State ex rel. Edwards v. Hall , 22 Md. 322 ( 1864 )

Cochran, J.,

delivered the opinion of this Court.

This suit was brought on a bond to the State, executed on the 12th of May 1860, by William Hall, with the other appellees as sureties, by which he became bound to appropriate, as directed by law all moneys he should receive as Superintendent of that part of the United States’ Road lying within the limits of the State of Maryland — the appeal having been taken from a judgment overruling a demurrer to the 1st, 2nd, 3rd, 4th and 6th pleas of the appellees.

The disposition of the case depends on the construction of the Act of 1881, ch. 85, and the subsequent Congressional Act of 1832, ch. 153. It was conceded on both sides that these Acts constitute a compact between the State of Maryland and the United States, the object and purpose of which was to transfer to the care of this State, that portion of the National Road within its limits, on the undertaking of the State to preserve and keep the same in proper repair. The appellees, however, go further and insist, as in effect they have pleaded, that the special agencies and means proposed in the Act of 1831, for keeping the road in repair, are subject-matters of the compact, and therefore not within the power of either party to modify or change them without the consent of the other. On this ground, they assumed that the Act of 1852, ch. 129, which directs the payment of the sum of money sought to be recovered in this case, operates as an infraction of the compact; and the demurrer to their first plea, held to be sufficient by the Court below, raises the question as to the constitutionality of that Act. Other subordinate questions are presented by the several pleas which we shall notice in their order.

The rule proper to be observed in construing the Legislative and Congressional Acts of 1831 and 1832 for the purpose of ascertaining the nature and extent of the compact entered into, was very clearly enunciated by the Supreme Court in Seawright vs. Stokes, How., 151, and Neil, Moore & Co. vs. State of Ohio, Id., 120. In delivering the opinion of the Court in the first of these cases, the late Chief Justice said, that in interpreting such a contract as that presented by these Acts: “The character of the parties, the relations in which they stand to each other, and the objects they evidently had in view must all be considered;” that “the true meaning and intention” of the parties would hardly be carried out if the contract were “treated as one between individuals bargaining with each other, with adverse interests,” and subject to the “same strict and technical rules of construction as were appropriate to cases of that description.” Here, as there, the United States and a State were the contracting parties, neither interested adversely to the other, and both moving with the common purpose of advancing and subserving the general interest and convenience of the public. Looking, then to the question before us, from the stand-point prescribed by these considerations, and taking the rule above stated for our guide, there is scarcely room to doubt that the whole matter contemplated by Congress and the Legislature in the passage of these Acts as the subject of compact, was the preservation and repair of that part of the National Road within the limits of this State, by imposing tolls sufficient for that purpose, reserving the privilege of free transportation for the mails and property of the United States. This was the substantial end proposed by the Act of 1831, and in view of the general public interest represented by Congress, it is reasonable to suppose that it was assented to for the purpose of realizing that result, without intending to restrict the State to the special agencies provided by the Act for securing it; and more especially would this appear to be the true relation of the high contracting parties, when we come to consider that a literal compliance with the terms of the Act might not effect, or would operate to defeat the purpose intended. The proper care and repair of the road by the imposition of tolls was the end to be obtained, and in view of that purpose, it would seem scarcely possible to maintain, successfully, that the Superintendent could contract no debt for repairs on the credit of future tolls, because he was not specially authorized by the terms of the Act todo so. Suppose on that construction of his powers, that upon the exhaustion of the tolls in hand by repairs at any given time, the road should then become impassable, by injuries from sudden freshets or floods, requiring extensive and costly repairs to fit it again for travel, a case would be presented where the Superintendent would be bound to contract debt on the credit of tolls to accrue, or permit the main purpose of the compact to fail; for if the road were to continue impassable, no tolls would be collected, and without tolls there could be no repairs. The opinion we have indicated finds some support in a provision contained in the Act itself. A clause found in the 13th section declaring “that no change, alteration or amendment shall be adopted, that will in any wise defeat or affect the true intent and meaning’ ’ of the Act, clearly implies power on the . part of the Legislature to adopt any measure consistent with and in furtherance of that ‘intent and meaning;” and that, as we understand it, was the character and design of the Act of 1852, the sole purpose of which was to set apart and appropriate a portion of the accruing tolls to the payment of the debt for previous repairs and expenses incident to the management and preservation of the road. In view of the peculiar nature and circumstances of the case, we have no hesitation in expressing the opinion that the compact established by the Acts in question was not violated by the Act of 1852. And we may further add in this connection that the latter Act, in providing for, and directing the payment of the debt found by the Legislature to be due from the road presents all the essential characteristics of a private Act; and that in vesting the administrator of Swan with the right to demand and have payment of the debt so found to be due, it vested a right which under the Code, Art. 1, sec. 1, was not impaired by the Act of 1860, adopting the Code. For this reason also, the lO’Ith and 111th secs, of Art 1, of the Code of Public Local Laws, relied on in the 6th plea, must be construed and held to take effect subject to the provisions of the Act of 1852, without regard to the amount of compensation thereby allowed to the Superintendent and toll gatherers, or other directions therein given as to the use to be made of the tolls. The necessary conclusion from these views is, that none of the matters pleaded in the 1st, 2nd, 3rd and 6th pleas were sufficient to bar the appellant of his right of action.

The question raised by the demurrer as to the sufficiency of the 4th plea, is of a somewhat different character. Like the other pleas this is a special one in bar of the right of action stated in the declaration; that is of the right to recover on the alleged breaches of the condition of the bond declared on, occurring between the 12th of May 1860, the date of the bond, and the 18th of September 1861, when the suit was brought. The special matter alleged in this plea is, 1st. that by the terms of the Act of 1831, the bond declared on was an annual bond, on which no action could be maintained for breaches occurring after the 12th of May 1861, although the terms of the condition would bind the appellee, Hall, to appropriate all tolls received by him as directed by law, without regardNo the time of receiving them; and 2nd. that the Act of 1852, directing a portion of the tolls to be paid to the appellant, was a violation of the compact and void, and for that reason that no action could be maintained for breaches of the condition'occurring between the 12th of May 1860, and the 12th of May 1861. As these propositions are presented, it is scarcely necessary to say that it is material that both of them should be sustained as matter of law, to constitute the plea a good one. It cannot he pretended that the first by itself, would operate as a bar to the right of action stated in the declaration, and the failure of the last, which in fact we have already decided, necessarily renders the plea defective. It must be observed that the question raised by the demurrer goes to the suificiency of the plea as a whole, and that we are required to decide nothing more. In our opinion, the demurrer to all the pleas should have been sustained and judgment entered thereon for the appellant; hut as an inquisition for the assessment of damages will he necessary, we shall, as was done in the case of Neale vs. Clautice, 7 H. & J., 372, remand the cause under a proce-dendo.

(Decided November 25th 1864.)

Judgment reversed, and procedendo awarded.