66 Md. 381 | Md. | 1887
delivered the opinion of the Court.
The Legislature by the Act of 1886, chapter 116, authorized the Mayor and Common Council of Westminster to fund the floating debt of the corporation, as the same may have existed on the first day of February, eighteen
A bill in equity was filed by John Smith of Wakefield against Stephan, Fink, and others, in which it was alleged that Stephan unlawfully assumed to be Mayor, and the other defendants unlawfully assumed to be members of the Common Council of the City of Westminster ; and that they in conjunction were unlawfully exercising the powers conferred by the charter of the city on the corporation; and that these persons were about to issue bonds under the authority of the above mentioned Act of Assembly. It was also alleged that the City of Westminster was not in debt, and that the pretence that said bonds were to be issued to fund a debt of the city was false and fraudulent. An injunction was prayed to restrain the defendants, and each of them, from selling and disposing of the bonds.
The charge that these defendants were unlawfully exercising corporate functions is founded on certain averments
The averments of the bill of complaint do not show that the defendants are unlawfully exercising the powers of Mayor and Councilmen; and consequently this proceeding cannot be maintained against them. They are impleaded in their individual capacities for acts done, so far as this record shows, in the ordinary exercise of their corporate powers. They cannot be held to responsibility in such a suit. It belongs to the municipal corporation itself to defend the legality of these acts. In a bill in equity filed against it, if the averment that the City of Westminster is not in debt can be established, it will follow that the issue of the bonds authorized on the assumption of such indebtedness must be enjoined. In the preamble to the statute, which authorized these bonds, it is stated that ■“the Mayor and Common Council of Westminster is now indebted unto sundry persons in various sums of money, aggregating the sum of three thousand dollars and upwards.” This statement shows the information which induced the Legislature to pass the statute; but it is not to be taken as evidence in a Court of justice. Instances are
The Court below refused the injunction prayed by the-bill, and we agree in its ruling.
Order affirmed tuith costs, and cause remanded.
delivered the following opinion, concurred in by Judge Stone, dissenting in part from the foregoing opinion of the Court:
The charter of the City of Westminster says that the inhabitants of said city “qualified to vote for delegates to the General Assembly” shall annually elect a Mayor and Common Council, and it is plain beyond question that the Constitution provides that after a general registration law shall have been passed, (as has long since been done) no one shall vote for delegates to the General Assembly “unless his name appears in the list of registered voters.” Cons., Art. 1, sec. 5. If, therefore, the Constitution has made registration essential to the right to vote for delegates to the General Assembly how can it be said that any one is qualified so to vote without being so registered? According to my understanding of the meaning of the term “qualified to vote,” they mean that the citizen who comes up to the requirements prescribed by the instrument which regulates the right of suffrage is so qualified, and he who does not come up to such requirements is not
I am instructed by Judge Stone to say that he concurs in this opinion.