Welch v. Coglan

Stockbridoe, J., delivered the opinion of the Court. By Chapter 810 of the Acts of 1914 of the General Assembly of Maryland, there were conferred upon the State Board of Health additional, and in some respects, unusual powers. The Act was one “for the better preservation of the public health by-preserving the purity of the waters of the State; providing for the supervision and control by the State Board of Health over water and ice supplies, sewerage, trades' waste and refuse disposal; and for the . maintenance, alteration, extension, construction and operation of systems and works relating thereto; providing for the raising of funds by counties, municipalities and sanitary districts for the maintenance, alteration, extension and construction of the same.” The Act then proceeds with considerable detail to make provision' as to the method by which the declared purposes shall be carried out. The two sections with which the pres ⁴ ent case is especially concerned are sections 7 and 9, which are as follows: “Sec. 7.

And be it further enacted, That when the State Board of Health finds, upon investigation, that any of the waters of the State are being, or are liable to become, polluted in a way dangerous to health, or so as to be in any way a nuisance, and such condition is due to the fact that there is no, or only a partial, system of public water supply, sewerage or refuse disposal in a certain county, municipality, district, sub-division or locality; or in case absence or incompleteness of a public system of water supply, sewerage or refuse disposal in any county, municipality, district, sub-division' or locality is, in the opinion of the State Board of Health, sufficiently prejudicial to the health or comfort of that or any other county, municipality, district, sub-division or locality; then the State Board of Health may issue an order to the effect that a public system of water supply, sewerage or refuse disposal shall be installed, and put into operation, or the existing system completed, in that county, municipality, district, sub-division or locality, within a sjiecified time; or the Board may order the installation of such devices or the institution of such methods, and enforce such measures or regulations, as it may deem proper under the circumstances.” “Sec. 9. And be it further enacted, That the State or any county, legally constituted public water, sewerage or sanitary district, or any municipality, upon which-an order of a State Board of Health is served, shall, through its proper official or department, proceed to raise such funds as may be necessary to comply with such order within the time specified. When approved by the Governor and Attorney-General, any coirnty, legally constituted public water, sewerage or sanitary district, or municipality may raise such funds, or any part of them, by issuing bonds, stocks or notes without prior legislative enactment; and the question of issuance of such bonds, stocks or notes shall not be required ⁵ to be submitted to a vote of the people. The money-made available by bonds, stocks or notes so issued shall constitute a sanitary fund, and shall be used for no other purpose than for carrying out the order or orders of the State Board of Health.

At no time shall the total outstanding issue of such bonds, stocks or notes exceed two per cent, of the total value of all property within the limits of such county, district or municipality, as listed and assessed for taxation. The amount of bond, stock or note issue as allowed by this section may be in addition to the total indebtedness otherwise permitted by law. No public moneys shall be expended by the State, any county, legally constituted public water, sewerage or sanitary district for any of the purposes enumerated within this Act, unless such expenditure and the amount thereof has been approved by the State Board of Health.” Acting under the authority conferred or attempted to be conferred by section 1, the State Board of Health, through its secretary, on October 23, 1914, issued the following order ; . “October 23, 1914. “To the County Commissioners of Baltimore County. Greeting: “It is this 23rd day of October, 1914, ordered by the State Board of Health of Maryland, by virtue of the power conferred upon it by the General Assembly of Maryland, that you install and put into operation, a sewerage system in Baltimore Co., within the Tiffany B,un Drainage Area, Govans, and described on plat entitled ‘Govans and Yicinity—Tiffany Run Drainage Area—District required to be seAvered under order of State Board of Health to Baltimore Co. Commissioners, dated October 23, 1914/ Avhich plat is hereto attached and made a part hereof. “The absence of a sewerage system sufficient to take care of the sewage of said district, as it now exists, is a menace to the health of the people. ⁶ “It is further ordered by the State Board of Health of Maryland, that you install this sewerage system, and put it into operation, not later than January 1st, 1916. “Witness the hand of the Secretary and Executive Officer of the State Board of Health of Maryland, and the affixing of its seal the day and year first' above written.” Section 18 of the Act gives the right to any county, municipality, legally constituted water, sewerage or sanitary district, corporation, company, institution or person dissatisfied with any order of the State Board of Health to institute an action within ten days, to vacate and set aside such order of the State Board upon the ground, either that such order is unlawful or unreasonable, or unnecessary for the protection of the public health or comfort.

In the exercise of the right given by this section, the County Commissioners of Baltimore County upon the service of the order recited, instituted the present proceedings to vacate and set aside the order of the State Board of Health, upon the ground that the same was unlawful, and beyond the powers of the board. The petition does not allege that the order is not necessary for the protection of the public health or comfort, and ask that the order be vacated for any such reason. The sole question, therefore, is the constitutionality or validity of the Act. The petitioners do not claim in their argument or brief, that the Act is invalid in its entirety, but only that sections 1 and 9 transcend the power of the Legislature under the constitutional limitations resting upon that branch of the government.

