Fout v. County Commissioners

The appellants, on the 22nd day of December, 1906, filed a petition in the Circuit Court for Frederick County praying that the writ of mandamus be issued against William H. Hogarth, Lewis H. Bowlus, Lincoln G. Dinterman, H. Milton Kefauver, and Daniel G. Zentz, the County Commissioners of that County, commanding them, as such commissioners, to give the notice to the Chief Engineer of the Geological and Economic Commission and make the request of said commission, as required by sec. 2 of the Act of 1904, ch. 225, of the General Assembly of Maryland, for plans and estimate of the cost of the proper performance of the work required, according to said plans and specifications, for the construction and repair of a section of public road described in a petition filed with said County Commissioners on the 5th day of November, 1906.

It appears from an examination of the petition, which was filed with the commissioners, and which was also filed as an exhibit in this case, that the appellants were proceeding under sec. 2 of the Act of 1904, ch. 225, to have a section of public road located in Frederick County, constructed and repaired under the provisions of that Act. It was not denied at the argument that the appellants would be entitled to the writ, if, at the hearing, the facts alleged by them in the petition for the writ were satisfactorily established by the proof; provided sec. 2 of the statute to which we have referred is valid and operative. This could not well be denied since the Act declares it to be the imperative duty of the commissioners to make the request directed by that section of the statute when the requirements thereof have been fully complied with.

All the necessary and essential jurisdictional averments, upon which under the terms of the Act the relief prayed for depends, are set out in the petition of December 22d 1906, which show a strict compliance with all the requirements necessary to be observed when action is taken under the second section of the Act. An answer was filed by the Commissioners of Frederick County to the petition which contained a traverse of many of the essential facts alleged in the petition, but with these issues of fact we are not concerned. The answer avers (a) that the Act of 1904, ch. 225, is unconstitutional and void; (b) That so much of said Act as provides for involuntary action by the commissioners for the construction and repair of public roads is unconstitutional and void; (c) That the Court was without jurisdiction in the premises. By appropriate pleading the legal questions raised by the answer were presented to the Court for its determination, and on the 10th day of January, 1907, the Court passed an order dismissing the petition for the writ ofmandamus, and from that order this appeal was taken.

Two grounds are relied upon by the appellees to sustain the order of the lower Court, first, the unconstitutionality of the second section of the Act of 1904, ch. 225; and secondly, because, it is contended, the provisions of that section are inoperative, being nullified by later and repugnant provisions of the same Act. This repugnancy, it is asserted, is found to exist between the second and fifteenth sections of the Act, and is claimed to be of such a character the section 15 must be held to have nullified and rendered inoperative the provisions of section 2.

There are certain general considerations which must not be overlooked by the Court when it is asked to strike down a legislative Act. They have been stated by the Courts in a multitude of cases, but no where have they been stated with greater clearness and accuracy than by Mr. Cooley in his work on Constitutional Limitations in which it is said: "It must be evident to anyone that the power to declare a legislative enactment void is one which the Judge, conscious of the fallibility of human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government, of equal dignity. Each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers of government, but it does not make anyone of the three departments subordinate to the other, when exercising the trust committed to it. The Court may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the Constitution as the paramount law, whenever a legislative enactment comes in conflict with it. But the Courts sit, not to review or revise the legislative action, but to enforce the legislative will; and it is only where they find that the Legislature has failed to keep within the constitutional limits that they are at liberty to disregard its action; and in doing so, they only do what every private citizen may do in respect to the mandates of the Courts when the Judges assume to act and to render judgments or decrees without jurisdiction."Cooley's Con. Lim., 3 ed. 175.

The Court cannot declare an Act of the General Assembly to be unconstitutional, because it is unwise, or inexpedient, or because it displaces or supersedes wiser and better laws regulating the same subject. These matters are committed to the judgment of the law making power, and its action in respect to them is not reviewable by the Court. If therefore it be true, as contended by the appellees, that the second section of the Act of 1904, chapter 225, be an unwise provision, and would operate harshly upon the people of Frederick county, this Court cannot upon that ground set it aside, but resort must be had for redress to the General Assembly for its repeal or modification. Every presumption favors the validity of the statute; it cannot be stricken down as void unless it plainly contravenes some provision of the Constitution; a reasonable doubt as to its constitutionality is sufficient to sustain it; the party assailing the Act must point out the special provision of the Constitution to which it is obnoxious.

The specific objection to the second section of the Act under consideration is that it violates section 29 of article 3 of the Constitution. That section provides: "That every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title." It may be assumed as settled that the purpose of this provision is; "First, to prevent HodgePodge, or "log rolling" legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles give no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third to fairly apprise the people, through such publication of legislative proceedings as is usually made, of subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire." Cooley's ConstitutionalLimitations, 3rd Edition 158.

