State v. Baltimore County Com'rs

• Decision Date: 15 December 1868
• Citation: 29 Md. 516
• Parties: THE STATE OF MARYLAND, ex relatione, WILLIAM WEBSTER, and others, v. THE COUNTY COMMISSIONERS OF BALTIMORE COUNTY.
• Court: Maryland Court of Appeals

29 Md. 516

THE STATE OF MARYLAND, ex relatione, WILLIAM WEBSTER, and others, v. THE COUNTY COMMISSIONERS OF BALTIMORE COUNTY.

Court of Appeals of Maryland

December 15, 1868

APPEAL from the Circuit Court of Baltimore County.

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

Henry P. Brooks and Levin Gale, for the appellant:

The Act of 1868, chapter 411, is constitutional. Constitution of 1851, Art. 7, sec. 8; Constitution of 1864, Art. 3, sec. 32; Constitution of 1867, Art. 3 sec. 33, Code of Pub. Gen'l Laws, Art. 1, sec. 11; Smith on Stat. Construction secs. 797, 802-3-5-8; Sedgwick on Stat. Con., 32, 33, 34; Pierce vs. Kimball, 9 Greenl., 54; 5 Mass., 268.

If any of the sections of the Act are inconsistent with the provisions of the Constitution, the whole Act is not thereby destroyed, but remains in force and effect as to its main design. Regents of the University of Md. vs Williams, 9 G. & J., 389; Davis vs. State, 7 Md. Rep., 160.

The refusal of the commissioners to obey the law within the time named in it for the holding of the election to carry out the provisions of the law, does not deprive the Court of its power and jurisdiction to compel them to perform their duties. Tapping on Mandamus, 10, 11, 63-67-106-184-339-340; King vs. The Justices of Derbyshire, 4 East., 142; Milburn vs. State, 1 Md. Rep., 17, 18; Young vs. State, 7 G. & J., 264; U.S. vs. Speake, 9 Cranch, 28; U.S. vs. Kirkpatrick, 9 Wheat., 720; U.S. vs. Vanzandt, 11 Wheat., 184; People vs. Supervisors of Chenango, 4 Seldon, 330; People ex rel. Van Demark vs. Comm's of Excise, 7 Abbot's Prac. Rep., 36; People vs. Allen, 6 Wend., 486.

R. R. Boarman and Fielder C. Slingluff for the appellees:

The Act of 1868, chapter 411, is unconstitutional. Constitution 1867, Art 3, secs. 33, 40.

The powers of the County Commissioners, under Art. 28 of the Code of Public General Laws, are general and uniform; but the objects of those powers, and the manner of treating and effecting those objects, may be the subject of different legislation for the different counties; that is, the manner of enforcing those powers may be the subject of local and special laws; and, hence, while under sec. 33, Art. 3, of the Constitution of 1867, these general powers of the County Commissioners cannot be disturbed, yet local legislation may regulate the objects of those powers. Comm's Pub. Schools vs. County Comm's of Alleghany Co., 20 Md. Rep., 450; Moses on Mandamus, Title, " County Commissioners."

Again. The section 157, sub-section 2, of chapter 411 of the Act of 1868, conflicts with section 40, Art. 3, of the Constitution of 1867. This sub-section two constitutes a material part of the law, and the Court, in granting the mandamus, must suppose that all the essential provisions of the law of which it compels compliance, will be carried out. Hence, as this sub-section two is an essential part of the whole law, and is unconstitutional, the Court will not grant a mandamus to carry into effect a law, where, if granted, it would be nugatory. Tapping on Mandamus, 67; Comm's Pub. Schools vs. County Comm's Alleghany Co., 20 Md. Rep., 450; Booze vs. Humbird, 27 Md. Rep., 1.

The powers of the appellees, under chapter 411 of the laws of 1868, is a specially delegated power, and must be strictly construed; and the time for putting into effect the law having passed, the appellees have no power to order an election as therein prescribed. Ellicott vs. The Levy Court, 1 H. & J., 360; Kerr vs. The State, 3 Har. & J., 564; State, use Levy Court vs. Merryman, 7 H. & J., 564; Commissioners of Public Schools vs. County Commissioners of Alleghany Co., 20 Md. Rep., 450.

