Bonsal v. Yellott

Boyd, J., delivered the opinion of the Court. The appellant filed a bill in equity against the appellees in which he sought to enjoin them from expending any of the public funds under their control, for plans and specifications for the construction of any road under the provisions of the Act of 1904, ch. 225, and from making any other expenditures of such public funds under color of the provisions of that Act. The appellant is a resident and taxpayer of Baltimore County, and the appellees are the County Commissioners, sitting as the Highways Commission of said county. The Act of 1904 is entitled “An Act for the improvement of the public highways of the State and to provide the means therefor, and to require the commission created by an Act of the General Assembly of 1896, ch. 51, to perform certain additional duties.” By it, it is proposed to furnish State aid for the construction of roads which may be macadamized, or of a telford or other stones, or constructed of gravel or other good material “in such a manner that- the same will be", with reasonable repairs thereto, at all seasons of the year, firm, smooth and convenient for travel.” It appropriates the -sum of $200,000 annually, or so much thereof as may be necessary, out of the State treasury, and provides that the State shall pay not exceeding one-half of the total cost and expenses of the roads built according to its provisions.

The counties are to pay the other half and no county is to receive a larger share of the amount appropriated than the proportion the public road mileage of the county bears to the total public road mileage of all the counties in the State applying, as de ⁴⁹⁷ termined by the commission. Any road constructed under the Act is to be thereafter a county road and the duty of keeping it in repair devolves upon the county. The commission provided for by the Act of 1896, and referred to in this Act, is composed of the Governor, the Comptroller, the president of Johns Hopkins University, and the president 01 the Maryland Agricultural College, and it has various duties to perform under the provisions of the statute. The question is whether this Act is in conflict with that part of sec. 34 of Art. 3 of the Constitution of the State, which is as follows: “The credit of the State shall not in any manner be given or loaned to, or in aid of any individual association or corporation; nor shall the General Assembly have the power in any mode to involve the State in the construction of works of internal improvement, nor in granting any aid thereto, which shall involve the faith or credit of the State; nor make any appropriation therefor, except in aid of the construction of works of internal improvements in the counties of St. Mary’s, Charles and Calvert, which have had no direct advantage from such works as have been heretofore aided by the State; and provided that such aid, advances or appropriations shall not exceed in the aggregate the sum of five hundred thousand dollars.” The first provision of this character that was adopted in this State was in sec. 22 of Art. 3 of the Constitution of 1851.

It was similar to that in the present Constitution, excepting instead of using the expression “nor in granting any aid thereto, which shall involve the faith or credit of the State,” it said, “or in any enterprise which shall involve the faith or credit of the State,” and no exception was made in favor of the three counties named. The Constitution of 1864 followed the language of that of 1851. Inasmuch then as the provision in controversy was first introduced in the Constitution of 1851, and was continued in that of 1864 and, with such changes as we have noted, in that of 1867, it will be proper to consider the circumstances under which it was first adopted, the object of its adoption and the construction that has been placed on it by the Legislature,. ⁴⁹⁸ the framers of the several Constitutions and by the people. Questions of this chacacter cannot be determined by simply ascertaining the etymology of the terms used.

Public roads may be, and unquestionably generally are, “internal improvements,” but when the General Assembly has been prohibited for more than half a century from, in any mode, involving the State in the “construction of works of internal improvement, or granting any aid thereto which will involve the faith or credit of the State, or making any appropriation therefor,” the question is not whether that term can include “public roads,” but whether it was intended to and did do so, as used by the framers of the Constitution and the people who adopted it. As was said in Jackson v. State, 87 Md. 194 , “The Constitution is not to be construed in a technical manner, but in ascertaining its meaning we are to consider the circumstances attending its adoption, and what appears to have been the understanding of the people when they adopted it,” and we then only announced a rule of interpretation which had been frequently adopted. It is only by recalling, what seems almost like ancient history to us of today, that there was a time when the State’s credit was seriously affected that we can appreciate the occasion for such a provision as the one under consideration. Yet we find the same Legislature that passed this Act recognizing the great public services rendered by a former Governor of Maryland in preseving its credit, not long prior to the assembling of what was called “The Maryland Reform Convention to Revise the Constitution.” From the debates of that convention and other history of the State, it is well known that it had expended millions of dollars in aiding “works of internal improvements,” which in some instances proved to be worthless investments and in others giving little or no promise of early returns.

But they were canals, railroads, possibly turnpikes, and similar internal improvements, and so far as the records disclose, or we are informed, not one dollar of the State’s money had been lost or was in any jeopardy by reason of aid to such “public roads” as we are now concerned in. ⁴⁹⁹ With the exception of about twenty thousand dollars, in the aggregate, loaned to three counties, by the Act of 1774, ch. 21, we have not been cited to any instance where its credit had been involved for the benefit of “public roads,” and indeed that was whilst' Maryland was still a Colony. It was said by the appellees, and does not seem to be denied by the appellant, that that Act “is the only instance of direct aid from the treasury of the government, Provincial or State, to public roads.” But be that as it may, certain it is, as clearly shown by the debates of the convention, that the “works of internal improvement” which had been and were then giving the people of this State such concern, were the Baltimore & Ohio Railroad, the Chesapeake & Ohio Canal, the Tidewater Canal, and similar companies in which the State’s money had been so largely invested. Such enterprises were being aided, not only, for the purpose of developing the State, but the Legislature had doubtless been made to believe that they would be profitable investments. But the time came when the State could not meet the interest on its debt, incurred by reason of these investments, and it was in danger of bankruptcy and repudiation.

