Leonardo v. Board of County Commissioners

²⁹⁵ Prescott, J., delivered the opinion of the Court. In this case, there are cross appeals from a decree of the Circuit Court for St. Mary’s County. The decree enjoined the appellees and cross-appellants (hereafter called “appellees”) from collecting a front foot benefit tax assessed and levied against two lots belonging to Ercole Leonardo, and wife, two of the appellants and cross-appellees (all of the appellants and cross-appellees are hereafter called “appellants”). It also authorized the appellees to collect ad valorem taxes assessed and levied against the said two lots, and front foot benefit taxes and ad valorem taxes assessed and levied against all the other lots in a separate taxing and assessment district; provided and upon the condition that two additional lots be included in the separate taxing and assessment district and that front foot benefit and ad valorem taxes be assessed and levied against these two lots.

The appellants attack the constitutionality of the legislation by which the taxation was authorized and the manner of performance of a contract for the construction of erosion prevention works, which construction was the cause of the taxation as authorized. The appellees appeal from that part of the decree which concerns the collection of the front foot benefit tax on the Leonardos’ lots, and the requirement that two additional lots be included in the taxing district. Chapter 66, Acts of 1950 of the General Assembly authorized the County Commissioners of the State to set up special taxing districts for erosion prevention work in every subdivision of land in any county subdivided for residential and business uses, and abutting or bordering upon the Chesapeake Bay and tributaries, or upon any other stream or body of water in the State, as shown in plats recorded among the land records in the county. The act further provided that the erosion prevention works were authorized after written application of 75 per cent of the property owners in the district.

To finance the project, the County Commissioners, acting as a District Council, were authorized to issue notes, certificates of indebtedness or bonds maturing serially, payable in fifteen years and guaranteed as to principal and, interest by the county. ²⁹⁶ The act required a hearing to be held in connection with the plans and specifications and the award of a contract to the lowest responsible bidder, after the customary advertising. After construction of the erosion prevention works, the owners were to be subject to a benefit charge on each lot in the district according to the benefits received by each lot, as determined by the Commissioners after a public hearing. In addition, the act authorized an ad valorem tax against all the property in the district to meet payments of interest and principal on the county obligations and to pay for the maintenance and repair of the erosion prevention works. It further provided that the County Commissioners could reimburse themselves for expenses incurred in the administration of the project in an amount not to exceed two hundred dollars each, annually. “Tall Timbers on the Potomac” is a residential subdivision abutting and bordering on the Potomac River in St. Mary’s County.

In 1951, the required 75 per cent of the lot owners petitioned the County Commissioners to have erosion prevention works constructed in their district. After a public hearing with respect to the plans and specifications, the county advertised for bids, and, on August 28, 1951, the county entered into a contract with the lowest responsible bidder, Neil MacDonald, whereby the contractor agreed to (a) construct approximately 2,150 linear feet of timber seawall at $23.00 per linear foot measured in place; (b) construct timber jetties spaced 30 feet on centers at $10.00 per linear foot, and (c) to place earth back-fill in place from the existing earth banks to the new seawall for $1.50 per cubic yard measured in place. According to the record, the surveying of the projects began in the early part of 1951, and the construction of the erosion prevention project was completed in February, 1953, and was duly accepted and paid for. While the construction was in progress, approximately 150 feet of the seawall was damaged by storms.

The plans and specifications called for a “free standing” wall. The County asked for a bid from the contractor for “tieing” the seawall to the shore and for straightening the seawall damaged by the storms. The bid was $3,000.00 for the extra work ²⁹⁷ which the County Commissioners concluded was reasonable and which bid they accepted on June 6, 1952. The authority for an award in extras was contained in the contract.

By reason of two decisions of this Court in February, 1951, with respect to the type of legislation which may be enacted at a “short session” of the General Assembly, serious doubt was cast upon the constitutionality of Chapter 66, Acts of 1950. Accordingly, that act was introduced in substantially the same form at the next regular session of the General Assembly following these Court decisions and was enacted as Chapter 277, Acts of 1953. All actions taken under the 1950 Act by any Board of County Commissioners were validated and confirmed by the provisions of this later act. At the time of the effective date of this later act on June 1, 1953, the erosion prevention works contract had been fully completed.

Thereafter, the County Commissioners by resolution of August 11, 1953, authorized the issuance of serial bonds of the county in the principal amount of $100,000 to pay for the entire expense of the construction of the said project. The bonds were subsequently sold at a public sale. As disclosed by the record, the total cost of the project, including legal services, printing of the bonds and newspaper advertising, amounted to $97,160.31. On October 13, 1953, the County Commissioners, acting as District Council for the Taxing and Assessment District of Tall Timbers on the Potomac, adopted a resolution in which they designated the territory within said district to bear the special taxation authorized by Chapter 277, Acts of 1953, by reason of the benefits accruing to certain lots within the said district.

