County Commissioners v. County Commissioners

50 Md. 245 | Md. | 1879

Alvey, J.,

delivered the opinion of the Court.

Whether the Acts of 1874, ch. 276, and 1876, ch. 314, are obnoxious to the objection taken to them, that their titles are insufficient to gratify the requirement of Art. 3, sec. 29, of the Constitution of the State, is a question supposed, by a majority of the Court, to be settled in the negative by the recent case of The County Commissioners of Dorchester County vs. Meekins, ante p. 28.

But in the opinion entertained by the majority I do not concur. In my judgment, both the Act of 1874 and of 1876 are fatally deficient in their titles, and for that reason the Acts should be declared nugatory. But as that is not the opinion of a majority of the Court, we-are required to proceed to the consideration of the next constitutional objection taken to those Acts by the appellants.

These Acts were passed to provide for the construction and maintenance of a drawbridge over the channel of Kent Narrows, a body of water within the limits of Queen Anne’s County. And before taking special notice of the provisions of the Acts, it may he proper to observe the relation that those Narrows bear to Talbot County, the present appellant.

These Narrows connect the waters of Eastern hay with those of Chester river, and they divide Kent Island from the mainland, — the Island as well as the Narrows being exclusively within the limits of Queen Anne’s County. Whether these Narrows were ever navigable before being made so by the general government, under the authority of the Act of 1874, ch. 276, does not appear. But under previous legislation of the State, the authorities of Queen Anne’s County had made and maintained a permanent and continuous causeway over the Narrows, connecting the Island with the mainland; and this causeway served all the purposes of communication and travel between the Island and the other portions of Queen Anne’s County. Within a few years past the idea was conceived of cleaning out and making these Narrows navigable, and in order to effect that object it was necessary to construct a drawbridge in the existing causeway. This new or contemplated route of communication would seem to have been principally designed for the benefit of the people in the north and north-western portions of Talbot County, bordering on Eastern bay and Wye river, to save them the time and distance of rounding the lower extremity of Kent Island, in their communication by water with Chester river, Baltimore City, and other places on the upper portion of the Chesapeake bay. Hence we find it recited in the Act of 1876, ch. 314, that the erection of the bridge was at the special instance and request of Talbot County, and that the benefits thereof would inure chiefly to the citizens of that county.

The bridge was first provided for, at county expense, by the Act of 1874, ch. 276. By that Act several previous Acts in relation to the Narrows were repealed, and, by the 2nd section, it was provided that the County Commissioners of Queen Anne’s County and Talbot County should levy a tax upon the taxable property of their respective counties, for the purpose of erecting a drawbridge over Kent Narrows, the one-half of the cost of erection to be borne by each county respectively. By the 3rd section it was provided that the bridge should be a free bridge, and should be under the control of the County Commissioners of Queen Anne’s County. And by the 4th section, authority was given to the government of the United States to open and clean out the said Narrows, and to remove all obstructions therefrom.

Under this Act, the general government was induced to make appropriation for and have the channel of the Narrows cleaned out and deepened. The County Commissioners of the two counties entered into a contract for the construction of the bridge, and levied the money and paid the contractor for his work, as far as he progressed with it. But the contractor did not complete the work, and left it in an insecure condition, and as a consequence it was washed out and greatly broken by the strong current of water running through the new made channel. This being the condition of the work, it became necessary either to repair the damage and complete the bridge, or restore the original causeway; but as the Act of 1874 made no provision for keeping the bridge in repair and safe for public travel, or for a keeper of the draw in the bridge, that Act was repealed and the Act of 1876, ch. 314, enacted in its stead. By this latter Act, after recitals in the preamble, it is enacted that the County Commissioners of the two counties shall levy a tax upon the assessable property of their respective counties, “for the purpose of erecting and keeping in repair a drawbridge over said Kent Narrows, and providing for a keeper for the draw of the said bridge; ” each county to provide and pay one-half the expense. It is then provided that the bridge shall he free, and shall he under the joint control of the Commissioners of the two counties. And, finally, it is declared that all Acts done, and all contracts made and entered into, by-the Commissioners of the two counties, acting under the Act of 1874, shall stand ratified and confirmed as if that Act had not been repealed. Under the Act of 1876 the Commissioners of Queen Anne’s County proceeded with the work, hut the Commissioners of Talbot County have refused'; fill further co-operation in the matter, and have refused to make any levy of taxes for the purpose of aiding in the rebuilding and keeping in repair the bridge, and deny the power of the Legislature to impose upon them the duty of so doing; and hence the application by the Commissioners of Queen Anne’s County for a mandamus against the Commissioners of Talbot County to compel them to comply with the provisions of the Act of 1876, ch. 314.

To state the position of the Commissioners of Talbot County, in regard to the demand now made upon them, they contend that the Legislature has no power, by mandatory Act, to compel a municipal corporation, against its own will and consent, to levy taxes, incur debts, or assume obligations for purposes not within the ordinary functions of municipal government, or for objects wholly outside of, and beyond its territorial limits, whatever may he the local benefits to accrue therefrom; and that, therefore, the Acts in question are void.

