State ex rel. Webster v. County Commissioners , 29 Md. 516 ( 1868 )

*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,

2nd. 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 secs. 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 sec. 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Law; and belongs to the same classification of statutes as those sections of Art. 3 of the Code .of Public Local Laws, repealed by it. And if the sections of the Public Local Laws, thus repealed, were constitutional and operative since the adoption of the Constitution, *it is difficult to perceive why this Act of January Session, 1868, substituted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 tinder 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 prescribed 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 Public General Law of .the State, and the Public Local 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 sec. 156, and sub-sec. 2 of sec. 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 sec. 40 of Art. 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 to be brought into question, “ that where a Statute has been passed by the Legislature, under all the forms and sanctions requisite to the making of laws, some part of which is not within the competency of legislative power, or is repugnant to any provision of the Constitution, such part thereof will be adjudged void and of no avail, whilst all other parts of the Act, not obnoxious to the same objection, will be held valid, and have the force of law. There is nothing inconsistent, therefore, in declaring one part of the same Statute valid, and another part void.” Fisher v. McGirr, 1 Gray, 21; Regents v. Williams, 9 G. & J. 365.

2. The next question is, as to the time having expired within which an election for District Supervisors was required to be ordered.

*By the Act, it is provided, that “ the County Commissioners of Baltimore County, within twenty days after the passage of this Act, shall order an election in each of said primary road districts, having first given two weeks’ notice, &c., for five supervisors of roads and bridges, to hold their office for five years, and be re-eligible.” And upon this provision of the Act it has been gravely contended, that as the time within which the election was directed to be ordered by the commissioners has passed, they now have no power in the premises, and that therefore the whole object of the law must fail, and the Act itself become inoperative and void.

To this position of the appellees we cannot assent. That it should be in the power and election of subordinate ministerial or executive officers, by refusing to obey the law, to defeat and nullify it, is a proposition too startling to be favorably entertained in a court of justice. And to prevent such a result being effected, where the duty prescribed is of a public nature, and intended for the public benefit, and is directed to be performed within a specified time, courts have adopted as a general rule in the construction of Statutes, that they are, in respect to the time, to be regarded as directory merely, unless, from the nature of the act to be performed, or the language employed in the Statute, it plainly appears that the designation of time was intended as a limitation of power of the officer. People v. Allen, 6 Wend. 486. “ There is,” said Lord Mansfield, in Rex v. Loxdale, 1 Burr. 447, “ a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory. The precise time in many cases is not of the essence.” And there are many cases observing the same distinction.

In Pond v. Negus, 3 Mass. 230, where a Statute required the assessors to assess a tax within thirty days after the vote of the tax was certified to them, it was held that the designation of the time for the assessment was to be considered as simply directory to the assessors, .^and not as a limitation of their ^authority. And so in Gale v. Mead, 2 Denio, 160, where a Statute required a tax to be assessed, and a proper tax list to be made, with a warrant attached thereto, by trustees, within thirty 'days after the district meeting in which the tax should be voted, the Statute was held to be simply directory as to time.

In the case before us, it is not apparent, thát the power to order the election might not as well be exercised after the lapse of twenty days from the passage of the Act, as within that time; the great object of the Act, in-this respect, appear-? ing to be to secure a speedy execution of the law rather than to impose a limitation upon the action of the commissioners.

The Act, in respect to this power, being merely directory, it was clearly no ground, as it has been repeatedly held, for refusing the application for the writ of mandamus to command the execution of the power, ■ that the period of time designated in the Act had expired. Indeed, no application could have been entertained until default committed by the defendants. Tapp, on Mand. 290; Queen v. Improvement Co. 8 A. & E. 911.

In Rex v. Justices of Derbyshire, 4 East, 142, the magistrates, whose duty it was to appoint a surveyor of highways, upon proper lists returned to them, omitted to appoint such surveyor at their first special session after Michaelmas quarter sessions, as directed by the Stat. 13, Geo. III. c. 78, and they declined or neglected to make the appointment at the subsequent sessions. Upon application for the writ of mandamus to command the appointment to be made, and the suggestion in the argument that the time had elapsed within which the power was directed to be exercised, Lord Ellenborough, C. J., said: “ This part of the Act is only directory to the magistrates to make the appointment at the time mentioned; but there are no negative words to prevent them from exercising their office in that respect at any subsequent time, if it shall be necessary. And common sense requires, that if the appointment be not made at the first special sessions, it should be made afterwards.” And the rule for the writ was accordingly made absolute.

*That case would seem to be ample authority for the present application. But it has been contended that a different rule has been established by cases decided in our own Court of Appeals; and Ellicott v. Levy Court, 1 H. & J. 360; Kerr v. State, 3 H. & J. 560; State v. Merryman, 7 H. & J. 79; and Com’rs of Public Schools v. Com’rs of A. Co. 20 Md. 439, have been referred to as authorities upon the subject. We have examined those cases, and think they are not authorities to sustain the position for which they were cited. They are instances where the time prescribed was intended to be a limitation upon the power of the officers. That, as we have said, is not the case here.

We must, therefore,' reverse the order appealed from, and award a procedendo, that the court below may proceed further in the premises, and order the writ according to the prayer of the petition.

Order reversed and procedendo awarded.