Gans v. Carter

Briscoe, J., delivered the opinion of the Court. Johns H. R. Nicholson of Baltimore City, survivor of Andrew J. Nicholson, partners, trading as J. J. Nicholson & Sons, on the 14th of January, 1892, executed a deed of his individual and of the firm’s property to the appellees, John M. Carter and Matthew K. Aiken, in trust for the benefit of creditors. The bond which they executed and filed as trustees contained but one surety, viz., The Fidelity and Deposit Company of Maryland. On the 20th of January, 1892, an attachment at the suit of the appellant, was issued against Johns H. R. Nicholson and laid in the hands of the trustees as garnishees, and the judgment, upon the plea of nulla bona, being in favor of the trustees, the plaintiff has appealed.

The question then in the case is whether the Act of Assembly of 1890, chapter 263, incorporating the Fidelity and Deposit Company of Maryland, in so far as it is authorized to become sole surety in all cases where by law two or more sureties are required for the faithful performance of any trust or office, is constitutional? The Code provides that every trustee for the benefit of creditors shall give bond with sureties for the faithful performance of his trust. Art. 16, sec. 205. By its charter the Fidelity and Deposit Company of Maryland, is authorized to become sole surety in all cases ⁸ where two or more sureties are required for the faithful performance of any'trust or office; and “it shall and may he lawful," its charter further provides, “for any Court, register, clerk, or other officer to approve said company as sole surety in all such cases." This provision, it is contended, is in conflict with the Constitution which declares that “The General Assembly shall not pass local or special laws in any of the following enumerated cases, viz., For extending the time for the collection of taxes; granting divorces; changing the name of any person; providing for the sale of real estate belonging to minors or other persons laboring under legal disabilities, * * * giving effect to informal or invalid deeds or wills * * And the General Assembly shall pass no special law for any case for which provision has heen made by an existing general law.

The General Assembly at it first session after the adoption of this Constitution, shall pass general laws providing for the cases enumerated in this section which are not already adequately provided for, and for all other cases where a generallawean be made applicable."' Art. 3, sec. 33, Const. There cannot be, it seems to us, any difficulty as to the object and the mischiefs intended to be remedied by this clause of the Constitution. In the debate upon it in the Constitutional Convention of 1864, by which this limitation upon the legislative power was for the first time imposed, it was said that nearly three-fourths of the time of the Legislature was taken up in the consideration of the local and special laws; and that in many instances special laws had been passed affecting injuriously private and public rights upon mere ex parte applications. And it was deemed advisable therefore in certain cases enumerated in this section to deny altogether the exercise of legislative power; and in order to relieve the Legislature of the necessity of considering applications for special laws in other cases, it was deemed ⁹ advisable to provide that the General Assembly should not pass a special law in any case for which provision had been made by an existing general law.

And further than this it was made the duty of the Legislature to pass general laws providing not only for the cases enumerated in this section, but in all other cases in which a general law could be made applicable. We all agree, therefore, that the Legislature has no power to }Dass a special law in any case for which provision has been made bj1- a general law. The appellant’s contention assumes, and must necessarily assume, that there was a general law authorizing and empowering the Fidelity and Deposit Company to become surety on a trustee’s bond for the faithful performance of a trust. And herein lies the error of his