The point thus raised is a narrow one, and yet of great importance to the citizens of every county in this State. That will be appreciated when it is borne in mind that the effect of this legislation, if valid, is to place in a board of seven men, not elected by or accountable to the people, the power to compel the several counties of this State to incur an indebtedness for which the several counties are required to issue the bonds of the counties to an aggregate amount for the ⁷ entire State of more than $9,500,000, ranging from $60,64-5 in Calvert County, to $3,021,756 in Baltimore County. This is a power which may be exercised, if the Act is valid, without the consent of the people upon whom the burden is to be cast, and without their even having had the opportunity to give an expression to their views or desires in the matter. It is but just, therefore, that when the Legislature attempts to confer so comprehensive a power, oUe which may affect seriously every owner of any property in any part of the State, it should receive most serious and careful consideration. ' The Circuit Court for Baltimore County held the Act invalid, and the case has been presented in this Court with marked ability and zeal upon both sides, and the fullest possible consideration has been devoted to it, because in addition to the strictly legal questions involved, it is but another and more pronounced step in the direction of establishing government by boards or commissions.

The basis for all legislation of this character is to be found in the police power of the State. While no precise boundaries have ever been set as to what may and what may not be properly classed as an exercise of police power, the protection and preservation of the public health has universally been recognized as one of the primary fields for its exercise, and it needs no citation of authorities for the proposition that in a city or thickly populated community nothing is more vital to the preservation and protection of the public health than the establishment of proper and suitable drainage and sewerage. In Boehm v. Baltimore, 61 Md. 263 , Judge Miller,, speaking for this Court, said: “The preservation of the health and safety of the inhabitants is one of the chief purposes of local government.” The same doctrine was even more explicitly stated by the late Judge McSherry, in the ease of State v. Hyman, 98 Md. 613 , as follows: “One of the legitimate and most important functions of civil government is acknowledged to be that of providing for ⁸ the welfare of the people by making and enforcing laws to promote and preserve the public health,.the public morals and the public safety. Civil society can not exist without such laws, and they are therefore justified by necessity and sanctioned by the right of self preservation.

The power to enact and enforce them is lodged by the people with the government of the State, qualified only by such conditions as to the manner of its exercise as are necessary to secure the individual citizen from unjust and arbitrary interference.” And to the same effect was the decision in Deems v. Baltimore, 80 Md. 173 ; Sprigg v. Garrett Park, 89 Md. 409 , and State v. Broadbelt, 89 Md. 565 . In one sense of the term the construction of a drainage or sewerage system is a work of internal improvement, but the cases in this State are conclusive that it is not such a work of internal improvement as was contemplated and included in the prohibition contained in section 54 of Article 3 of the Constitution. Bonsal v. Yellott, et al., 100 Md. 481 . In that case the Court was asked to enjoin the County Commissioners of Baltimore County from expending certain funds under their control on the construction of State roads, under the provisions of the Act of 1904, Chapter 225.

In deciding that case Judgjs Boyd, speaking for this Court, discusses the limitations imposed in Article 3 of the Constitution, sections 34 and 54, and holds them inapplicable with regard to such matters as roads or bridges, but roads and bridges are no more public works than is the construction of a proper sewer system, and it may be fairly questioned whether an Act with regard to roads and bridges can properly be said to be germane to the police powers of the State. One of the grounds of attack upon this Act was its alleged violation of the Constitution, with regard to the debt incurring power of Baltimore City. This objection need not be considered, as the order of the Board of Health which has given rise to the present case in no way affects Baltimore City; moreover, the limitation upon the incurring of an indebtedness by the City is different from that in the case ⁹ of a county, and it may be that an Act may be constitutional in part and unconstitutional in part, without entirely destroying the Act, and this may result from distinct and different constitutional provisions with regard to one part of the State from those which obtain in another, as well as from embodying in one and the same section different provisions, for it has been held that a statute may he valid in part and void in part, even when the two parts are contained in the same section, provided that the valid part is independent of and severable from that which is void. Field v. Malster, 88 Md. 691 ; Steenken v. State, 88 Md. 708 .

TJpon the question whether Baltimore City is subject in all respects to the provisions of the Act in question, no opinion is now expressed. A further objection might have been raised by reason of the fact that by the terms of the Act, the State itself is made subject to the control of the board; that is, that the creature is superior to the creator; but here again we are not called upon to express any opinion by reason of any of the allegations in this case. The Circuit Court of Baltimore County was, therefore, clearly correct when it stated in its opinion, that the proposed sewerage system, although a work of internal improvement, did not fall within the class of such works prohibited to the counties, unless authorized in the method laid down in section 5I of Article 3 of the Constitution. It was also correct when it stated that it has been a frequent practice in the passage of Acts of Assembly to provide for bond issues as a source from which to derive the funds required for works of a public character without a submission of them to the