Dinneen v. Rider

Parke, J., delivered the opinion of the Court. The bill of complaint in this case against the Governing Board of the Baltimore County Metropolitan District and the Board of County Commissioners of Baltimore County, and the Treasurer of Baltimore County, the appellees, was filed by the appellants, Henry H. Dinneen and Eleanor H. Dinneen, his wife, for the benefit of themselves and on behalf of all other taxpayers of Baltimore County who would come in and contribute to the cost of the proceedings. The Harford Corporation was made a party plaintiff, and it, with the original complainants, are the appellants from a decree of the chancellor sustaining a demurrer to the bill of complaint and dismissing it with costs to the defendants. ■ The appellants are taxpayers to Baltimore County and are the owners of real estate situated in what is known as the Metropolitan District of Baltimore County, and seek to have the Act of the General Assembly of Maryland of 1924, known as chapter 539, declared void, and its enforcement enjoined (1) because the act violates article 16 of the Maryland Constitution; (2) because the title of the act is defective and obscure and misleading; (3) because it denies to the appellants due process of law; (4) because it withdraws from the ³⁴⁷ appellants the equal protection of the law; (5) because the act is confiscatory; (6) because it violates the Maryland Constitution in (a) authorizing the issuance of bonds upon the credit of the county for other than public purposes, and (b) sanctioning" double taxation; and (7) because it impairs the obligation of contract between the appellants and Baltimore City. The act thus assailed erected a specific portion of Baltimore County contiguous to Baltimore City into what was designated as the “Baltimore County Metropolitan District” and placed it under the administration of the members of the Board of County Commissioners of Baltimore County as the Governing Board of the Baltimore County Metropolitan District.

The purpose of the legislation is to provide the populous territory of Baltimore County adjacent to Baltimore City with adequate water supply, sewerage, and storm water drainage system. For the accomplishment of these objects, the commissioners are invested with the right to acquire whatever property may be necessary by purchase or through the exercise of the granted power of eminent domain, except that no property may be condemned within the territorial limits of Baltimore City, and, further, that none of the properties, plants, franchises, and rights of the Mayor and City Council of Baltimore now by it owned, or that by it may in the future be acquired for the protection or enlargement of its water supply, sewerage, storm water drainage, or refuse disposal systems, or any other utility property, shall be taken except by and with the consent of the Mayor and City Council of Baltimore. Section 3. As soon as possible after organization, from time to time thereafter, the commissioners shall cause surveys, studies, plans, specifications and estimates to be made for all those parts of the district in which there is, in their judgment, a need foi" water supply, sewerage or drainage; and shall divide the district into water, sewerage or drainage sub-districts in such a way as shall in their judgment best serve the needs of the various communities, and shall promote convenience ³⁴⁸ and economy of installation and operation; and, after such sub-districts have been created, they shall be numerically designated in the order of their creation as metropolitan sub-districts, and shall thereafter be known by the designation so given.

Whenever and as plans are completed for those sub-districts most needing service, the commissioners shall give notice, by publication for two successive weeks in one or more newspapers published in Baltimore County, that said improvements are contemplated, that the boundaries of the sub-districts have been established, and the classification provided by section 9 of the act into (1) agricultural, (2) small acreage, (3) industrial or business, and (4) sub-division property has been made, and that at a time specified in the notice, which shall be at least five days after its expiration, any person interested in the improvements will be heard. After public hearing, the decision of the commissioners as to the areas to be included and the improvements to be carried on in any sub-district shall be final. Upon these proceedings, the commissioners are authorized to proceed with the acquisition or construction of water supply, sewerage or storm drainage systems in such respective sub-districts. Section 4.

The act authorizes the proper authorities of Baltimore City to make extensions of water supply lines for and in the district whenever and wherever requested in writing by the commissioners. These extensions are to be paid for by the commissioners, and the cost thereof is subject to review by the Public 'Service Commission. There is a further provision that the proper authorities of Baltimore City are authorized and directed to make installation of water supply service pipes to be connected to its water mains, whenever and wherever requested in writing by an individual, firm or corporation owning property within the district, provided the applicant shall, before work is begun, deposit with the City of Baltimore a sufficient sum of money to cover such cost of installation, with the right to have reviewed by the Public Service Commission this cost, if the parties disagree. There is a supplementary provision that as soon as such extensions ³⁴⁹ have been constructed by the City of Baltimore in the district, the operation thereof shall be in the hands of the proper authorities of Baltimore City, which shall maintain and operate the extensions efficiently and establish and collect the water rates, subject to a prescribed control by the Public Service Commission.

