Mayor of Cumberland v. Magruder

Miller, J., delivered the opinion of the Court. This appeal is from an order granting an injunction, prohibiting the appellants from issuing bonds of the city of Cumberland to raise money for building a bridge over the Potomac river, and from executing certain contracts alleged to have been entered into for its construction. A motion to 'dismiss has been made on the ground that the paper filed as an answer by the Mayor and Councilmen is no answer, not being under the seal of the corporation. We need not decide whether this objection has been waived, and the answer accepted by the replication thereto, or by any subsequent proceedings in the case, so as to sustain the appeal if it had been taken by the corporation alone, because wo are satisfied the case is before us on the appeal of the other defendants whose answers are unobjectionable.

The motion is therefore overruled. The bill was filed by certain residents and tax payers of the city of Cumberland, and among other allegations it charges that the corporate authorities have entered into contracts with the other defendants, for amounts exceeding in the aggregate $24,000, for erecting a bridge across the Potomac at a certain point; that this bridge when completed will cost at least $30,000, and that to raise this sum the Mayor and Councilmen are preparing to issue coupon bonds of the city, payable to bearer, by which as well as by the contracts aforesaid, if executed, the faith and credit of the city will become pledged to an amount far exceeding $10,000,. without first submitting the question to the decision of a majority of the legal voters of the city, in compliance with its charter as ■amended by the Act of 1864, ch. 121. The bill then avers ³⁸⁵ that the authority to issue bonds conferred by the Act of 1867, eh. 29, under which the city authorities pretend to act in the premises, can be executed only in the mode pointed out and subject to the restrictions contained in the charter, or*, in other words, that the provision in the Act of 1864, that the faith and credit of the city shall not be pledged, for any sum exceeding $10,000, without the previous assent of a majority of its legal voters, is not repealed by the subsequent law of 1867, but applies to and governs the exercise of all the powers in respect to the issuing of bonds and making contracts to be found in that statute. We must determine whether that is the true construction and effect of these two laws, for if it be, then it is clear the restraining power of a Court of Equity was rightly invoked by the complainants, and properly exercised by the order appealed from.

The law of 1864 is an amendment of the charter of the city. Its fourth section contains grants of certain pow'ers usually conferred upon municipal corporations, including the power to levy a tax not exceeding fifty cents in the hundred dollars and then concludes thus: “provided that they ” (the Mayor and Councilman) “shall not have power to close or alienate any public street or alley, or pledge the credit aiid faith of said city for any sum exceeding ten thousand dollars without first submitting the question to the voters of said city, after twenty days public notice, and a majority of the legal voters assenting thereto.” It is insisted by the appellants that this clause is strictly a proviso, which simply imposes a limit or restraint upon the exercise of the powers granted in the preceding part of the same section, and that the subsequent grant of power to build the bridge and issue bonds for the purpose, is a new and independent authority, to be executed entirely irrespective of this charter restriction. But whatever may be the ordinary office of a proviso in excepting something from the enacting clause, or qualifying or restraining its generality, or excluding some possible ground of misinterpretation, in our judgment no such narrow inter ³⁸⁶ pretation ought to be placed on this provision. It is engrafted upon the effective part of the charter of a municipal corporation, and no matter by what phrase it may be preceded, is in terms an absolute and unqualified negation of all power to close or alienate any of the public streets, and an equally comprehensive and definite restriction upon the exorcise of any power to pledge the faith or credit of the city beyond the limited sum.

Its language is too plain to be misunderstood, too imperative to be disregarded, and the result it seeks to attain too salutary and important to be defeated by any nice construction founded on the position in which it is placed, the connection in which it is found, or the technical word by which it is prefaced. In respect to position and connection it is equally potent as if enacted in a separate section. It is moreover a most wholesome and wise restriction, intended to protect in