ALVEY J., delivered the opinion of the Court.

This is an appeal from an order of the Circuit Court for Baltimore county, refusing the writ of mandamus, and dismissing the application therefor.

The application was made to obtain the writ to be directed to the County Commissioners of Baltimore county, directing and commanding them to take the necessary steps to give effect to and put in force the Act of the General Assembly, passed at the January Session, 1868, ch. 411, in relation to the public roads of that county.

To this application the Commissioners filed their answer, and interposed as objections:

1st. That the Act sought to be enforced was unconstitutional and void, and consequently, imposed no duties upon them that they were bound to perform, and,

2dly. That if the Act was constitutional, the time had elapsed within which they were required to act under it, before the application for the writ of mandamus, and therefore the law had become inoperative, and of no effect.

1. We gather from the argument that the Act in question is supposed to be unconstitutional, because it conflicts with section 33 and 40 of Art. 3, of the Constitution of the State.

It is contended that the Act is a special law within the contemplation of section 33, of Art. 3, of the Constitution, and because provision had been made by an existing general law, for jurisdiction and control over county roads and bridges, it falls within the constitutional prohibition, and is therefore a nullity.

The great error of the argument, however, is in regarding this Act of 1868 as a special law. It is not a special law in any sense of the term, but is a Public Local Law, as distinguished from a Public General Law; and belongs to the same classification of statutes as those sections of the 3rd Article of the Code of Public Local Laws, repealed by it. And if the sections of the Public Local Law, thus repealed, were constitutional and operative since the adoption of the Constitution, it is difficult to perceive why this Act of January Session, 1868, substituted therefor, is not equally constitutional and effective. The section of the Constitution referred to by its first clause, inhibits the passage of local or special laws in certain enumerated cases; and in the next sentence also imposes an inhibition to the passage of special laws for any case for which provision has been made by an existing general law. The special laws here referred to constitute a class altogether different from the Public Local Laws to which the Act of January Session, 1868, belongs. The special laws contemplated by the Constitution, are those that provide for individual cases. Local laws of the class to which the Act under consideration belongs, on the other hand, are applicable to all persons, and are distinguished from Public General Laws, only in this that they are confined in their operation to certain prescribed or defined territorial limits, and the violation of them must, in the nature of things, be local. It is not therefore, by any means, necessary, in order to give a Statute the attributes of a public law, that it should be equally applicable to all parts of the State. All that is required to make it a public law of general obligation, is, that it shall apply to all persons within the territorial limits described in the Act. That is the character of the Act before us, and of that large portion of the Statute law of our State, comprised in the codified division under the title of "Public Local Laws." It could never have been the purpose of the Constitution to prohibit this species of legislation, except in the specially enumerated cases. On the contrary, we suppose it to be not only competent for, but the duty of the Legislature to provide by law for the local and peculiar exigencies of every portion of the State; and we know that the only practicable mode of doing this in many instances, is by local Acts. And with that view, the rule of interpretation as to the codified laws, is, that where the General Public Law of the State, and the Local Public Law of any county or city are in conflict, the Public Local Law is to prevail. The object of the provision of the Constitution relied on, was to prevent the abuses that occurred in the great multiplicity of legislation for particular and individual cases, and not to prevent legislation to meet the wants of communities less extensive in their territorial limits than the State.

It is contended, however, that section 156, and sub-section 2 of section 157, of this Act of 1868, are repugnant to the Constitution, because they provide a different mode for assessing compensation for private property that may be taken for public purposes, than is prescribed by section 40 of Article 3, of the Constitution, before referred to; and that, therefore, the Act cannot be enforced and made effective.

Whether such portions of the Act be constitutional or not, we deem it wholly unnecessary to decide in this case. It will be time enough to examine and determine that question when it properly arises in the execution of the law. It may, indeed never arise. But if it were conceded that these particular provisions of the Act were unconstitutional, it would not follow, necessarily, that the whole Act would therefore be void. The other provisions of the Act are capable of enforcement, independently of the sections supposed to be repugnant to the Constitution; and it is now too well settled...