Sections 5 and 6. The commissioners and the proper authorities of Baltimore City and Anne Arundel County are authorized to enter into any agreement with each other with respect to the disposal of sewage or drainage, or with regard to any other matter necessary for the proper construction or operation of the water supply, sewerage or drainage systems under their contract. Section 1. The commissioners are required to extend necessary connections from the water main and sewer to the property line of every property abutting upon a street or right of way in which a main or sewer is laid.

These extensions for connections are generally to he made at the sole expense of the commissioners. When the water main or sewer is ready for service, the abutting owners, after notice, may he compelled to connect their premises by completing the extensions on their property, with the exceptions: (a) that no water company shall be required to stop the use of any spring or well used by it to supply its patrons with water fit for domestic use, or cease to supply such patrons with water, or to connect its water supply system with the one established by the commissioners, unless and until the commissioners shall acquire the water supply system and property of the company; and (b) that no property owner having npon his such abutting premises any spring or well supplying water fit for domestic use shall be required to give up the use of such spring or well or to connect his property or premises with, or to take the supply of water for his premises from, the water supply system of the district; and (c) that no property owner having upon his such abutting premises a private sewerage system of a defined type for the disposal of sewage originating on his own premises shall he compelled to abandon it or connect ³⁵⁰ with the sewerage system of the district, unless not kept in an efficient and working sanitary condition, or unless such connection shall he required by the State Board of Health. It may be observed at this point that a property owner within any of these exceptions is merely relieved of the necessity of accepting the service provided by the district, and paying the charge therefor, but neither expressly nor impliedly does the act relieve him or his property of any assessment or other general charge imposed as a result of the construction, maintenance and operation of the public utility. The service is at his command and his property shares with the other abutting properties in the common benefit of this advantageous and available service, and any exemption of him or his property from the common burden of its installation and upkeep would have been unjustifiable.

Sections 8, 5, 6, 4, 9. The funds necessary for meeting the expenses of the commissioners and for designing and construction, purchase or acquisition of the water supply, sewerage, and drainage systems contemplated, are provided, in the first instance by the commissioners, from time to time, as they may deem necessary, issuing bonds upon the faith and credit of Baltimore Oounty, subject to the provision that the aggregate amount of bonds outstanding for any purpose under the act shall at no time exceed seven per centum of the total assessable basis of real and tangible personal property assessed for county taxation purposes'within the said Metropolitan District. Section 10. For the purpose of paying the interest on these bonds and providing the sinking fund for their satisfaction at maturity, the commissioners were empowered and directed to raise the necessary money by means of: (a) a reasonable charge for making the connection with the authorized water supply, sewerage, and drainage systems; (b) an annual assessment on all properties, improved and unimproved, bounding upon a street, road, lane, alley, or right of way, in which a water main, sewer, or drain has been built; (c) to the extent the preceding methods are ³⁵¹ insufficient to pay the animal amount necessary to discharge the interest on all outstanding bonds for the ensuing year, and to retire all such bonds maturing during the year for which taxes are levied, or to provide a sinking fund sufficient to retire all such bonds as they mature, as the nature of the bonds issued may require, the commissioners shall levy annually against all taxable property in the water, sewerage, or drainage sub-districts a tax calculated and designed to yield a sum adequate to liquidate such deficiency; and, finally, (d) if such a tax so levied shall not produce “a sufficient sinking fund to retire all such bonds as they mature, then the commissioners shall levy annually against all taxable property in Baltimore County a sufficient sum to make up the deficiency.” Sections 9, 10.

The act expressly provides the method by which the annual assessment shall be made. It rests upon the theory of benefits conferred upon the property affected. For the purpose of assessing these benefits in the: form of a yearly assessment, the commissioners are required to divide all properties fronting upon a street, lane, or alley, in which a water pipe or sanitary sewer is to be laid, into four classes, namely: first, agricultural; second, small acreage; third, industrial or business; and fourth, sub-division property; and the benefit charges shall be fixed and levied in accordance with this classification upon the front-foot basis, and the first payment shall be collectible during the year that the construction is started or in which the systems are purchased or acquired, provided, however, that no front foot benefit charge shall be levied against any property classified as “agricultural” until such property is connected with said water pipe or sanitary sewer, and that, when connected, the length of “agricultural” property to be assessed shall be limited to one hundred and fifty feet. The commissioners are required to change the classification of properties as they change in the uses to which they are put.

