Mealey v. Mayor of Hagerstown

Boyd, J., delivered the opinion of the Court: This appeal brings before us for review the pro forma decree of the Court below sustaining a demurrer to the amended bill of complaint, filed by the appellants against the appellees. The appellants are taxpayers of Hagerstown and seek to enjoin the defendants from contracting for the construction of an electric light plant, from the purchase or lease of any land or property for that purpose, from issuing or selling any bonds for the purpose of raising money to pay for such electric light plant, land or other equipments, and from levying or collecting any taxes for the payment of the interest or principal of any such bonds. The defendants are the Mayor and Council of Hagerstown, the Board of Street Commissioners and the Tax Collector. A contract was made in November, 1895, between the Board of Street Commissioners of Hagerstown, and Powell Evans for lighting the streets, avenues and highways of that city with electric light for the period of five years from January 1st, 1896, with a provision for renewal for another five years, which we will have occasion to consider.

The Hagerstown Railway Company, of Washington County, Md., is alleged to be the assignee of that contract and is one of the complainants. It is averred in the bill that the company has done all that was necessary to entitle it to a renewal of the contract for five years from January 1st, 1901, and that it had applied for such renewal to the Board of Street Commissioners who had ⁷⁴³ declined and refused to renew it. An Act was passed in 18g8y being chapter 381, of the laws of that year, giving the corporation power to issue bonds “for the purpose of establishing or assisting in establishing a plant in Hagerstown to be used for the purpose of generating electric power to supply light and power, or either of them to the citizens of Hagerstown,” and then chapter 75 of the Laws of 1900, was passed authorizing the corporation of Hagerstown to establish a municipal plant. The latter law is alleged by the appellants to be invalid on several grounds — the first of which we will consider is its title, which is “An Act to provide for the establishment of an electric light plant in Hagerstown, Maryland.” The provision of Art. 3, section 29, of the Constitution, that “every law enacted by the General Assembly shall embrace but one subject and that shall be described in its title,” has been before this Court as frequently as any in that instrument.

In Davis v. State, 7 Md. 151 , in which a similar provision in the Constitution of 1851 was before the Court, its object was said to be to prevent “ engrafting upon subjects of great public benefit and importance, for local or selfish purposes, foreign and often pernicious matters,” and to enable the members of the Legislature to know from the title the character of the legislation proposed. In State v. Norris, 70 Md. 91 , it was said : “ The objects designed to be obtained by the constitutional provision are two-fold. The first is to prevent the combination in one Act of several distinct and incongruous subjects, and the second is that the Legislature and the people of the State may be fairly advised of the real nature of pending legislation.” In the case first cited the title was an “An Act regulating inspections in the city of Baltimore,” and in the latter, “An Act to add a new section to Article 30, of the Code of Public General Laws, title, ‘Crimes and Punishments sub-title, ‘Rivers,’ to come in after section one hundred and seventy-one.” In each instance the title was held to be a sufficient compliance with the constitutional provision, although the subject of the Act before the Court in the last case was the prevention of dredging, taking and carrying away of sand ⁷⁴⁴ and gravel from the bed of the Potomac River and prescribing the punishment for its violation. Judge Alvey, in delivering the opinion, said : “ Many Acts are passed, and often of great importance, the titles of which are exceedingly deficient in definite and clear description of the subject-matter of the Act.

But this Court has ever been reluctant to defeat the will of the Legislature by declaring such legislation void, if by any construction it could possibly be maintained.” So in State v. Fox, 51 Md. 412 , a title which read “ An Act to add an additional Article to the Code of Public Local Laws, to be entitled Garret County,” and in Mayor, &c., of Baltimore, v. Keeley Institute, 81 Md. 106 , one reading “An Act to provide for the treatment and cure of habitual drunkards,” were sustained. In the former, amongst other things, the Act declared it to be a felony to knowingly enter upon the lands of another and cut down, without his permission, timber of certain sizes with intent to appropriate it to the use of the party so entering, and in the latter case the Act imposed the expenses of the treatment of the habitual drunkards on the city or counties, under the order of the Court. Many other instances could be furnished, from the reported cases in this State, of titles that have been upheld which are as 'indefinite and meagre as those we have already mentioned. As a rule, those which have been held to be contrary to this provision were misleading and calculated to lead the Legislature and others to believe that one kind of Legislation was proposed, while another was attempted to be enacted, which was not germane to the subject mentioned in the title.

No one could read this title without knowing that it was proposed to authorize the establishment of an electric light plant in Hagerstown. But it is argued on the part of the appellants that it does not show that it was to be established by the municipality, as the provisions of the Act contemplate. It cannot be doubted that the title could have been made more definite and less liable to be questioned by slight changes. If it had said “a municipal electric light plant” or as seems to be conceded by the appellants, if it had read “by Hagers ⁷⁴⁵ town” instead of “ in Hagerstown,” it would have been sufficient.