The general disposition of the Courts has been to give a liberal construction to this provision of the Constitution, rather than to embarrass legislation by a construction whose strictness is unnecessary to render effective the purposes for which it was adopted. It is stated by JUDGE COOLEY that the general purpose of this provision of the Constitution is accomplished when the law has but one general object, which is fairly indicated in its title; and that to require every end and means necessary or convenient for the accomplishment of this general object to be provided for, by a separate Act relating to that alone, would be not only unreasonable, but would render legislation impossible. This Court has had occasion to pass so frequently upon this provision of the Constitution that its purpose and meaning may be assumed to be well understood and thoroughly well settled. The difficulty in this, as in other cases, is found to exist in the application of the settled rule to the particular case. There must be unity in the subject matter of the Act, but "if the several sections of the law refer to and are germane to the same subject matter, which is described in its title, it is considered as embracing but a single subject, and as satisfying the requirements of the Constitution in this respect."Mayor, c. v. Reitz, 50 Md. 579. The title is sufficient if it fairly indicates the subject matter of the enactment. These rules of construction have been stated and applied by this Court in every case in which it has been called upon to consider this section of the Constitution, from the case of Davis v. TheState, 7 Md. 151, decided in 1854, in which the question was before the Court for the first time, to the case of Mayor, c. v. Flack, et al., 104 Md. 107, decided October 4, 1906, and in all of the cases it is held that the title need not contain an abstract of the Act; nor mention the means or methods by which it is to be carried into effect; nor will an Act of a general nature be declared obnoxious to this clause of the Constitution, unless there be engrafted upon it some subject of a private, or a local character, or unless two or more dissimilar and discordant subjects be legislated upon in the same law. If foreign, irrelevant, or discordant subjects are introduced they will be rejected, if other sections of the law can stand without them.

We will now examine the Act of 1904, chapter 225 to see if in its title, or in any of its provisions it violates any of these rules of construction by which its constitutionality is to be tested. It is a general public law. Its title is: "An Act for the improvement of the public highways of the State, and to provide the means therefor and to require the commission created by an Act of the General Assembly of 1896, chapter 51 to perform certain additional duties." The Commission created by the Act of 1896, chapter 51, upon which additional duties are imposed, is the State Geological and Economic Survey, which is placed by law under the direction of the Governor, the Comptroller, the President of the John Hopkins University, and the President of the Maryland Agricultural College.

The Act we are called upon to consider contains eighteen sections. The first section provides the conditions under which the Board of County Commissioners of any county in the State may of their own volition petition the commission for plans and estimate of costs for the construction and improvement of roads in their respective counties. This is the voluntary feature of the law, and its validity is not questioned; the second section, which is called the involuntary feature, and which is directly assailed as void, is here transcribed.

Sec. 2. "And be it enacted, That whenever the owners of two-thirds of the lands binding upon any public road or section of road, not less than one mile long, shall present a petition to the County Commissioners of the county where such road, or section of road, may be situated, stating in said petition the desire of said petitioners to have said road, or section thereof, constructed or repaired under the provisions of this Act, and stating further the willingness of said petitioners to pay for such construction or repairs, a sum equal to ten per centum of the cost of such construction or repairs; it shall be the duty of said Board of County Commissioners to make such a request to the commission delegated by this Act, as set forth in section one hereof, upon the payment by said petitioners of said ten per centum, or the giving by them of an approved bond to the County Commissioners for the payment thereof at any time it may be demanded by said County Commissioners upon the filing of a similar petition, and the taking of similar proceedings regarding the extension of any road, which in the opinion of said commission, has been properly improved, a similar request shall be made to the aforesaid commission by the Board of County Commissioners in the county where such extension lies, even though such proposed extension be less than a mile in length."

Section 3 provides that if the commission after the receipt of the notice from the Board of County Commissioners, as provided in section 1, and section 2 of the Act, and after due examination, shall be of opinion that the proposed construction, or repair of roads mentioned in such notice would be generally promotive of the objects therein contemplated, and that such road or proposed road is a right and proper one to be built, and if there shall be sufficient money from the State appropriation to the credit of the county for the necessary outlay, it shall make the plans and specifications for the proposed work, and shall furnish an estimate in detail of the cost of doing the work.

Section 4 relates to the character of material of which the road must be constructed or repaired; section 5 to the payment by the county of the cost of surveys, mapping, printing, c., proper to be done in the preparation of the plans and specifications and estimate of cost; section 6 to the advertisement for bids for doing the work, but it is expressly provided that the County Commissioners will not be required to advertise for work to be done under the provisions of section 2 of the Act to an amount greater than twenty-five per cent of the road levy of the county; section 7 to the opening of bids and the awarding of the contract; sections 8 and 9 relate to the approval of the contract by the commission and its supervision over the work; section 10 relates to the completion of the work and the payment by the Comptroller to the county of one-half of the total cost of the work; section 11 provides that the State shall not be liable for the cost of acquiring land for any roads, nor for damage caused by the construction or improvement of any road; section 12 provides for the apportionment among the counties of the sum appropriated by the Act; section 13 makes minute provision for the maintenance of the roads constructed under the Act; section 14 makes provision for any county in which the control of the public roads is, or may be vested in any body other than the Board of County Commissioners.

