McGraw v. Merryman

Boyd, C. J., delivered the opinion of the Court. At the last session of the General Assembly of Maryland there was passed “An Act h> extend the limits of Baltimore City by including therein parts of Baltimore County and Anne Arundel County,” it being Chapter 82 of the Acts of 1918. The validity of the Act has been attached on several grounds—the principal one being that there is no referendum in it, as the appellees contend section 1 of Article 13 of our State Constitution requires. Although there are five appeals from orders and decrees passed by the Circuit Court for Baltimore County and one from a decree of the Circuit Court for Anne Arundel County, the main questions are involved in all of them.

The cases were at the request of the attorneys for the respective parties advanced by us, and were heard together. As no question was raised in any of them as to the procedure adopted, it will be unnecessary to make further reference to that. Much stress was laid by the attorneys for the appellees upon the alleged injustice of this Act, but no one will challenge the rule by which we must be guided in our considera ²⁵⁰ tion of these appeals, that if the Legislature had the power to pass the Act before us without a referendum, and in the form it was passed, this Court has no right to call in question the wisdom or even justice of it. As said by Judge Grayson in Groff v. Mayor, etc., of Frederick, 44 Md. 67 , in a case involving the validity of an Act extending the limits of Frederick City, after referring to the power of the Legislature to create municipal corporations-, to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, etc.: “The Legislature having this constitutional power, the exercise of it is wholly within its discretion, and it can in no wise be controlled by the courts,” and he concluded that opinion by saying: “Whether the power was wisely or unwisely bestowed, or the mode in which it has been exercised is just or unjust, and burdensome upon the citizen, are questions with which the courts have no right to deal, but are within the exclusive control of the Legislature.” Rut the rule is too universally adopted by this and other Courts to- require other citations; of authorities, and we will proceed at once to the consideration of such questions as should be passed on by us.

The one that first presents itself, and is of the gravest importance, is the scope and effect of the decision in Daly v. Morgan, 69 Md. 460 . In that case the constitutionality of Chapter 98 of the Acts of 1888, which was entitled, “An Act to extend the limits of Baltimore City by including therein parts of Baltimore County,” was before the Court. There was a referendum in that Act, and the question of annexation was submitted to the respective voters of the three parts of Baltimore County proposed to be annexed to Baltimore City. In two o-f them a majority was declared to be in favor of annexation, and in the others it was against it.

In Article 13 of our S-tate Constitution, entitled “Hew Counties,” .section 1, which was then in force, and still is, authorizes the Legislature to provide by law for organizing new counties, locating and removing county seats and chang ²⁵¹ ing county lines, and contains this provision: “nor shall the lines of any county he changed without the consent of a majority of the legal voters residing within the district, which, under said proposed change, would form a part of a county different from that to which it belonged prior to said change.” It is contended by the appellees that that provision applies here, as it is proposed to change the lines of the two counties, although the district affected is to form a, part of Baltimore City, while the appellants contend that it only applies to a change of lines of a county which would transfer the district to another county, and that it does not apply when the district, under the proposed change, would form a part of Baltimore City. But we must first determine whether this Court decided that question in Daly v. Morgan , and if so, are we hound by it as a controlling authority ? The bill of complaint in -that case, in speaking of the Act of 1888, alleged that, “the Act aforesaid is null and void, because the Constitution of Maryland gives no power to the Legislature of Maryland to annex any of the territory of a county to the City of Baltimore, nor does it empower said Legislature to make the annexation of said territory depend upon the majority of the votes cast at an election provided for by legislative enactment,” etc. The answer of the Mayor and City Council of Baltimore alleged that the Act was a constitutional and valid exercise of the legislative authority of the State, and that of the Treasurer of Baltimore County averred that the Act was wholly and utterly void, etc. The argument of Colonel McIntosh and of Mr. Mitchell, solicitors for appellant in that ease, as shown by their briefs, was that section 1 of Article 13 was the only provision in the Constitution which authorized a change of the lines of a county, and that only authorized such change when the disrt-rict proposed to be changed would “form part of a county different from that to which it belonged prior to said change,” and that that was not synonomous with and in ordinary parlance did not mean .“form part of a city or Baltimore City ²⁵² different from,” etc. They argued that there was therefore no power in the Legislature to change the lines of the county to annex it to Baltimore City. They also contended that the Act of 1888 did not conform to the requirements of section 1 of Article 13, if held to be applicable, because the latter required the consent of the majority of the legal voters residing within the district, while they claimed that the Act only required a majority of the votes cast.