That resolution found that the waterfront lots had been benefited by the project in a ratio of two to one to the benefit of the non-waterfront properties in the district. A front foot benefit tax assessed on the said basis and an ad valorem tax of $2.50 per $100 of the assessable basis were levied on all the lots in the district. Bills for the special taxation for the year 1954 were mailed to all of the lot owners in the district, and appellants, Leonardos, objected to the special levy on their lots Nos. 43 and 44. On July 6, 1954, the Leonardos filed a bill of complaint ²⁹⁸ in the Circuit Court for St. Mary’s County, seeking an injunction to declare Chapter 66, Acts of 1950, and Chapter 277, Acts of 1953, unconstitutional.

Thereafter, on October 5, 1954, eight of the residents of the District moved the court for permission to join as parties complainants in the Leonardo suit, and they were duly joined in the proceedings. These eight additional complainants were among those who petitioned the County Commissioners to have constructed the erosion prevention works in Tall Timbers on the Potomac. After a hearing in open court, the Chancellor passed a decree as above noted, and the respective appeals were noted. I The appellants first contend that the title of Chapter 277 of the Acts of 1953- is invalid under Article 3, section 29, of the Constitution of Maryland.

Said section reads, in part, as follows: “* * * and every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title; * * The appellants claim that the title is defective because: (a) the body of the act (sec. 161 (c)) requires a levy of ad valorem taxes upon all the assessable property in the county should the “benefit” and “district” taxes prove insufficient to meet the obligations upon the bonds issued; (b) said section 161 (c) contains certain penal provisions; (c) the body of the act provides for the allowance of personal expenses incurred by the County Commissioners because of erosion projects; (d) section 158 (b) provides a different method of selling bonds from the provisions of article 31, secs. 34, 35 and 36 (Code 1939); and none of these items is specifically mentioned in the title. Section 29 of Article 3 of the Constitution has been involved in cases before this Court on numerous occasions. It has been included in the last three Constitutions of this State, and its purposes are to prevent the combination in one act of several distinct and incongruous subjects, and to inform the members of the legislature of the nature of the bills introduced, which are usually read to them by their titles only, and to permit the citizens of the State to know of proposed legis ²⁹⁹ lation. The general rule of its construction is that every presumption favors the validity of the statute, and reasonable doubt is enough to sustain it.

The appellants here assert no claim that the statute embraces more than one subject. The cases arising under this section of the Constitution relating specifically to the requirement that the subject be described in the title may be generally divided into those in which it is contended the title is not sufficiently descriptive, and those where it is claimed the title is misleading. This Court has consistently held that the Constitution is complied with if the title of the legislation /airly advises the legislature and the public of the real nature and subject matter of the legislation sought to be enacted. Shipley v. State, 201 Md. 96, 102 , 93 A. 2d 67 .

In order to do this, it is unnecessary that the title be an abstract of the text of the proposed statute, nor need mention be made of the means and the methods by which its purpose is to be accomplished. Bond v. Mayor and C. C., 116 Md. 683, 688 , 82 A. 978 ; Painter v. Mattfeldt, 119 Md. 466 , 87 A. 413 . Having these principles in mind and the above mentioned objections, we shall now examine the title to Chapter 277. It provides for seven new sections to Article 25 of the Code and then states in part: ''* * * said new sections * * * to be under the new sub-title 'Erosion’, authorizing the County Commissioners of this State to set up Special Taxing Districts for erosion prevention work and specifying their powers and duties for these purposes; * * We think this title is sufficiently comprehensive to fairly advise the legislature and the public of the real nature and subject matter of the statute, and that it is not misleading, (a) The fact that it fails to mention the ad valorem tax is neither deceptive nor misleading.

This is a detail incident and germane to the subject-matter of the act. (b) And the same applies to the penal provision, which is limited to those persons handling funds of the erosion projects, and to (c) the provision for the payment to the County Commissioners for expenses incurred in inspecting the projects, (d) We ³⁰⁰ also do not consider that the failure to mention the method of selling bonds in the title rendered it defective or misleading. Section 33 of Article 31 provides for the method of sale of bonds sold by “public bodies”, unless the enabling act authorizing their issuance shall specifically exempt said bonds from the provisions of said section, or provides a different method for the sale of the bonds. Section 158 (b) does both.

We think the method of the sale of the bonds was germane to “erosion prevention work” and was one of the “powers and duties” of the County Commissioners specified in the title as above noted. We fail to discover anything deceptive or misleading here. The appellants also contend that the title is misleading in that it refers to “erosion prevention work”, yet the body of the act names “residential and business properties abutting or bordering on rivers and streams in recorded subdivisions”. The only reason assigned by the appellants that this is misleading is, “(t)he indication is that the act refers to erosion in the whole State of Maryland”.