Now, if it were true, as contended by the appellants, that the Acts in question did attempt to impose upon the Commissioners of Talbot County the duty of levying taxes and assuming obligations for purposes not within the ordinary functions of municipal government, such as that of a county organization, the correctness of the position taken by tbe appellants could not be controverted. But within the county limits the making and maintaining the public highways and bridges, at the cost of the county, are among the most ordinary functions with which the county organization, as a municipality, is charged. This being •so, the question is reduced to this: Can the Legislature, by mandatory Act, require the County Commissioners to levy taxes on the people of the county generally, and incur debts and obligations, for the construction and maintenance of a way or bridge located within the limits of another county? If this question cannot be answered in the affirmative, under the peculiar circumstances of this case, the writ of mandamus must be refused.

A county is one of the public territorial divisions of the State, created and organized for public political purposes, connected with the administration of the State government, and especially charged with the superintendence and administration of the local affairs of the community; and being in its nature and object a municipal organization, the Legislature may, unless restrained by the Constitution, .or some one or more of those fundamental maxims of right and justice with respect to which all governments and society are supposed to be organized, exercise control over the county agencies, and require such public duties and functions to be performed by them, as fall within the general scope and objects of the municipal organization. It is true, the power of the Legislature over these municipal ■organizations is not without limit, under the Constitution of this State, and especially is there a limit in regard to •objects dependent upon the exercise of the power of taxation. This limitation is implied from the very nature and ■objects of the organization. As applied to these subdivisions of the State, the Legislature has no more power to require a tax to be raised in one county to pay for a purely local object in and for another county than it has to rehuiré that the expense of a purely public improvement should be pa'd by one or a given number of individuals. As was said by Chief Justice Black, in delivering the opinion of the Court in the case of Sharpless vs. City of Philadelphia, 21 Penn. St., 168, " The whole of the public burden cannot be thrown on a single individual under pretence of taxing him, nor can one county be taxed to pay the debts of another, nor one portion of the State to pay the debts of the whole State. These things are not excepted from the powers of the Legislature, because they did not pass to the Assembly by the general grant of legislative power. A prohibition was not necessary. An Act of Assembly commanding or authorizing them to be done, would not be a law,- but an attempt to pronounce judicial sentence, order or decree.” Indeed, it would be a startling proposition to announce, that it is competent to the Legislature to require the people of one county to raise money by taxation and apply it to the making of roads, bridges, or any other public improvement, in another county, without reference to any special benefit to be derived therefrom by the people thus taxed. Such legislation could not for a moment be sustained; and it is fully conceded by the counsel for the appellees that such legislation would be uncon-, stitutional and void.

But, notwithstanding this restriction upon the powers, of the Legislature, it does not follow that where, as in the case before us, the purpose of the taxation required is not only public, but the object to be accomplished is at the same time local in its character, and of special and peculiar interest to the people sought to be taxed, that the law directing the tax to be levied may not be enforced, though the object of the expenditure may have its situs beyond the limits of the county taxed. Here, Talbot County promoted and embarked in the work with Queen Anne’s County, and induced the latter county to assume obligations that she never would have assumed, in all proba-, bili.ty, but for the active agency of Talbot County in undertaking the work, and her willingness in the beginning to share the expense. All this was under the sanction of law; and the statute itself recites and declares that the erection of the bridge was undertaken at the special instance of Talbot County, and that the benefits to accrue therefrom will inure chiefly to the people of that county. It follows, therefore, that the bridge is a public local improvement, such as may be supported by local taxation, and, under the circumstances of the case, it is but just and equitable that Talbot County should be required to bear her proportion of the expense, in accordance with the Act of Assembly. It would be most unjust to require the whole expense of the work, and of keeping it in repair, to be borne by Queen Anne’s County; and the fact that the bridge has its situs in the latter county is no answer to the .present application. While it would not have been competent to the county to levy taxes to he expended in the construction of a road or bridge beyond its territorial limits, without the express authority of law, the bridge in question was not only authorized, but its construction and the levy of taxes to pay for it, were expressly directed by mandatory Act of the Legislature.; and though the bridge is over a stream beyond the limits of the county, the authorities are quite explicit in maintaining, upon the ground of special and peculiar interest, that such mandatory legislation is constitutional and enforceable. Thomas vs. Leland and others, 24 Wend., 65; Com. vs. Newburyport, 103 Mass., 129; Carter vs. The Bridge Proprietors, 104 Mass., 236; Cooley on Taxation, 123.

As to the position of the appellants that the State has no power to authorize or require the erection of a bridge over a navigable river or stream that may in any manner interfere with the navigation thereof, it is only necessary to remark, that it is now settled by repeated decisions of the Supreme Court of the United States, that, in the ab■sence of any restrictive legislation on the subject by Congress, the State may authorize bridges over navigable streams, by statute so guarded as to protect the substantial rights of navigation. Wilson vs. The Blackbird Creek-Marsh Co., 2 Pet., 250; Gilman vs. Philadelphia, 3 Wall., 713; Atlee vs. Packet Co., 21 Wall., 389; Pound vs. Turck, 95 U. S., 459. Here, it is not shown, nor is there any pretence, that the drawbridge authorized to be constructed will, in any substantial way, interfere with the rights of navigation. On the contrary, drawbridges are structures that exist over many of the navigable streams of the country, without interference with or complaint from those interested in navigation.

(Decided 28th January, 1879.)

There is one matter of charge allowed in the order appealed from, which we think cannot he allowed, and that is for keeping up a ferry during the time of the construction of the bridge. This does not seem to he provided for by the Acts of Assembly, and hence it is improper to he included in the amount directed to he levied. The order appealed from, therefore, must he reversed, and the cause he remanded that a corrected order-be passed in accordance with this opinion.

Order reversed, with costs in this Court to the appellants, and cause remanded,„