But there is nothing in the title to lead anyone to believe that it was to be established by some private corporation, and not by the municipality — the worst that can be said of it is that it does not say by whom it was to be established. It certainly does not suggest any attempt to create a private corporation for that purpose, or to amend the charter of one already incorporated. In the first place that is not the way that corporations are created or charters are amended, and besides there was in 1900 a general law, in force in Washington County, for the incorporation of electric light companies. Section 30, class 17 of Art. 23 provides “ For the formation of gas light or electric light companies,” and section 111 of that Article, as amended by Act of 1894, chapter 308, gives corporations formed under that Article “ full power to manufacture and sell, and furnish such quantities of electric light or electric power as may be required or desired in any city or town of Kent, Talbot, Somerset, Carroll, Montgomery or Washington Counties, of this State, in which or adjoining which the same may be located, for lighting the streets, roads, public or private buildings, or for motive power or for other purposes.” Section 3 3 of Art. 3 of the Constitution provides that “ the General Assembly shall pass no special law for any case for which provision has been made by an existing General Law,” and section 48 of same Article provides that “ corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes, and except in cases where no general law exists, providing for the creation of corporations of the same general character as the corporation proposed to be created; and any act of incorporation passed in violation of this section shall be void.” The Legislature therefore had no right to create in 1900, by special Act, a corporation in Washington County to establish an electric light plant but it did unquestionably have the authority to authorize the municipality of Hagerstown to do so.

When, then, it did have before it “An Act to provide for the establishment of an electric light plant in Hagerstown, Maryland,” ⁷⁴⁶ was it not a fair presumption that it was proposed to give the authority to the municipality ? Would any one with the knowledge of the existing law (and the members of the Legislature and others are presumed to have knowledge of it) be misled into the belief by the wording of that title that it was not the municipality that the authority was to be given to? Even if it be conceded that it was possible to give some other corporation or some individual the power to establish an electric light plant there under such a title,' would it not be notice to the legislators and the public that an Act was pending, which presumably was intended to confer upon the municipality the right to establish an electric light plant, and to call upon them to inquire into it if they thought proper to do so ? If it be a sufficient compliance with this requirement that an Act be entitled “ An Act to amend Article 95 of the Code of Public General Laws, by adding an additional section thereto,” as was decided in Second German American Building Association v. Newman, 50 Md. 62 , or “ An Act to add an additional section to Article 93 of the Code of Public General Laws of Maryland, to come in after section 326, and to be known as section 326A,” as was determined in Garrison v. Hill, 81 Md. 551 , why should this Act be declared invalid, on the ground that its title does not show who was to establish the plant ?

No one from reading those titles could have known what amendments to those articles were proposed, but they did know that some amendments were contemplated, and those interested in ascertaining what they were were called upon to examine the Acts. No tax-payer in the City of Baltimore or in the counties was informed by the title of ‘ ‘ An Act to provide for the treatment and cure of habitual drunkards,” that it was proposed to treat them at the expense of the public, but the title was held sufficient. The Courts are not authorized to declare legislation invalid merely because the title has not disclosed how an Act is to be carried out. Nor is it necessary to state the details of the Act.

All that can reasonably be expected or required is that the title shall give such notice of the legislation as would ⁷⁴⁷ attract the attention of the ordinary reader, and not be misleading as to the object of the statute. This Act provided for its submission to the qualified voters of Hagerstown before it was to take effect. It was passed at a time, as we have seen, when the Legislature had no power to incorporate a private corporation for such purposes, the title did not use language that could properly cause any one to conclude that the plant was to be established by private enterprise, and not by the municipality, and the presumption was, under the circumstances, that the establishment of a plant of this character “ in Hagerstown” was to be by Hagerstown. It was said at the argument that municipal ownership of lighting plants was unusual in this State.

There is nothing in the record on that subject, but we know that, at the time this law was passed, in Cumberland and Frederick, the county seats of counties adjoining Washington, they were owned by the municipalities, and therefore we cannot assume that any one was or could have been misled for that reason. We are of the opinion that the Act was not invalid by reason of the title and without discussing the various sections of the Act we do not find anything in them that is not germane to the subject-matter. We will next consider the effect of the provision of the Act which prohibits lighting at municipal expense of the streets, etc., after this plant is put in operation and completed. In doing that we are called upon to construe the contract made by the Board of Street Commissioners of Hagerstown with Powell Evans, on November nth, 1895, as the appellants contend this Act impairs the obligation of that contract and is void for' that reason, as the Legislature would not have authorized the municipality to build its own plant and prohibit the payment for municipal lighting to any other party, if it had known of this contract, and therefore this whole Act must fall.

It provides that the party of the second part, who was Evans “ shall have the contract for lighting the streets, avenues and highways of Hagerstown, with the Schuyler or any other equally as good system, for a period of five years ⁷⁴⁸ after this contract is in force, beginning on or before January ist, 1896.” Then after some provisions which do not affect this controversy, there follows thq clause which is specially involved in this case and which is as follows : “ and said party of the second part shall have the like contract for a further period of five years, or ten years in all, provided, before the termination of the five years said party of the second part or his assigns shall have developed, or caused to be developed, one of the sites known as Dam Nos. 4 or 5 on the Potomac River or any other site on the Potomac River, or any other sort of central station of like capacity to the one on the Potomac River, to supply electric power for operating machinery in Hagerstown, in accordance with the provisions of the ordinance granted Powell Evans