Section 9. All assessments and charges shall be uniform for every class of property throughout any sub-district, and all front- ³⁵² foot assessments shall run for an equal term of years, “provided, however, that any property owner may, at his option, within on© year from the time said front foot assessment or benefit charge is levied, extinguish the same by the payment in cash, in one sum, of the proportion of the estimated cost of the project of which the construction abutting upon his property is a part, represented by the number of front feet with which he is assessed, with interest at the rate of six per cent, per annum, from the date of said levy, less any annual payment that may have been made thereon. The commissioners, however, in estimating said cost for the purpose of extinguishment, may add thereto a reasonable margin to protect themselves against possible changes in the cost of construction and the loss of interest.” Section 9. These assessments and charges shall be a lien upon the property chargeable with the same until paid, and are payable to the treasurer of Baltimore County and, if unpaid for sixty days after becoming due, they may be collected by the treasurer of Baltimore County by an action of debt or by a bill in equity to enforce the lien.

All amounts collected in any manner by such treasurer for the construction, maintenance, and operation of the said water and sewerage systems, after deducting therefrom all overhead expenses of the commission and all proper and necessary costs of maintaining and operating the system, and all such sums so received by the commissioners to the credit of the water and sewerage fund shall be applied by such commissioners to the payment of the interest on and to the retirement of such outstanding bonds as may be issued under this act. Section 9. The other provisions of the act relate to various administrative, regulatory, and protective measures and details auxiliary to the successful accomplishment of the principal object of the statute, but not in any way involved or helpful in the solution of the questions before the Court, so their statement need not be attempted. The bill of complaint made the three members of the Board of County Commissioners of Baltimore County, who ³⁵³ are charged with the performance of the new duties imposed by the act, defendants, as constituting the “Governing Board of Baltimore County Metropolitan District,” hut this must he regarded as a designation of the nature of their additional powers and duties, as the statute itself does not call into being any such independent municipal body.

The allegations of the hill of complaint show that the commissioners, after having obtained in the manner required the data for the purpose, established a sub-district, which included in its limits the land of the appellants. The commissioners having completed its plans for the improvements within this sub-district, duly gave the prescribed notice of the improvements contemplated, and that the boundaries of the sub-district had been established and a classification of the property within the sub-district, fronting upon a street, lane, or alley, in which a water pipe or sanitary sewer was to he laid, had been made into the four classes specified by the act; and that at a fixed time any person interested in said improvements would he heard. The appellants did not see the notice by publication and did not attend the hearing, as they knew nothing of it. But the public hearing was had, and the commission decided to make the projected improvements, and among them was the construction of a water main from a point where it connected with the water supply system of Baltimore City, near its boundary line, through the sub-district, and laid in the bed of the two public streets upon which the property of the appellants abutted.

The improvements were completed, and the commissioners then assessed the whole cost of the improvements, according to the prescribed front foot rule, on all the property abutting on the said improvements, according to its several classifications and at these respective rates: 1. Agricultural: 15 cents per front foot for 150 feet only. 2. Small acreage: 15 cents for the first 150 feet; 10 cents for the next 150 feet; 5 cents for all excess over 300 feet. 3. Industrial or business: 20 cents per front foot. 4.

Sub-division property: 15 cents per front foot. The property of the appellants contains about three acres, ³⁵⁴ is improved, and is supplied with an abundance of pure water for domestic purposes under contracts existing between the appellants and the Mayor and Oity Council of Baltimore. The appellants’ first actual notice of the action taken was the discovery of a yearly assessment against their property at $92.55 for a period of forty years. This assessment was based on an actual frontage of six hundred and seventeen feet at the rate of fifteen cents per front foot.

