Bd. of Ed. v. Mayor Etc. of Frederick

¹⁷⁴ Marbury, C. J., delivered the opinion of the Court. The question in this case is whether a statute which empowers the Mayor and Aldermen of Frederick, a municipal corporation, to condemn a specific piece of property, located within the corporate limits of the City of. Frederick, and belonging to the Board of Education of Frederick County, is a local law within the meaning of Article XVI of the State Constitution, so that it may be referred under that Article to the voters of Frederick County. It appears from the record that the land comprising the campus upon which the Frederick High School is located, was purchased by the Board of Education in the fall of 1938.

At that time it contained some 39 acres of land with access from existing streets, but without danger to the student body from these streets. At the time of the purchase, the City of Frederick desired to extend its existing park system, and in compliance with this desire, a tract of six acres from the northerly portion of the 39 acres was sold and conveyed to the City as an addition to a public park. The remaining acres were developed for school purposes. The present high school building was placed on a portion of them, and the part to the north was designed for grass plots, for future use for experimental agricultural plots, and for public buildings.

So far as appearances went there was no division between the school tract and the six acres conveyed to the city for a park. In the spring of 1948, a tract of land lying north and west of the school tract was purr chased by some private parties for the purpose of building an apartment project. The city agreed with these private interests to construct a street through the high school campus. After a contract to that effect was signed, the County Board of Education was consulted, but the Board unanimously disapproved the suggestion.

The City then attempted to condemn the land. The Board of Education filed a bill in equity to enjoin this condemnation, and after the case was fully heard, the court held ¹⁷⁵ that the City was without authority to condemn the land of another public body, and dismissed the bill. (See Northern Cent. Ry.

Co. v. Mayor & City Council of Baltimore, 133 Md. 658 , 106 A. 159 .) The General Assembly of 1949 then passed Chapter 591 of the Acts of that year. This act added a new section to the Charter of Frederick, contained in Article XI of the Code of Public Local Laws of Maryland, title “Frederick County”, sub-title, “Frederick City”, sub-heading, “Streets”. This new section, known as Section 270A, empowered the Mayor and Aider-men of Frederick to condemn in accordance with the public local laws of Frederick County a specific parcel of land belonging to the Board of Education “now known as the Frederick High School ground and lying adjacent to a stream known as Carroll Creek and the lands owned by the City”. The land authorized to be condemned is not to exceed 60 feet in width and 1160 feet in length.

The act provided that it should take effect June 1, 1949. Subsequent to the passage of the act there were circulated through Frederick County petitions for a referendum on this act, under Article XVI of the Constitution of the State. These petitions allegedly contained the signatures of more than 10 per centum of the votes cast for Governor in Frederick County in the last general election, and this would result in the act being referred to the voters of the County and its suspension pending the result of the vote. A bill of complaint was thereupon filed by the Mayor and Aldermen of Frederick, and two residents and taxpayers of the City and County of Frederick, brought on behalf of all other taxpayers desiring to become complainants, for the purpose of enjoining the Secretary of State and the members of the Board of Supervisors of Elections of Frederick County from placing the referendum petition on the ballots at the election to be held in the month of November, 1950, and for the further purpose of declaring that Chapter 591 of the Acts of 1949 went into full force and effect on June 1, 1949.

The Board of Education of Frederick County, on its petition, was made party to the suit, and filed a combined demurrer ¹⁷⁶ and answer. The City demurred to a part of the answer. Both demurrers, however, were overruled, testimony was taken, and the Chancellor ruled that Chapter 591 was not referable, but went into full force and effect on June 1, 1949. The injunction asked was granted against the Secretary of State and the Board of Supervisors of Elections.

This appeal was taken from the decree by the Board of Education alone. Two minor contentions are that the Mayor and Aider-men of Frederick have no sufficient interest to bring the bill of complaint, and that there is no showing that the interest of the individual complainants, Price and Brunk, is sufficient in amount to give jurisdiction to a court of equity. We think it is implicit in the authority of a municipal corporation to take necessary legal action to put in force its ordinances, or any amendment to its charter. The fact that the point might be determined in a condemnation case is not sufficient reason to hold that a city may not, in advance, seek to check a referendum which would have the practical effect, at least, of putting off any condemnation until after the voters had passed upon the question.

The city has the right to have determined whether it has the present power to open a street, a matter peculiarly within its province, and one which may be important for many reasons. In any event, the taxpayers interested in avoiding the waste of funds derived from taxation, which would be involved in conducting a referendum, have a right to bring such action in representation of all other taxpayers who may be involved. Sun Cab Co. v. Cloud, 162 Md. 419 , 159 A. 922 . It is our conclusion on this part of the case that proper parties brought the suit, and the equity court had jurisdiction.

