Smith v. Stephan, 66 Md. 381

Smith v. Stephan

66 Md. 381 | Md. | 1887

Bryan, J.,

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 *387hundred and eighty-six. And. for this purpose, the corporation was authorized to issue bonds to an amount not exceeding three thousand dollars. There can be no reasonable doubt of the power of the Legislature to pass this law. It creates municipal corporations of this kind at its own will, and invests them with such powers, consistent with the Constitution, as the public good requires. If the Legislature did not have this power, the administration of the public affairs of the State would be very seriously embarrassed. We are not aware that this power has ever been denied by any judicial authority, and we may mention the case of the Police Board of Baltimore, 15 Md., 376, as a conspicuous instance, where 'it was very emphatically affirmed. If the floating debt of the City of Westminster had been contracted without due authority, this legislative approval would have given it validity. But we can have no doubt whatever of its power to make ■contracts in the necessary prosecution of its corporate business, within the limits of its charter, and in this way to incur indebtedness.

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 *388of the bill, which impeach the legality of their election to the offices which they assume to hold. It is averred that the election was void and of no effect, because, in the language of the bill of complaint, “it was carried on and conducted without, and in the absence of, and without regard to, any registry or list of qualified voters.” It is contended that the fifth section of the first Article of the Constitution refers to and governs this election; and that it was necessary that the judges who held it should have been furnished with a list or registry of qualified voters ; and that no one should have been permitted to vote whose name did not appear on such list. This section of the Constitution denies the right to vote at Federal and State elections, and municipal elections in the City of Baltimore, to all persons whose names do not appear in the list of registered voters. It makes no allusion to municipal elections in any other town or city. The distinction is clearly made in the Constitution between Federal and State elections on one side, and municipal elections on the other. It is impossible to mistake the meaning of the terms employed. An election held for the purpose of regulating the local affairs of a town or city under the provisions of its charter would never be mistaken for a State election. It is sufficient to say that no municipal elections exdept those held in the City of Baltimore are within the terms or meaning of the Constitution. The ninety-seventh section of the Public Local Law of Carroll County gives the right to vote at municipal elections in the City of Westminster, to the inhabitants who are qualified to vote for delegates to the General Assembly. The qualifications of voters are stated in the first section of the first Article of the Constitution. It is declared that every white male citizen of the United States, of the age of twenty-one years or upwards, who has been a resident of the State for one year, and of the county in which he may offer to vote for six months next preceding the election, shall be en*389titled to vote in the election district in which he resides at ■all elections held in this State. Since the adoption of the Constitution, the right of suffrage has been extended to persons of African descent. The fifth section directs the General Assembly to provide by law for a uniform registration of the voters who possess the qualifications before prescribed. The qualification to vote was required to ■exist before a person had the right to be registered ; the registration consisted in making a list of those who were already duly qualified; and it was made for the purpose of being used only at State and Federal elections, and municipal elections in the City of Baltimore. The right •of an inhabitant of Westminster, therefore, to vote for Mayor and Councilmen must depend on the requirements of the Constitution, without reference to the registration list.

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 *390found where declarations made by the legislative department must be received as proof by the Courts. They are' usually cases where the Legislature was required by its duty to investigate, and make known facts of a public and general nature; or where such facts were made the basis for a public law. A question of indebtedness between A and B is a private transaction, which must be settled by the judicial department after hearing the parties interested.

(Decided 4th January, 1887.)

The Court below refused the injunction prayed by the-bill, and we agree in its ruling.

Order affirmed tuith costs, and cause remanded.

Judge Miller

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 *391so qualified. If then the framers of the Constitution, and the people who adopted it, have seen fit to say that no one shall vote unless he is registered, is not registration just as much a qualification as age or residence, and is not non-registration just as much a disqualification under such an instrument, as non-age or non-residence? If a man cannot vote without being registered, it seems to me, with great deference to the differing opinion of others, to he a mere quibble upon words, to say that he is “qualified to vote” without being registered. In my opinion the inhabitants of Westminster who were not registered voters, are not qualified to vote and have no right to vote for Mayor and Common Council of that city, because without being so registered they are not qualified to vote and have no right to vote for delegates to the General Assembly. I am constrained therefore to dissent from so much of the opinion of the majority of the Court in this case, as places a different construction upon these terms of the charter. In my judgment the affirmance of the order appealed from may well be placed on other grounds.

I am instructed by Judge Stone to say that he concurs in this opinion.