the city or counties, under the order of court. Many other instances could be furnished from the reported cases in this state of titles that have been upheld which are as indefinite and meager as those we have already mentioned. As a rule, those which have been held to be contrary to this provision were misleading, and calculated to lead the legislature and others to believe that one kind of legislation was proposed, while another was attempted to be enacted, which was not germane to the subject mentioned in the title. No one could read this title without knowing that it was proposed to authorize the establishment of an electric light plant in Hagerstown. But it is argued on the part of the appellants that it does not show that it was to be established by the municipality, as the provisions of the act contemplate. It cannot be doubted that the title could have been made more definite, and less liable to be questioned, by slight changes. If it had said "a municipal electric light plant," or, as seems to be conceded by the appellants, if it had read "by Hagerstown," instead of "in Hagerstown," it would have been sufficient. But there is nothing in the title to lead any one to believe that it was to be established by some private corporation, and not by the municipality. The worst that can be said of it is that it does not say by whom it was to be established. It certainly does not suggest any attempt to create a private corporation for that purpose, or to amend the charter of one already incorporated. In the first place, that is not the way that corporations are created or charters are amended, and, besides, there was in 1900 a general law, in force in Washington county, for the incorporation of electric light companies. Section 30, class 17, of article 23 provides "for the formation of gas light or electric light companies," and section 111 of that article, as amended by Act 1894, c. 308, gives corporations formed under that article "full power to manufacture and sell and furnish such quantities of electric light or electric power as may be required or desired in any city or town of Kent, Talbot, Somerset, Carroll, Montgomery or Washington counties, of this state, in which or adjoining which the same may be located, for lighting the streets, roads, public or private buildings, or for motive power or for other purposes." Section 33 of article 3 of the constitution provides that "the general assembly shall pass no special law for any case for which provision has been made by an existing general law," and section 48 of same article provides that "corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes, and except in cases where no general law exists, providing for the creation of corporations of the same general character as the corporation proposed to be created; and any act of incorporation passed in violation of this section shall be void." The legislature, therefore, had no right to create in 1900, by special act, a corporation in Washington county to establish an electric light plant, but it did unquestionably have the authority to authorize the municipality of Hagerstown to do so. When, then, it did have before it "An act to provide for the establishment of an electric light plant in Hagerstown, Maryland," was it not a fair presumption that it was proposed to give the authority to the municipality? Would any one, with the knowledge of the existing law (and the members of the legislature and others are presumed to have knowledge of it), be misled into the belief by the wording of that title that it was not the municipality that the authority was to be given to? Even if it be conceded that it was possible to give some other corporation or some individual the power to establish an electric light plant there under such a title, would it not be notice to the legislators and the public that an act was pending, which presumably was intended to confer upon the municipality the right to establish an electric light plant, and to call upon them to inquire into it if they thought proper to do so? If it be a sufficient compliance with this requirement that an act be entitled "An act to amend article 95 of the Code of Public General Laws by adding...