The Referendum Article of the Constitution was submitted to the people of the state by the Act of 1914, Chapter 673, and was ratified by the voters on November 2, 1915. In a case involving the provisions of this article, decided in 1917, there is contained a discussion of its purposes. It was stated that, after the Civil War, abuses ¹⁷⁷ began to creep into legislation, which were alleged to have grown out of the control of the legislators by great corporations and by political parties, by means of which it was felt that the government was prostituted to corrupt and selfish purposes. Proposals were made to abolish the principle of representation and to adopt the principle of initiation of legislation by the people, and the principle of referring legislation already adopted by the Legislature to the people.

The last of these proposals was adopted by this state in the Referendum Amendment, and this Court said “The referendum, broadly speaking, is the reservation by the people of a state, or local subdivision thereof, of the right to have submitted for their approval or rejection, under certain prescribed conditions, any law or part of a law passed by the law making body. It was designed as a modification of, or as a supplement to the principle of representation with which we had long been familiar, and it was claimed for it that it would prevent the recurrence of many of the abuses to which we have referred.” Beal v. State, 131 Md. 669 at page 678, 103 A. 99 , at page 102. The Referendum Article provides for the submission to the registered voters of any act or part of any act of the General Assembly (Section 1(a)), but by Section 3(a) it is provided that a public local law for any one county or the City of Baltimore shall be referred by the Secretary of State “only to the people of said County or City of Baltimore, upon a referendum petition of ten per cent, of the qualified voters of said County or City of Baltimore as the case may be, calculated upon the whole number of votes cast therein respectively for Governor at the last preceding gubernatorial election.” When sufficient petitions have been filed before the first day of June, the act then petitioned against shall not take effect until thirty days after its approval by a majority of the electors voting thereon at the next ensuing election for members of the House of Representatives. (Section 2.) This is not true of an emergency law, but the act in question here was not passed as an emergency law. ¹⁷⁸ The sole question here is whether the act is a local law within the meaning of the Referendum Article.

There are exceptions contained in the Article itself to the kind of laws which may be referred. No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to referendum. (Section 2.) Nor shall any law or constitutional amendment licensing, regulating, prohibiting, or submitting to local option the manufacture or sale of malt or spirituous liquors be referred or repealed under the provisions of the Article. (Section 6.) These are the only specific exceptions, but this court has made a further exception.

This exception is of those acts which, although local as distinguished from general, are confined in their operation to part of a county, and should, obviously, not be properly referred to all of the voters of a county, many of whom have no interest in them. This implied exception is the one under which the appellees claim the act in question belongs. The appellant, on the other hand, contends that while the act is, in form, an amendment to the charter of Frederick, it nevertheless vitally affects the whole school system of Frederick County and, therefore, is a proper one to be referred to all the voters of that county. Cases in which this implied exception was made began with Strange v. Levy, 134 Md. 645, 646 , 107 A. 549, 550 .

In that case there was an act passed creating the office of President of the Annapolis Water Company and imposing upon the counselor and one of the minority members of the Board of Aldermen the duty of being directors of the Annapolis Water Company. This act was made an emergency law under the Referendum Article. The Court said that the Referendum Article was “clearly not intended to apply to public local laws for any city other than Baltimore City, there being no provision for a referendum except in cases of public general laws applicable to the State, and public local laws for a county ¹⁷⁹ or the City of Baltimore(Emphasis supplied.) It was held that the law in question was a public local law for the City of Annapolis, and, as there was no provision in the Referendum Article applicable to such a law, it did not come within the purposes and provisions of that Article. In the case of Richardson v. Blackstone, 135 Md. 530 , 109 A. 440 , the court had before it Chapter 163 of the Acts of 1918, amending the Charter of the Town of Crisfield.

This act was put into effect by a simple statement that it took effect on the date of its passage which was April 10, 1918. This court held that as this act related only to the town of Crisfield, it was not subject to the Referendum Article, and could be made to take effect at once, without the passage of an emergency clause, such as is required in acts subject to that Article. The next case, which is the one principally relied upon by the appellees, and which was the basis of the decision in their favor by the Chancellor, is Dinneen v. Rider, 152 Md. 343 , 136 A. 754, 755 . In that case the Legislature had passed Chapter 539 of the Acts of 1924, erecting a specific portion of Baltimore County contiguous to Baltimore City into the “Baltimore County Metropolitan District”, and had placed it under the administration of the Board of County Commissioners as its governing board.

The purpose was to provide the populous territory of the county adjacent to the City, with adequate water supply, and sewerage and storm water drainage systems. The Commissioners were invested with the right of acquiring the necessary property by purchase or eminent domain, except that no property could be condemned within the limits of Baltimore City, and none of the properties, plants, franchises, and rights of the Mayor and City Council of Baltimore could be taken without the consent of the City authorities. The funds for the purpose of the act were to be provided by bonds