Mayor of Cumberland v. Magruder

| Md. | May 31, 1871

Miller, J.,

delivered the opinion of the Court.

This appeal is from an order granting an injunction, prohibiting the appellants from issuing bonds of the city of Cumberland to raise money for building a bridge over the Potomac river, and from executing certain contracts alleged to have been entered into for its construction.

A motion to 'dismiss has been made on the ground that the paper filed as an answer by the Mayor and Councilmen is no answer, not being under the seal of the corporation. We need not decide whether this objection has been waived, and the answer accepted by the replication thereto, or by any subsequent proceedings in the case, so as to sustain the appeal if it had been taken by the corporation alone, because wo are satisfied the case is before us on the appeal of the other defendants whose answers are unobjectionable. The motion is therefore overruled.

The bill was filed by certain residents and tax payers of the city of Cumberland, and among other allegations it charges that the corporate authorities have entered into contracts with the other defendants, for amounts exceeding in the aggregate $24,000, for erecting a bridge across the Potomac at a certain point; that this bridge when completed will cost at least $30,000, and that to raise this sum the Mayor and Councilmen are preparing to issue coupon bonds of the city, payable to bearer, by which as well as by the contracts aforesaid, if executed, the faith and credit of the city will become pledged to an amount far exceeding $10,000,. without first submitting the question to the decision of a majority of the legal voters of the city, in compliance with its charter as ■amended by the Act of 1864, ch. 121. The bill then avers that the authority to issue bonds conferred by the Act of 1867, eh. 29, under which the city authorities pretend to act in the premises, can be executed only in the mode pointed out and subject to the restrictions contained in the charter, or*, in other words, that the provision in the Act of 1864, that the faith and credit of the city shall not be pledged, for any sum exceeding $10,000, without the previous assent of a majority of its legal voters, is not repealed by the subsequent law of 1867, but applies to and governs the exercise of all the powers in respect to the issuing of bonds and making contracts to be found in that statute. We must determine whether that is the true construction and effect of these two laws, for if it be, then it is clear the restraining power of a Court of Equity was rightly invoked by the complainants, and properly exercised by the order appealed from.

The law of 1864 is an amendment of the charter of the city. Its fourth section contains grants of certain pow'ers usually conferred upon municipal corporations, including the power to levy a tax not exceeding fifty cents in the hundred dollars and then concludes thus: “provided that they ” (the Mayor and Councilman) “shall not have power to close or alienate any public street or alley, or pledge the credit aiid faith of said city for any sum exceeding ten thousand dollars without first submitting the question to the voters of said city, after twenty days public notice, and a majority of the legal voters assenting thereto.” It is insisted by the appellants that this clause is strictly a proviso, which simply imposes a limit or restraint upon the exercise of the powers granted in the preceding part of the same section, and that the subsequent grant of power to build the bridge and issue bonds for the purpose, is a new and independent authority, to be executed entirely irrespective of this charter restriction. But whatever may be the ordinary office of a proviso in excepting something from the enacting clause, or qualifying or restraining its generality, or excluding some possible ground of misinterpretation, in our judgment no such narrow interpretation ought to be placed on this provision. It is engrafted upon the effective part of the charter of a municipal corporation, and no matter by what phrase it may be preceded, is in terms an absolute and unqualified negation of all power to close or alienate any of the public streets, and an equally comprehensive and definite restriction upon the exorcise of any power to pledge the faith or credit of the city beyond the limited sum. Its language is too plain to be misunderstood, too imperative to be disregarded, and the result it seeks to attain too salutary and important to be defeated by any nice construction founded on the position in which it is placed, the connection in which it is found, or the technical word by which it is prefaced. In respect to position and connection it is equally potent as if enacted in a separate section. It is moreover a most wholesome and wise restriction, intended to protect in some degree the citizens and tax payers of this city against wasteful and extravagant expenditure of their means and money by any corporate officials, who might at any time be disposed to abuse their trust and use their powers for selfish purposes in disregard of the public good. True, like all other parts of the charter, it is subject to repeal and modification by the Legislature, but until so repealed or modified, expressly or by implication, it stands, and must control the exercise of any subsequent grant of additional powers, unless such subsequent legislation in express terms repeals it, or presents a case of plain and unavoidable repugnancy thereto. And as respects repeal by implication, it may be observed in view of the almost absolute necessity of some check upon municipal extravagance, it is the duty of the Court, in order to preservo a restrictive provision of this character in á prior law, to make liberal application, as against a subsequent statute, of the old and settled rules of construction, that “repeals by implication are things disfavored by law, and never allowed but when the inconsistency and repugnancy are plain and unavoidable; ” that “if laws and statutes seem contrary to one another, yet if by interpretation they may stand together they shall stand, and when two laws only so far disagree or differ as that by any other construction they may both stand together, the rule that leges posteriores priores contrarias abrogant does not apply, and the latter is no repeal of the former.”

But what is this law of 1867, what is its effect and construction, and in what respect are its provisions inconsistent with or repugnant to the prior Act of 1864? It authorizes the Mayor and Councilman of Cumberland to build a bridge across the Potomac river, at such point as they may judge most practicable and convenient for the trade of the city, and if located beyond the city limits, then to lay out and construct a road from its Maryland terminus to Cumberland; it empowers them to acquire, by purchase or otherwise, lands for the abutments and bridgeways, and to make contracts for building the bridge and for materials therefor. It then authorizes them, for the purpose of raising funds necessary for building the bridge and road, to issue coupon bonds of the city and to levy and collect annually, a special tax over and above the ordinary taxes of the city, to pay interest on these bonds and create a fund for their redemption. It also gives them power, if they deem it advisable, to establish and collect tolls necessary to keep the bridge and road in repair, and to establish such rules and regulations, for the proper protection and repair of the same and the collection of tolls thereon, as they may deem advisable. These are the main provisions of this Act, and such legislation was necessary, because no such power had been conferred by the charter. In all its substantial parts tills law is simply a grant of powers to the city corporation, additional to those contained in the 4th section of the Act of 1864, and is as much an amendment of that section to that end as if it had so provided in express terms. Its sole effect therefore is to place these powers amongst those previously granted, subject in their execution to all the conditions and limitations imposed by the original law. The power to issue bonds is given, but the amount of them is not stated, and no sum is specified as the probable cost of the work, and in this respect it is entirely different from the 5th section of the charter. There is nothing on the face of the -law, or in the nature or character of the work authorized to .be done, from which an inference can be drawn that the Legislature supposed it would cost a sum exceeding $10,000, or if it did, that the sanction of the citizens by vote should not be first obtained. On the contrary, the failure to name or limit any sum for which bonds might be issued, as well as the fact that the location of the work and the contracts to be made for it, are left entirely in the discretion of the authorities, may well warrant the assumption that the Legislature intended that if a site was fixed upon and contacts made, involving an expenditure beyond $10,000, the pi’ovision of the charter should be observed by submitting the question to a vote of the citizens.

(Decided 31st May, 1871.)

It follows from this view of the construction and effect of these statutes that the attempt to pledge the faith and credit of the city by issuing bonds to an amount exceeding $10,000, and executing the contracts complained of without the previous sanction of a majority of the legal voters obtained in the mode prescribed by the charter, was wholly unauthorized, and the injunction to prevent it was on this ground alone properly granted.

Order affirmed.