We find in the records of this Court that there are bound with the briefs for the appellant (Daly) opinions of Colonel Marshall, Judge Fisher and Mr. S. Teackle Wallis, presumably with the consent of the Court, which are mostly on the validity of section 19 of Act of 1888, providing for taxation. There are, however, some expressions of views on the necessity of a referendum. Judge Fisher's opinion, which was addressed to the attorney for the County Commissioners of Baltimore County, shows that one of the questions submitted to him was: “Can the limits of the city be extended by legislative enactment without submission to the voters in the territory to be annexed ?” and apparently the same question was asked Mr. Wallis. Both of them answered in the negative, but the latter said it was “extremely doubtful” whether it was competent for the Legislature to annex the territory of Baltimore County, constitutionally, to Baltimore City in any way.

The brief of the city was for the most part confined to a discussion of section 19 of the Act. It concluded by saying that there was appended to it the legal opinions gjven before the election by Messrs. Steele, Gwynn and Findlay “which furnish additional arguments to those We have presented in favor of the constitutionality of the City Extension Act, and which we respectfully commend to the consideration of the Court.” Those of Messrs. Steele and Gwynn were confined to the validity of section 19, which seems to have been understood by the city to be the principal ground of objection to the Act, but that of Mr. Findlay very.clearly and emphat ²⁵³ ieally took the position that Article 13 did not apply to the city, and that the Belt could have been annexed by a legislative act without a popular vote.

He dwelt on that at some length, and made the prediction that if annexation was voted down it would he the last time that it would he submitted to the voters, as such an Act could he passed without a referendum. We have thus referred to the briefs and opinions of prominent attorneys, filed with them by the respective parties, to .show how far the attention of the Court was directed by them to the question whether it was necessary to have a referendum. As w'e have seen, another of the grounds relied on by the appellant for the Act being invalid was that it did not comply with the requirements of section 1 of Article 13 in reference to the submission of the question of annexation. It may he that a sufficient answer to that might have been the decision in Walker v. Oswald, 68 Md. 146 , although Col.

McIntosh .sought to distinguish the two eases, but if the constitutional provision did not apply, and it was not necessary to submit tbe question to the people, there could not well have been a more complete answer to the contention and to the allegation in the hill that it w'as not submitted as required by that provision than to hold that an Act for annexation to the city could be passed with or without the consent of the people, for if that be so, and the Legislature chose to submit it, it could determine the terms, etc., of the submission, and hence it was immaterial whether the Act of 1888 complied with section 1 of Article 13. But let us see just what the Court did decide, and what the judges thought they were called upon to decide. Seven judges sat in that case. Judge Robiwsow delivered the opinion of the Court, and Judges Stowe, Milleb, Ibviwg and Mc-Sliebby concurred in it.

Judges Alvey and Beyaw concurred in the affirmance of the order appealed from, but differed in some of the conclusions reached by the majority, of which we will speak later. The Court, through Judge Robiwsow, said: “The power of the Legislature to extend the ²⁵⁴ limits of a city, by including therein parts of the county adjoining, when the city itself is a part of the county, is not and can not be questioned. It is contended, however, that Baltimore City being a separate and independent territorial division of the. State, and not a part of Baltimore County, the -Legislature has no power to change the lines of the county by annexing part of its territory td the city.