The Legislature passed “An Act to sell the State’s interest in the internal improvement companies, and to pay the debts of the State” (1842, ch. 301), but they could not be sold for want of purchasers, and finally after a great struggle the obligations of the State were met by increased taxation, and its credit re-established. When then the constitutional convention of 1851 submitted to the people this provision, it is certain that its members and the people had in mind the character of “internal improvements,” which had been'so disastrous to the State, and it would seem to be equally clear that they did not refer to the ordinary “public roads,” which the public authorities alone construct. We are not called upon to attempt to give the history of highway legislation in Maryland. An article of much interest is found in vol. 3 of “Maryland Geological Survey,” and the. briefs filed in this case can be studied with profit.

It must suffice to say that with the exception of the National road, ⁵⁰⁰ built by the general government from Cumberland westward, the turnpike and plank roads, constructed by private corporations chartered by the State or by individuals, the public roads have been constructed almost, if not altogether, exclusively by the local authorities. We followed that rule of the common law, with others. But while that is so, it is equally true that no power of taxation, or other means of raising revenue for the construction and maintenance of roads, is vested in the counties, excepting what the State gives them. “Cities and counties are but local divisions of the State, organized and chártered for the more efficient and economical administration of the government. As such, they have no inherent power of taxation.

The Legislature itself may levy needful taxes to defray the general expenses of such cities or counties, or it may delegate this power to the local authorities. These expenses of a city or county, for example expenses for * * * the maintenance of the public highways and other like expenses, are public or governmental expenses, and the power of taxation, exercised by the local authorities, to defray such expenses, is a delegated power derived'from the Legislature.” Daly v. Morgan, 69 Md. 467 . Under our present system the County Commissioners are the boards in charge of the local affairs of the counties, and by sec. 1 of Art. 7 of the Constitution ‘‘their compensation, powers and duties shall be such as are now or may be hereafter prescribed by law.” Under the Code of Public General Laws (Art. 25) they have charge of and control over county roads and bridges, have the power to open, alter or close public roads in their respective counties, and are required to keep them in repair. But the Legislature can so change their power and duties as [to the public roads as to place them under the control of another board as was done in Baltimore County, where they were put in the hands of Roads’ Commissioners, and the statute was upheld by this Court to the extent of relieving the County Commissioners from liability for damages for injuries sustained by reason of a road being out of repair.

Baltimore County v. Wilson, 97 Md. 207 . ⁵⁰¹ Such being the case, it would seem strange if the people did mean by this provision in the Constitution to deprive the Legislature of the power to aid in the construction of county roads. It may well be that such assistance by the State as is proposed by this Act may be the means of enabling the counties to construct roads of a character that no 'one county could well undertake. A State.commission, such as that provided for, may be able to introduce a system and methods that the local authorities of one county could not be expected to undertake. Yet, if the contention of the appellant is correct, there not only could not be a commission paid by the State to help the counties in this work, but even one such as this would be unlawful for although the Act of 1896, which created the commission, requires the members to serve without compensation, it provides that they shall be reimbursed for actual expenses incurred, and there are expenses connected with their duties other than those personal to the members of the commission, which must be met.

Indeed'can it be doubted that much of the work already done in connection with the “Maryland Geological Survey,” is in conflict with this provision of the Constitution, if the construction contended for must be placed on it? On p. 38 of vol. 1 of the reports of that survey, attention is called to “The Special Investigation of Road Materials.” After referring to the fact that perhaps no subject is attracting more attention “of enlightened commonwealths,” than the proper construction of roads, “that if the money now expended annually by the several States was properly applied, a system of permanently good roads could be gradually constructed in place of the temporary makeshifts now in vogue,” the importance of showing to the Road Commissioners of each county the various rock formations within the State, the most available local materials, questions of transportation of them, etc., that page concludes, “There are few ways in which the Geological Survey can be of more direct service to the State than in giving advice regarding the proper materials for road construction, and it is the intention of the State Geologist to give the subject his careful attention as the work of the survey pro ⁵⁰² ceeds.” One entire volume (3) of these reports is devoted to this subject, and in other ways the money of the State has been used in aid of these “internal improvements,” but is it to be suggested that the framers of our three Constitutions containing this provision ever dreamt that they were so effectually sealing the doors of our State Treasury as to prevent the expenditure of any of its money for such purposes ? Every intelligent person in the State, who has given the work of this commission, and the officers and others employed by them, due consideration, must know that the public money has seldom been more advantageously spent for the development and advertisement of the State, and for the instruction of its people in matters that must be of the most practical and permanent benefit. Yet it cannot be