M. C.C. of Baltimore v. Williams

Pattison, J., delivered the opinion of the Court. This appeal is from a decree permanently enjoining the appellants from using, or permitting to be used, any part of the fund known as the “Park Fund,” or of the Park Tax for other than park purposes, and from allowing said Park ⁵⁰⁴ Fund or Park Tax, or any part thereof, to be distributed except by the Board of Park Commissioners of the City of Baltimore; and ordering and decreeing that the appellants replace upon the books of the city, to the credit of said Board of Park Commissioners, the entire amount of money standing to the credit of said board as of December 31st, 1913, less any sums that have been paid since said date on the order of said Board of Park Commissioners for park purposes. By an ordinance of the Mayor and City Council of Baltimore (Eo. 44) passed on the 28th day of March, 1859, an association was empowered to lay tracks for a city passenger railway upon certain streets of the city. The ordinance provided that the treasurer of such association, for the rights and privileges thus granted it, should pay to the City Register, quarterly, one-fifth of the gross receipts accruing from the passenger travel upon said road, “the same to be applied to the establishment and improvement of the city boundary avenue, * * * and to the .location of such park or parks as may be determined upon by the Mayor and City Council of Baltimore for the benefit of the people of said city.” The Mayor and City Council^ however, were given the power, upon the completion of said improvements, “to reduce the rate of fare on passenger travel to such limit within the range of one-fifth of the gross receipts of said road, as they may deem expedient and advisable, the city at the same time relinquishing her interest in the receipts from said road to the extent of said reduction on said fare.” By a resolution subsequently passed by the Mayor and City Council on the 4th day of June, 1860, the Mayor was given the authority to appoint a commission, consisting of four persons, known thereafter as the Park Commission, to select and purchase site or sites for the proposed park or parks.

This commission was appointed, and, thereafter, on the 21st day of July, 1860, an ordinance (Eo. 60) was passed containing, among others, the following provisions: ⁵⁰⁵ “Sec. 2. And be it enacted and ordained, That the revenue derived and to be derived by the Mayor and City Council of Baltimore from the city passenger railways be and the same is hereby pledged and set apart for the payment of the interest on the certificates of stock to be issued under this ordinance. “Sec. 3. And be it enacted and ordained, That one-fifth of the revenue aforesaid remaining after the payment of interest aforesaid, shall be invested by the register in stocks of the City of Baltimore, as a sinking fund for the redemption of the stock created hy this ordinance. “Sec. 4. And be it enacted and ordained, That the four-fifths of the said revenue shall be paid by the register, on the order of said commission, as the said revenue shall be received, for the improvement and maintenance of the park or parks aforesaid.” The aforegoing resolution and ordinance, passed on the said 4th day of June and the 21st day of July, respectively, were subsequently confirmed by the Act of the Genera] Assembly of Maryland passed at its January Session, 1862, Chapter 29.

This Act provided that all acts then done or which might thereafter he done “by the Mayor and City Council, or other officers of said city, or hy the Park Commissioners acting under the provisions of said resolution and ordinance, shall have the same effect as if the said Mayor and City Council, prior to the passage of the said resolution and ordinance, had been expressly empowered by an Act of the General Assembly of Maryland, to enact a resolution and ordinance, in the precise terms of said resolution and ordinance, and to provide for carrying the same into effect.” This Act likewise gave to the Park Commissioners power to pass “rules and regulations for the government- and the preservation of order within the said parks, as they may deem expedient,” and to prescribe fines to be imposed for all violations of such rules and regulations, such fines, when ⁵⁰⁶ imposed and collected, to be “appropriated to tbe purposes of said parks.” The said resolution and ordinance were also expressly confirmed by sub-section 16 of section 6 of the present City Charter, and to which reference will hereafter be more fully made. By Chapter 71 of the Acts of 1862, the above-mentioned association, to which the franchises and privileges aforesaid were granted, was incorporated as the Baltimore City Passenger Railway Company, and in the corporation so formed the Act vested all the rights, powers and privileges that were granted to the aforesaid association by said Ordinance Eo. 44, approved on March 28th, 1859, upon the terms and conditions, and subject to the limitations and restrictions therein contained. In this Act we find the provision, “That the corporation hereby created be and they are hereby required to pay over to the register of the City of Baltimore the one-fifth portion of the whole passenger receipts of this corporation, at or before the stated periods named in the aforesaid recited ordinance of the City of Baltimore.” Franchises and privileges similar to those granted under Ordinance Eo. 44 aforesaid were, from time to time, granted by the Mayor and City Council to other associations and corporations to lay tracks in the bed of other streets in the city, subject, however, to the requirement that they pay unto the city one-fifth of the gross receipts from passenger travel for park purposes. The payment by said city railway companies of twenty per cent of the gross receipts from passenger travel continued until the passage of the ordinance (Eo-. 48) of June 9th, 1874, which reduced the amount to be paid by them out of such gross receipts to 12 per cent, and the payment of this portion of the gross receipts to the city continued until the passage of the Act of 1882, Ch. 229.