And in support of this contention, the appellant relies entirely upon section 1 of Article 13 of the Constitution.” ■The part of that section which we have quoted above was then set out in the opinion, which calls attention to the fact that “it does not say, as has been argued, that the lines of a county shall not be changed except it be for the piurpose of annexing parts of one county to' another county. It merely provides that when the lines of a county are to be changed for this purpose, it must be done with the consent of a majority of the voters residing within the district to be annexd.” The Court then uses this emphatic language, which can leave no doubt as to its construction of section l of Article 13: “The object, and sole object, of this provision of section 1 was to provide for the annexation of parts oí one county to another. The entire section in fact, and the article in which it is to be found, deals exclusively with the organization of ‘new counties/ ‘the location of county seats/ and the mode by which parts of one county may be annexed to- another county, cmd the limitation imposed upon the legislative powier is in respect of these matters and these only.” (Last italics ours.) The opinion then pointed out some of the distinctions between counties and towns and cities, and, in speaking of the latter said: “They are chartered by the Legislature, and their boundaries are fixed by it, and the power to extend them; whenever in its judgment the public interests inquire it, has been exercised by the Legislature from the earliest days of the colony.” It then concludes the discussion of that question by saying: “Eb one knew better than the framers of the Constitution of 1867, that the time must come, and that not far distant, when ²⁵⁵ the extension of the limits of a great city like Baltimore would be absolutely necessary to its proper growth and development. And if they meant to deny the exercise of this power by the Legislature, and to say that its limits, as then defined by its charter should for all time remain the same, it is but reasonable to presume that this intention would have been declared in plain and explicit terms.

So far from being expressly declared, there is nothing either in the language or terms of this section from which such an intention can be inferred. The Legislature has, therefore, in our opinion, the same power now which it has always exercised, to extend the limits of Baltimore 'City by including therein parts of Baltimore County, and this too, with or without the consent of the majority of the voters residing within the districts annexed.” The appellees make special objection to the latter expression, but that Was manifestly the necessary result of what had already been clearly and definitely settled in the opinion, as shown above. In the absence of a constitutional prohibition, there can be no doubt, under the. authorities, that it is for the Legislature to say whether or not there shall be a referendum in reference to the extension of the limits of a city or town. “Hot only may the Legislature originally fix the limits of the corporation, but it may, unless specially restrained in the constitution, subsequently annex, or authorize the annexation of, contiguous or other territory, and this without, the consent, and even against the remonstrance of the majority of the persons residing in the corporation or on the annexed territory” * * * “The power to enlarge the boundaries of a mluniepality by the annexation of contiguous territory is. an incident to the legislative power to create and abolish municipalities at pleasure.” 1 Dillon on Mun. Cor.

(5th Ed.), see. 355. See also 1 McQuillin on Mun. Cor., section 265, where many authorities are cited: Johnson v. Luers, 129 Md. 521, 530 ; In re Pittsburgh, 217 Pa. 227 , affirmed in Hunter v. Pittsburgh, 207 U. S. 161 . The Court having held that section 1 of Article 13 did not apply, and there being no other restriction in the Constitution, that conclusion would neces ²⁵⁶ sarily have meant that the Legislature could act with or without the consent of the majority of the voters, even if that expression had been omitted from the opinion, unless the Court had placed itself in conflict with the practically unanimous decisions of other courts and our own.

How then can it be said that the expression objected to was an obiter dictum, or that the question is not res adjudicates? Judge- Beyan filed an opinion in which he concurred in the conclusion reached by the five judges, but differed with them as to whether it was necessary to have the consent of the voters. He did not suggest that it was an obiter dictum, but based his opinion on what he deemed to- he the proper construction of section i of Article 13. The reason he thought that the Act of 1888 would have been unconstitutional, had it not required the consent of a majority of the local voters, was that under his construction of that section it was applicable to' Baltimore City, which, in construing the section, was to be considered and treated as a county.

That is precisely contrary to what the majority of the Court held. He did not intimate that he thought the use of the expression referred to was unwarranted or