These facts and the recited provisions of the act present the questions raised. 1. Section 31 of article 3 of the Constitution of Maryland authorizes the General Assembly to declare a law effective from the date of its pasasge, (a) while the subsequently adopted amendment to the Constitution, known as article 16, and entitled “The Referendum,” declared by its section 2 that no law should take effect until the first day of June next after the session at which it had been passed, unless the act contained a section declaring the law an emergency measure and necessary for the immediate preservation of the public health Or safety, and had been passed upon a yea and nay vote supported by three-fifths of all the members elected to each of the two Houses of the General Assembly. The general scope of this provision, which is indicated in the first subjection of section 2, is limited by both the express and necessarily implied exceptions which were created by the subsequent terms of this and succeeding sections of the article (b) Beall v. State, 131 Md. 673 ; Strange v. Levy, 134 Md. 645, 648 ; Poisel v. Cash, 130 Md. 373 ; Richardson v. Blackstone, 135 Md. 530, 540 ; (a) Baltimore v. German-American Fire Ins. Co., 132 Md. 380, 383, 384 ; Risewick v. Davis, 19 Md. 82, 96 .

It is the accepted rule of constitutional construction that the whole of the Constitution is to be examined with a view to arriving at the true intention of every part, so that effect shall be given to the entire instrument and to every section and clause. The seeming conflict betweeen these two articles can be harmonized by accepting the later article as qualifying the earlier article by restricting its operation to those laws not within the purview of article 16. In this ³⁵⁵ way every word of both will be operative. Cooley on Constitutional Limitations (6th Ed.) 72; Beall v. State, 131 Md. 669, 679, 680 .

As stated in the last cited case at page 678, “the general language employed in sections 1 and 2 must be limited and understood to apply only to such legislation as may he capable of referendum under this article.” In ascertaining if the act here assailed is within the purview of article 16, the declaration found in the act that it is an emergency measure is nugatory, if actually the enactment does not come within ’the terms of that article. Strange v. Levy, 134 Md. 645, 648 . The act here attacked was made effective from the date of its passage and contained the declaration that it was an emergency law and necessary for the immediate preservation of the public health and safety, and that its passage had been effected in the prescribed mode and by the requisite vote of all the members elected to each House of the General Assembly. The position taken is that the act could not be made effective from its passage, on the theory that the statute changed the salaries and duties of the County Commissioners of Baltimore County, who are public officers, and that this is forbidden by article 16, when it provided that “no measure creating or abolishing any office, or changing the salary, term or duty of any officer, or granting any franchise or special privilege, or creating any vested right, or interest, shall be enacted as an emergency law.” Article 16 was designed to reserve to the people of the State, or of Baltimore City, or of any county of the State, the right of having submitted for their approval or rejection any statute or part of a statute passed by the General Assembly.

If the act be a general public law, a referendum could not be obtained unless it be requested by a petition signed by ten thousand qualified voters of the State of Maryland, of whom not more than half shall be residents of Baltimore City, or of any one county. Should the act be any public local la.w for any one county or the City of Baltimore, the petition for a referendum must have the signatures of ten per centum, of the qualified voters of such county or the City of Baltimore, as the ease may be, calculated upon the whole number of votes ³⁵⁶ cast therein respectively for governor at the last preceding gubernatorial election. Article 16, section 3 (a), (Code, vol. 1, p. 164). The vote to be taken on any referendum would be at the next ensuing election held throughout the State for members of the House of Representatives of the United States.

Section 2 (Code, vol. 1, p. 163). These provisions of 'article 16 came before this Court for consideration in the case of Strange v. Levy, 134 Md. 645 . The City of Annapolis had acquired all of the stock of the Annapolis Water Company and owned and operated the company as a public utility pursuant to the provisions of chapter 322 of the Acts of 1904, and chapters 86 and 118 of the Acts of 1912, and, by chapter 205 of the Acts of 1918, the municipality secured an amendment of the company’s charter so as to provide inter alia for the management and operation of the utility by a board of five directors, composed of designated public officials and the appointees of the municipality. While purporting to be the amendment of a private corporate charter, it was, as is established by its purpose and other provisions, fundamentally a public local law of Anne Arundel County, and it was made effective Horn the date of its passage, and concluded with the declaration that it was an emergency law and necessary for the immediate preservation of the public health and safety, and that it had been passed conformably to the requirements of the vote required by article 16.

The next case was the appeal of Richardson v. Blackstone, 135 Md. 530 , involving the construction of the provisions considered in Strange v. Levy, supra. In this second case, the act was an amendment of the Code of Public Local Laws, article 20, title “Somerset County” and sub-title “Crisfield.” See Acts of 1916, ch. 458. The statute in