That statute reduced the charge for each passenger over the age of 12 years to five cents, and for each passenger between the age of four and ⁵⁰⁷ twelve to three cents, and provided “that in lieu and substitution of the twelve per cent tax now imposed upon and payable by the said several pasenger horse railway companies mentioned in the first section of this Act, that the said several passenger horse railway companies shall pay to the Mayor and City Council of Baltimore a tax upon their gross receipts of nine per cent, to bo paid at the same time and in the same manner as the tax of twelve per cent is now paid by said companies.” This Act is now found in the City Code of 1906, section 797, in the following language: “The said several passenger street railway companies shall pay to the Mayor and City Council of Baltimore a tax rrpon their gross receipts of nine per cent, in quarterly instalments, on the first day of January, April, July and October, in each year.” -Sub-section 16 of section 6 of the present City Charter, which we have already referred to as confirming the aforesaid resolution of June 4th, 1860, and the ordinance approved July 21st, especially provided, “That all the rights., privileges and authority heretofore granted by ordinance, to the Bark Commissioners, are hereby transferred to the Board of Bark Commissioners”—Section 90 of the Charter. The powers and duties of the Board of Bark' Commissioners, in addition to those transferred to it under the aforesaid sub-section 16 of the Charter, are stated in the succeeding sections 91 to 97, inclusive. Iu the last of these sections (section 97) as passed by the General Assembly of Maryland at its January Session, 1898, it is. provided: “The said Board of Park Commissioners shall have full power to employ and compensate all persons, whom, in its judgment, it may deem proper, in maintaining and supporting such parks, squares, springs and monuments, or any other buildings, collection, garden or reservation provided for in this Article. The distribution of the Park Fund for the maintenance of the different parks and squares shall he made by the Fark Commissioners.” ⁵⁰⁸ By the Act of 1900, 'Chapter 109, said section 97 of the Charter, together with section's 10, 37, 59, 77 and 176 thereof, was repealed and re-enacted with amendments.

Section 97 was amended by adding thereto the following: “Provided, nothing contained in this section or elsewhere in this Article shall be taken or construed to exempt the said Board of Park Commissioners from a full compliance with all the requirements of section 36 of this Article, and the said Board of Park Commissioners shall spend no part of said Park Fund unless such expenditure is authorized and included in the annual ordinance of estimates; and provided, further, the Board of Park Commissioners who go into office on the first day of March, in the year 1900, shall make such report to the Board of .Estimates as soon thereafter as possible, which report shall include all expenditures to be made by said Board of Park Commissioners for the remainder of the current fiscal year, and the Board of Estimates shall prepare and submit to the City Council a supplemental ordinance of estimates, to include the amount which the said Board of Estimates may deem proper to be spent by said Board of Park Commissioners for the remainder of said current fiscal year.” Section 36 of the Charter, to which reference is made in the aforegoing section 97, creates what is known as the Board of Estimates, consisting of the Mayor, City Solicitor, Comptroller, President of the Second Branch of City Council, and President of the Board of Public Improvements. They are required to meet annually, between the days therein named, and make out “three lists of moneys to. be appropriated by the City Council for the next ensuing fiscal year.” These lists are known as, first, the departmental list of estimates, consisting of the amounts required to be annually appropriated to pay the expenses of conducting the public business; second, the estimates for new improvements, being a list containing all amounts to be appropriated for new im ⁵⁰⁹ proveinonts to he constructed by any department of the city; third, estimates for annual appropriations, which consists of the amounts required to be annually appropriated to charities, educational, benevolent or reformatory institutions of the city, etc. To enable tbe Board to make out the first of these lists the-“President of the two branches of City Council and the heads, of the departments, heads of sub-departments, municipal officers not embraced in a department, and special commissioners or hoards, shall * * * send to the said Board, in writing, estimates of the amounts needed for the conduct, respectively, of the City Council, departments, sub-departments, municipal officers, not embraced in a department, commissioners or boards for the next ensuing year. Such estimates shall he verified by the oath or affirmation of persons, making them,” specifying in detail the objects thereof. And to enable the said Board of Estimates to make out the list of estimates for the new improvements, the above named beads of departments, etc., are likewise required to file with the Board “their recommendations as to the amounts which they may consider will be needed in their respective departments for improvements.” Upon the completion of these lists an ordinance1 is drafted and submitted to the City Council at a meeting to be called by tbe Mayor, which is to hold daily sessions for its consideration until an ordinance is passed fixing and establishing the appropriations for the succeeding fiscal year, and when so passed and approved by the Mayor it is. known as the Ordinance of Estimates for such year.

The section then provides, that in case of any deficiency there shall be a pm rata abatement of all appropriations (except as to those mentioned therein) and “in ease of any surplus arising in any fiscal year, by reason of an excess of income received from tbe estimated revenue over tbe expenditures. for such year, the said surplus shall become a part of the annual revenue of the city and shall be available for the general expenses of the city for the next ensuing fiscal year.”’ ⁵¹⁰ The record discloses that after the expenditure for park purposes of the appropriation contained in the Ordinance of Estimates for the year ending December 31st, 1913, there remained to the credit of the Board of Park Commissioners, on the books of the City Comptroller, the sum of $12,716.60. This account the Comptroller, acting under the instruction's of the Board of Estimates, transferred from the credit of the Park Board to the credit of the general treasury of the city, hut subsequently a part of this sum, $7,532.87, was re-transferred to the credit of the Park Board; the balance of the amount, $5,183.73, was retained to the credit of the general revenue of the city. It was to restrain the appellants from expending the amount so retained by them to be expended for general purposes of the city government, and to require them to replace the said amount to the credit of the Board of Park Commissioners, that the injunction in this case was sought and obtained. It is contended by the appellees (plaintiff below) : 1st.

That the Act of 1900, Chapter 109, falls within the prohibition of that clause of section 29 of Article 3 of the State Constitution, which provides that “every law enacted by the General Assembly shall embrace but one subject and that shall be described in the title,” and that said Act, in respect to section 97, is therefore void, and that we, in reaching our conclusion upon the question presented by this appeal, are to consider the law as it stood prior to the passage of such Act, which, as they contend, does not authorize the diversion of the fund in question as here attempted by the appellants, but that it vests in them alone, the authority to expend and distribute such fund for park purposes only, as mentioned and defined