We find no merit in this contention. The title refers to “erosion prevention work”. The body of the act limits its application to business and residential subdivisions abutting or bordering on certain waters in the State. This does not present the situation of the body of a statute attempting to enlarge upon a specific limitation in its title as was the case in Buck Glass Co. v. Gordy, 170 Md. 685, 688 , 185 A. 886 , but the converse; so the appellants fail to sustain their argument that the title is misleading under this point.

The appellants make their final attack under this first heading by saying that Chapter 277 of the Acts of 1953 repealed sections 167 to 173 of Article 25, (the same being Ch. 66 of the Acts of 1950), and added seven new sections known as sections 156 to 162 to follow immediately after section 155 of the Code, 1951; that the 1951 Code numbered the provisions of Chapter 66 of the Acts of 1950 as sections 149 to 155, inclusive; and that the effect of the repeal of Chapter 66 of the Acts of 1950 by Chapter 277 of the Acts of 1953 was to remove sections 149 to 155 from the 1951 Code. They claim this results in a change in the numerical ³⁰¹ sequence of the sections of the Code and contravenes that portion of section 29 of Article 3 of the Constitution that reads: “* * * And whenever the General Assembly shall enact any Public General Law, not amendatory of any section or article in the said Code, it shall be the duty of the General Assembly to enact the same, in articles and sections, in the same manner as the Code is arranged, * * *.” In passing Chapter 277, the legislature enacted the same under a new sub-title by article and in sections in the same manner as the Code is arranged. We think this fully complied with the constitutional requirement, and the fact that there are presently no sections 149 to 155, inclusive, in the 1951 Code does not violate this section of the Maryland Constitution. II The appellants next contend that Chapter 66 of the Acts of 1950 was unconstitutional and it was not rendered valid by Chapter 277 of the Acts of 1953.

They claim that a very substantial part of the work of the erosion project had been completed when Chapter 277 was enacted and it was “illegal” for the legislature “to attempt to make good a project which had already been substantially completed”, as it amounted to the taking of property without due process of law. We see no necessity to pass upon the constitutionality of Chapter 66. Between the passage of the two acts, the Commissioners had begun work on the erosion project. Surveying began in 1951 and by December of 1952, a substantial part of the construction had been completed.

At the time Chapter 277 was passed, the Commissioners had contracted for the work to be done, but had not issued the bonds nor levied the taxes. If we assume, without deciding, that Chapter 66 were unconstitutional, this action of the Commissioners would be without authorization and ultra vires. However as pointed out above, Chapter 277 specifically ratified and confirmed any action taken and things done by the Commissioners under the purported authority of Chapter 66. ³⁰² There can be no question that a contract for this kind of construction is one that the legislature would have the power to sanction and authorize; and there was no disturbance of, or interference with, vested rights. In a situation of this kind, there can be no question that the legislature possesses the power to pass a retrospective law to make valid an ultra vires contract.

In O’Brian v. County Commissioners, 51 Md. 15 (1879), this Court had before it a situation where work had been partially completed for street paving pursuant to a statute which, while the work was in progress, was declared unconstitutional. Curative legislation was passed, but the objection was raised that the ultra vires contract could not be made valid. At page 24 of the opinion this language appears: “If the Legislature possess the power to authorize one act to be done, it can by a retrospective Act, cure the evils which existed because the power thus conferred has been irregularly executed. Thomson v. Lee County, 2 Wall. 327; People v. Mitchell, 35 N. Y. 551 . “In the same manner it has been decided in numerous cases, that the Legislature may render valid a contract made by a municipal corporation, though ultra vires at the time it was made, if the contract is one which the Legislature might originally have authorized.

Cooley, 379-381, and notes. “This principle applies with peculiar force to the case of a contract relating to a work in which the public is interested, and for the public benefit, after it has been executed; provided it be a contract which the Legislature had the power to permit or sanction in advance.” See also C. and P. Tel. Co. v. Balto. City, 89 Md. 689, 714 , 43 A. 784 , 44 A. 1033 ; Water Co. v. Havre de Grace, 150 Md. 241, 253 , 132 A. 768 . We therefore conclude that Chapter 277 rendered valid the contracts for the construction of the erosion project made by the Commissioners, and there was no taking of property without due process of law. ³⁰³ Ill The appellants further claim that Chapter 277 violates section 54 of Article 3 of the Maryland Constitution.

This section reads as follows: “No County of this State shall contract any debt, or obligation, in the construction of any Railroad, Canal, or other Work of Internal Improvement nor give, or loan its credit to or in aid of any association, or corporation, unless authorized by an Act of the General Assembly, which shall be published for two months before the next election for members of the House of Delegates in the newspapers published in such County, and shall also be approved by a majority of all the members elected to each House of the General Assembly, at its next session after said