Section 15, which is said to be repugnant to section 2, is as follows: "That nothing in this Act shall be taken to alter, abridge, or in any way affect the present method of road construction or repair by the several counties, at their ownexpense or otherwise, as now authorized by law."

By section 16 the sum of two hundred thousand dollars annually, or so much thereof as might be necessary is appropriated, out of any money in the Treasury not otherwise appropriated, for the purpose of carrying out the provisions of the Act. Section 17 declares that the provisions of the Act shall be regarded as adding, to such an extent as may be necessary, to enable it to perform the additional duties hereinbefore imposed upon it, to the powers and duties conferred upon said commission by the Act of 1898, chapter 454; section 18 provided that the Act should go into effect January 1st, 1905.

From this examination of the several sections of the Act, which has become to be known as the Shoemaker Road Law, because of the interest taken by Mr. Samuel M. Shoemaker, of Baltimore County, to secure its adoption and retention on the statute books, it is manifest that the sole purpose or object of the Act is the building of good roads in all parts of the State, and as a means to that end to permit the State, under carefully provided safeguards designed to secure the best possible results, to contribute annually for that purpose the sum of two hundred thousand dollars. Most careful and well considered provisions are made to exclude favoritism, jobbery, and dishonesty, and to insure the application of business principles to the work to be done under the law.

The Act is exactly what its title declares it to be — an Act for the improvement of the public highways in the State. All its provisions relate to and are inseparably connected with that subject, and with none other. There is no foreign, irrelevant, or dissimilar subject introduced, and it may well be declared to embrace but one subject. Its title, we think is sufficiently exact, definite, and comprehensive to cover the subject of the Act, and to sufficiently apprize the Legislature and the people of the proposed legislation. Sections 1 and 2 of the Act merely prescribe the methods or conditions under which request may be made to the commission for plans and specifications and estimate of the cost. These methods and provisions are not required to be set out in the title of the Act.

The County Commissioners have no just grounds of complaint because the Legislature imposes upon them the duty, under the provisions specified in the Act, to make the request for plans, specifications, c., as directed, since they have no powers or duties except such as may be prescribed by law, and if the General Assembly, which invested them with authority over the county roads, sees fit to withdraw or modify that authority, or imposes new and additional duties upon them with respect to the public highways, they cannot be heard to complain. It is their duty to obey the mandate of the law. The Legislature did not intend to make the operation of the Act dependent solely upon the will of the Boards of County Commissioners. If through shortsightedness or antipathy to the law on the part of said boards they will not avail themselves, when they ought to do so, of the co-operation of the State in the improving of the public roads, the Act makes provision by which the taxpayers may coerce them to action. It has likewise provided checks and restraints for the protection of the county against unwise, unnecessary, wasteful, or improvident expenditure of public money under the involuntary feature of the law. It by no means follows that the road petitioned for under the compulsory provision of the Act must be constructed or repaired. The State Commission is charged with the duty of making due examination into the facts, and it must be satisfied that the proposed construction, or the repair of the roads would be generally promotive of the purposes contemplated by the Act, and that the proposed road is a right and proper one under the circumstances to be built. The personnel of the tribunal to which the State has committed the decision of these matters would seem to afford a guarantee against apprehended abuses. All proper objections by the County Commissioners, or others interested would be heard by it, as to the propriety of building, or repairing the roads, and it is safe to assume that it would take no action which would result in injury to the general taxpayers of the county.

We cannot adopt the construction of this Act, insisted upon by the appellees, which finds an irreconcilable conflict between sections 2 and 15. That construction would frustrate the evident intent of the Legislature as gathered not only from the purposes of the enactment, but from the plain words employed. This Act, as we have said, was passed for the improvement of the public roads of the State at the joint expense of the State and county, and it was not intended to affect the construction and repair of roads by the County Commissioners under the general laws upon the subject found in the Code, or under local laws prevailing in the several counties. In order that this might be placed beyond doubt, or question, the Legislature embodied in the fifteenth section an express declaration that the Act must not be taken to alter, abridge or in any way affect the present method of road construction, or repair by the respective counties, at their ownexpense, or otherwise as now authorized by law. This declared purpose of the General Assembly which would seem to be evident without such declaration, harmonizes all the sections of the Act, and preserves in full force and effect the second section which we have been asked to declare void.

For the reasons stated, we decide that section 2 of the Act of 1904, chapter 225, is free from constitutional objection, and that there is no conflict or repugnancy between that section and the provisions of the 15th section, and that, assuming the allegations of fact contained in the petition for the writ ofmandamus to be true, it was the simple, definite, and imperative duty of the respondents to give the notice and make the request provided for in the second section of that Act.

It follows that the order of the lower Court appealed against must be reversed, and the cause remanded for further proceedings.

Order reversed and cause remanded, with costs to theappellants.