Weller v. Mueller
| Decision Date | 30 April 1913 |
| Parties | WELLER et al. v. MUELLER et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; N. Charles Burke Judge.
Suit by John Lee Mueller and others against O. E. Weller and others. From an order overruling demurrer to the bill, the defendants appealed. Reversed and remanded.
Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Leon E Greenbaum, of Baltimore, for appellants. Elmer J. Cook, of Towson, for appellees.
By chapter 141 of the Acts of 1908, which created the state roads commission and authorized a $5,000,000 road loan, the commission was given the power and charged with the duty "to select, construct, improve and maintain such a system of improved state roads and highways as can reasonably be expected to be completed with the funds" provided by the act "in and through all the counties of this state." There was a provision that the amount available for actual construction work should be appropriated and used in the several counties in proportion to their existing road mileage. The original loan proving insufficient, the act of 1912 (chapter 370) was passed, authorizing an additional loan of $3,170,000 "in order to complete the construction of the state public roads as provided" in the act of 1908. It is enacted that the proceeds of the second loan shall be used for the purposes set forth in the earlier statute, and that the commission shall "appropriate and use in the several counties of the state of Maryland $2,000,000, of which three hundred thousand ($300,000) dollars shall be apportioned and used promptly in Baltimore county, one hundred and fifty thousand ($150,000) dollars of which shall be promptly expended on the Baltimore and Yorktown turnpike road, beginning at the city limits and extending as far north on said turnpike as said one hundred and fifty thousand ($150,000) dollars will properly build said road, and in the city of Baltimore six hundred and twenty-five thousand ($625,000) dollars, of the funds arising from the bond issue herein provided in the same proportion as provided for the expenditure of a state roads loan created by chapter 141 of the Acts of 1908, it being the intention of this act to provide for the additional sum of $2,625,000 to be used in the furtherance of the purposes for which the state roads commission was created, and in the same manner as the state roads loan of five million dollars ($5,000,000) created by chapter of said act." The remaining $545,000 of the new fund was appropriated for purposes which need not be stated.
It is with the appropriation in the act of 1912 of the fund for use in Baltimore county that this proceeding is concerned. The plaintiffs are residents and taxpayers of that county, and they sue not only for themselves but on behalf of all others similarly interested. The bill was filed in the circuit court for Baltimore county, and the defendants are the state roads commission, one of whose members resides in that jurisdiction. It is charged in the bill that the defendants are about to divert and spend in the construction of roads in other counties approximately $100,000 of the amount directed by the act of 1912 to be appropriated and used in Baltimore county; the commission claiming that the latter county had received about $100,000 more than its share of the $5,000,000 road loan authorized by the act of 1908. The bill states that the plaintiffs have no knowledge as to whether or not this claim of the defendants is correct; but it is averred that, even if it be true that more than the amount allotted to Baltimore county out of the former loan was expended in that county by the defendants, they were acting within their powers in so doing, under the terms of the act of 1908, and that in any event the proposed diversion from Baltimore county of approximately $100,000 of the $300,000 apportionment, for any purpose whatever, is wholly illegal, and will result in irreparable injury to the plaintiffs and other taxpayers of that county. The relief prayed for is that an injunction be issued restraining the commission "from expending any portion of the $300,000, provided for Baltimore county in the act of 1912, anywhere except in Baltimore county," and "from appropriating or expending any portion of said $300,000 for the purpose of paying for any work heretofore done by the defendants, as roads commission, in Baltimore county or elsewhere or for any other purpose than road building in Baltimore county."
The defendants questioned by demurrer the jurisdiction of the court and the sufficiency of the bill. The jurisdictional objection was based in part upon the ground that the state roads commission is an agency of the state and a quasi corporation, with its principal office established in Baltimore city, and that it does not carry on any regular business or exercise its franchises in Baltimore county, where the suit was instituted. It is contended that the residence of one of the members of the commission in Baltimore county, and the fact that the fund in controversy was appropriated for road construction there, cannot bring the case within the judicial cognizance of the circuit court for that county. The theory of the defendants is that they can be sued as a state commission only at the seat of the state government, or in Baltimore city where its principal office is located. It is further objected that the plaintiffs have no such interest in the subject-matter of the litigation as entitles them to maintain the suit. Upon the question as to the sufficiency of the bill, it is urged that the act of 1912, when construed in the light of the previous legislation to which it refers, fully justifies the action of which the bill complains. These objections were not sustained by the court below, and from its order overruling the demurrer the defendants have appealed.
By the act of 1910 (chapter 217), which transferred to the state roads commission the powers and duties formerly reposed in the state geological and economic survey, including the co-operation with the counties in road improvements undertaken by them on their own initiative or at the instance of abutting landowners, it was provided that: "The circuit court of any county where the powers conferred upon the state roads commission or its predecessor have been or are about to be exercised shall have original jurisdiction of any cause of action or complaint which may be brought by the state roads commission, the county commissioners for such county, or any person or corporation aggrieved, for violation or contemplated violation of any of the provisions of this subtitle or contract thereunder with respect to any road or roads within such county; and process against said state roads commission may be served upon any member or officer of said commission." This provision is now a part of section 78 of article 91 of the Annotated Code of 1912, but was originally enacted as an amendment to section 45 of the same article of the Code of 1904. While this section deals particularly with a different class of road improvements from those to which the fund here in dispute is applicable, it nevertheless refers in terms to suits for the violation of any of the provisions of the subtitle under which it is codified with respect to any road or roads within the county. At the time of the amendment and re-enactment of this section in 1910, the other statutory provisions defining the powers and duties of the defendants in relation to the construction of a general system of...
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