Mayor of Baltimore v. Stoll

Irving, J., delivered the opinion of the Court. This is an appeal from a pro forma order of the Superior Court of Baltimore City, directing a mandamus to issue against the appellant to compel the performance of certain supposed duties under the Act of 1878, ch. 159. The title of the Act is, “An Act to repeal ch. 220 of the Acts of 1876, entitled an Act to establish a free bridge over the Patapsco river, at or near the present site of Light street bridge, * * * and to enact the following in lieu thereof: ” By the first section of the Act, the Mayor and City Council of Baltimore and the County Commissioners of Anne Arundel County are “authorized, empowered and directed” to purchase the bridge over the Patapsco river, known as “Light street bridge,” and to keep the same as a free bridge, if the owners will, on or before the first day of January, 1879,.agree to sell the same unto the said Mayor and City Council of Baltimore, and the County Commissioners of Anne Arundel County, at a price, and on such terms and conditions as to them may appear fair and reasonable. By the second section they are “ authorized, empowered and directed,” if they cannot buy the said bridge, to build a free bridge over said river, from some suitable point on the Anne Arundel shore to some convenient and practicable point in Baltimore City; and provides for the condemnation or purchase of necessary lands and material for its construction; provided the whole cost “ shall not exceed in the aggregate the sum of. forty thousand dollars.” The third section provides for a keeper for opening and closing the draw, but makes no provision respecting the size or extent of the draw.

By the fourth section the said Mayor and City Council, and the County Commissioners of Anne Arundel are “authorized and directed ” to levy on the assessable property of the city and county respectively “ at such time or times as they may ⁴³⁸ deem best, such sums of money as may he necessary to carry out and secure the provisions of this Act, the expense thereof to be borne equally by said city and county, a portion thereof at least to be levied at their regular annual levy for the present year.” The fifth section provides for maintaining the bridge when purchased or built. The special prayer of the petition for mandamus is that the Mayor and City Council of Baltimore may be compelled to levy a portion of the costs of carrying out the provisions of said Act in accordance with the provisions of the said Act. The appellants by their answer set up that the Act is invalid, because its title is defective under the Constitution of the State, and also because it is invasive of the public rights of navigation. They also claim that the section of the Act sought to be enforced by mandamus is directory only, and not mandatory in its character.

They admit that when the mandamus was issued, the annual levy had bee.n made, and was in process of collection; and that it included no levy for the purposes of said Act. The appellee demurred, and the demurrer being sustained, and the order for the mandamus having passed, an appeal was taken to this Court. The only question before us, therefore is, was the mandamus properly ordered ? or should the demurrer have been overruled? This Court has so often passed upon the question involved in the appellant’s objection to the said Act of 1878, by reason of infirmity of title under section 29, Art. 3, of the State Constitution, that it is unnecessary to say more than that the objection is fully covered by the decision of the Court in the case of the County Commissioners of Talbot County vs. The County Commissioners of Queen Anne’s County, 50 Md., 245 .

The title of the Act therein decided upon, and the one herein considered, are so nearly identical in form, that it- is impossible to see good reason for holding 'this one unconstitutional and that one free from objection. ■ ■ ⁴³⁹ The only thing the petition for the mandamus prays for, is to compel the respondents to levy some portion of the cost of the contemplated work or purchase, at their annual levy for 1878. The prayer is to compel something to he done which, when the petition was filed, could not he done at the time, and in the manner prescribed hy the Act, if the Act, in that respect, is to he regarded as compulsory; for it is conceded in the pleadings that the levy was made and taxes sent out for collection. The appellants insist that the Act, in that particular, is not mandatory, hut directory only, and so regarding it, no levy was made in 1878. A discretion to some extent was confided in the appellants in other parts of the Act, so that it could not he regarded as wholly mandatory without any qualification.

They were not to buy the existing bridge unless they and the owners could agree, and the owners would accept a price which they thought reasonable. Failing to buy the existing bridge, they were to build a new one, to cost not more than forty thousand