Weller v. Mueller

Urner, J., delivered the opinion of the Court. By Oh. 141 of the Acts of 1908 (p. 242), which created the State Roads Commission and authorized a $5,000,000.00 road loan, the Commission was given the power and charged ⁶³⁵ ■with the duty “to select, construct, improve and maintain such a general system of improved State roads and highways as can reasonably be expected to be completed with the funds” provided by the Act “in and through all the counties of this State.” There was a provision that the amount available for actual construction work should be appropriated and used in the several counties in proportion to their existing road mileage. The original loan proving insufficient the Act of 1912, Chapter 376, was passed authorizing an additional loan of $3,170,000.00 “in order to complete the construction of the State public roads as provided” in the Act of 1908. It is enacted that the proceeds of the second loan shall be used for the purposes set forth in the earlier statute, and that the Commission shall “appropriate and use in the several counties of the State of Maryland $2,000,000.00, of which three hundred thousand ($300,000) dollars shall be apportioned and used promptly in Baltimore county, one hundred and fifty thousand ($150,000) dollars of which shall be promptly expended-on the Baltimore and Yorktown Turnpike road, beginning at the City limits and extending as far north on said turnpike as said one hundred and fifty thousand ($150,000) dollars will properly build said road, and in the City of Baltimore six hundred and twenty-five thousand ($625,000) dollars, of the funds arising from the bond issue herein provided in the same proportion as provided for the expenditure of a State Roads Loan created by Chapter 141 of the Acts of 1908, it being the intention of this Act to provide for the additional sum of $2,625,000.00 to be used in the furtherance of the purposes for which the State Roads Commission was created, and in the same manner as the State Roads Loan of five million dollars ($5,000,-000) created by Chapter of said Act.” The remaining $545,-000.00 of the new fund was appropriated for the purposes which need not be stated.

It is with the appropriation in the Act of 1912 of the fund for use in Baltimore county that this proceeding is concerned. The plaintiffs are residents and taxpayers of that ⁶³⁶ county and they sue not only for themselves hut on hehalf of all others similarly interested. The hill was filed in the Circuit Court for Baltimore county and the defendants are the State Eoads Commission, one of whose members resides in that jurisdiction. It is charged in the bill that the defendants are about to divert and spend in the construction of roads in other counties approximately $100,000.00 of the amount directed hy the Act of 1912 to he appropriated and used in Baltimore county, the Commission claiming that the latter county had received about $100,000.00 more than its share of the $5,000,000.00 road loan authorized hy the Act of 1908.

The bill states that the plaintiffs have no knowledge as to whether or not this claim of the defendants is correct, but it is averred that even if it be true that more than the amount allotted to Baltimore county out of the former loan was expended in that county hy the defendants, they were acting within their powers in so doing; under the terms of the Act of 1908, and that in any event the proposed diversion from Baltimore county or approximately $100,-000.00 of the $30.0,000 apportionment, for any purpose whatever, is wholly illegal and will result in irreparable injury to the plaintiffs and other taxpayers of that county. The relief prayed for is that an injunction be issued restraining the Commission “from expending any portion of the $300,000.00 provided for Baltimore county in the Act of 1912 anywhere except in Baltimore county” and “from appropriating or expending any portion of said $300,000.00 for the purpose of paying for any work heretofore done by the defendants as Eoads Commission in Baltimore county or elsewhere or for any other purpose than road building in Baltimore county.” The defendants questioned by demurrer the jurisdiction of the Court and the sufficiency of the hill. The jurisdictional objection was based in part upon the ground that the State Eoads Commission is an agency of the State and a quasi corporation, with its principal office established in Baltimore city, and that it does not carry on any regular ⁶³⁷ business or exercise its franchises in Baltimore county where the suit was instituted.' It is contended that the residence of one of the members of the Commission in Baltimore county, and the fact that the fund in controversy was appropriated for road construction there, cannot bring the case within the judical cognizance of the Circuit Court for that county. The theory of the defendants is that they can be sued as a State Commission only at the seat of the State Government, or in Baltimore City where its principal office is located.

It is further objected that the plaintiffs have no such interest in the subject-matter of the litigation as entitles them to maintain the suit. Upon the question as to the sufficiency of the bill it is urged that the Act of 1912, when construed in the light of the previous legislation to which it refers, fully justifies the action of which the bill complains. These objections were not sustained by the Court below, and from its order overruling the demurrer the defendants have appealed. By the Act of 1910, Ch. 217 (p. 311), which transferred to the State Roads Commission the powers and duties formerly reposed in the State Geological and Economic Survey, including the co-operation with the counties in road improvements undertaken by them on their own initiative or at the instance of abutting land owners, it was provided that “the Circuit Court of any county where the powers conferred upon the State Roads Commission or its predecessor have been or are about to be exercised shall have original jurisdiction of any cause of action or complaint which may be brought by the State Roads Commission, the County Commissioners for such county, or any person or corporation aggrieved, for violation or contemplated violation of any of the provisions of this sub-title or contract thereunder with respect to any road or roads within such county; and process against said State Roads Commission may be served upon any member or officer of said Commission.’ This provision is now a part of section 78 of Article 91 of the Annotated Code of 1912, but was originally enacted as an amend ⁶³⁸ ment to section 45 of the same Article of the Code of 1904.

While this section deals particularly with a different class of road improvements from those to which the fund here in dispute is applicable, it nevertheless refers in terms to suits for the violation of any of the provisions of the sub-title under which it is codified with respect to any road or roads within the county. At the time of the amendment and reenactment of this section in 1910, the other statutory provisions defining the powers and duties of the defendants in relation to the construction of a general system of State highways had been incorporated in the same Article of the Code under the same sub-title by Chapter 141 of the Acts of 1908. The term “sub-title” as used in the provision quoted may be given its ordinary application consistently with the purpose and effect of the road law as a whole, and we find no occasion, therefore, to restrict or qualify its meaning. It is clear that the present suit relates to an alleged violation of the provisions of the sub-title in question in respect to the use of State funds upon roads in Baltimore county, and under the express terms of the statute the Circuit Court for that county is given jurisdiction to entertain the proceeding.

There can be no difficulty in recognizing the right of the plaintiffs as taxpayers of Baltimore county to maintain the suit. The principle is settled in this State that while individuals cannot sue to restrain alleged public wrongs rrnless they have a special interest requiring protection, yet if the unauthorized act complained of would result in an increase of taxation, those upon whom this burden would fall constitute a special class, with an interest distinct from that of the general public and are entitled to seek relief by injunction. Painter v. County Commissioners of Baltimore County, 119 Md. 466 ; Schley v. Lee, 106 Md. 403 ; Baltimore v. Keyser, 72 Md. 108 ; Baltimore v. Gill, 31 Md. 395 ; Kelly v. Baltimore, 53 Md. 140 . In the case before us it is charged that about $100,000.00 of the funds appropriated b'y law for the construction and maintenance of roads in ⁶³⁹ Baltimore county is being illegally diverted by tbe defendants to similar uses in other counties.

Tbe interest of Baltimore county taxpayers in such a subject-matter is obvious. If this large fund is applied upon tbe roads of tbe county, tbe charge upon tbe county treasury for road maintenance will be reduced to tbe extent of tbe mileage thus improved. There is consequently an appreciable relation between tbe alleged diversion of tbe fund and tbe taxation to which tbe plaintiffs are subject on account of tbe ordinary road