Volume 126 — Maryland Reports

<p>Police power-, public health, drainage and sewerage work. State Health Commissioner: power of, under Chapter 810 of Acts of 1914. Legislation: wisdom of—,• not for the courts to review. Taxation: legislative function; delegation of power. Statutes: constitutional in part.</p> <p>No precise boundaries are set to the police power, but the protection and preservation of the public health is one of the primary fields for its exercise. p. 7</p> <p>In a thickly populated community, nothing is more vital to the protection of public health than the establishment of proper and suitable drainage and sewerage.' p. 7</p> <p>A drainage and sewerage system, while a work of internal improvement, is not such a kind as was contemplated and included in the prohibition contained in section 54 of Article 3 of the Constitution. ■ p. 8</p> <p>An Act may be constitutional in part, and unconstitutional in part, without entirely destroying the Act. p. 9</p> <p>The question of whether an Act would be constitutional in Baltimore City need not be discussed, where it is a question only of its constitutionality in one of the counties. p. 9</p> <p>In general, the power to tax is exclusively a legislative function, to be exercised only by that department of government, and can be delegated only to municipal corporations. p. 12</p> <p>While under Chapter 810 of the Acts of 1914, the order of the State Board of Health to the County Commissioners of a county, to provide a system of sewerage, etc., is mandatory upon them, it is not mandatory as to how the improvement shall be paid for; the question of how the improvement shall be made, and what system of taxation shall be provided therefor, is left to the County Commissioners, and such an order therefor is not a usurpation of any legislative function, p. 13</p> <p>The wisdom of such legislation is for the Legislature, and not for the courts. p. 13</p> <p>Chapter 810 of the Acts of 1914, conferring upon the State Board of Health the power and authority to order the installation of water supply systems, and systems of drainage and sewerage in any county, municipality or district, subject to the conditions and limitations contained in the Act, is constitutional.</p> <p>pp. 14-15</p> <p>The reasonableness of the Board of Health's exercise of the powers conferred upon it by the Act is always open to review by the courts. p. 14</p> <p>Where an order of the State Board of Health directing the County Commissioners of Baltimore County to install a sewerage system, etc., was set aside by the Circuit Court, on the ground of the unconstitutionality of the Act conferring such power upon the Board of Health, on appeal to the Court of Appeals, it was held, that the Act itself was constitutional, but as neither the record nor the trial below brought up the question of the reasonableness of-the order of the Health Board, the case was remanded for further proceedings, without affirming or reversing the order of the Circuit Court. p. 15</p>

Nine appeals from the Circuit Court of Baltimore City (Ambler, J.), and eight appeals from Circuit Court No. 2 of Baltimore City (Ambler, J.). The facts are stated in the opinion of the Court.

<p>Appeal from the Circuit Court for Anne Arundel County. (Brashears, J.)</p>

(Soper, C. J.) The facts are stated in the opinion of the Court.

<p> Public Service Commission: powers statutory; power to regulate railroad tariff charges and commutation rates; State and public utility corporations; State’s rights over—■not those of owner; limits to public demands. Common carriers: compensation; confiscatory rates.. Appeals to courts. </p> <p>The Public Service Commission has no authority to make any order, except so far as the authority is distinctly conferred upon it by the Legislature. . p. 65</p> <p>The Act creating the Public Service Commission—codified as section 413, etc., of Article 23—taken in connection with the Amendatory Act—Chapter 162 of the Acts of 1912—so far as the Legislature has the power to grant it, confers upon that body the full power of. supervising and regulating all tariff and transportation charges within the State, including commutation rates. p. 65</p> <p>The State has broad powers of regulation over public utility-corporations, but it does not enjoy the freedom of an owner. 'The fact that the property is devoted to a public use, on ■certain terms, does not justify the requirement that it should be devoted to other public purposes, or to the same use, on ■other terms; nor does it justify the imposition of restrictions that are not reasonably concerned with the proper conduct of the business according to the undertaking which the carrier had ■expressly or by implication assumed. p. 68</p> <p>Carriers for hire can not be required to carry passengers or goods gratuitously. p. 68</p> <p>The public interest can not be invoked as justification for demands which pass the limits of reasonable protection, and seek to impose upon carriers and their property burdens not incident to their engagements. p. IS</p> <p>"Whether commutation rates of a railroad shall be established at all, is a question of policy upon the part of the company; but if such a policy is adopted there still remains the question of the reasonableness of the manner in which the policy is carried out. p. 63</p> <p>Common carriers may not be required to perform services at rates less than the actual cost of such services and that would compensate, for that would ultimately defeat the very end they were designed to accomplish—namely, to subserve the public ■good and convenience. pp. 74-75</p> <p>In such cases, the point of injustice is reached long before the actual confiscation, and to make the word “confiscatory” appropriate it must be made to read, not in the sense of actual ■confiscation but as tending in that direction. p. 76</p> <p>Upon application to courts to restrain the execution of an order of the Public, Service Commission, the courts have no authority to determine what would be a reasonable rate for the service in question. They must determine merely whether the rates fixed by the commission are unreasonable and unlawful, and until it is made to appear by clear and satisfactory evidence that the action of the commission was unreasonable and unlawful, the courts are without power to impose any restrictions upon the execution of the commission’s order. p. 78-</p> <p>There was an appeal to the Circuit Court from the order of the Public Service Commission establishing commutation rates,, etc., and praying for an injunction to restrain putting the order into effect; an appeal was taken to the Court of Appeals from the order of Court refusing the injunction; and, on affirming the order and remanding the case, the Court of Appeals held that, although the order of the commission fixing the rates-declared that they should remain in force for ten years, there-should be reserved the right to the railroad company to apply to the commission, after the lapse of a reasonable time, for a rescission or modification of its order, if experience should demonstrate that the revenue derived under the tariff as established by the commission was. not properly compensatory for the services performed. p. 82'</p>

<p>Appeal from the Circuit Court for Caroline County. In Equity. (Hopper and Adkins, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Two appeals in one record from the Circuit Court of Baltimore City. (Dawkins, J.)</p>

<p>Appeal from the Criminal Court of Baltimore City. (Heuisler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Board of Police Commissioners: yearly estimates not subject to review by Board of Estimates; duty of city; right of Police Board to issue certificates. Statutes: construction. Mandamus: discretionary; not to be granted when nugatory. </p> <p>The repeal of statutes by implication is not favored. It is only when they are repugnant and plainly inconsistent that a repeal by implication is presumed. p. 120</p> <p>Section 31 and section 36 of the Charter of Baltimore City (see Chapter 123 of the Acts of 1898), requiring the estimates therein referred to to be submitted to the revision of the Board of Estimates, do not apply to the estimates to be made each year by the Board of Police Commissioners of the amount necessary to enable them to discharge the duties imposed upon them for the ensuing year. p. 124</p> <p>The estimates of the amount necessary to enable the Police Commissioners to discharge the duties imposed upon them for the ensuing year, when made by that board, and, under the Charter (section 747), certified to the Mayor and City Council, should, through the Board of Estimates, he included within the estimates for annual appropriations, and inserted in the Ordinance of Estimates without revision or reduction, as a sum “required by law” to be appropriated for such purpose, to be thereafter passed by the Mayor and City Council without reduction. p. 124</p> <p>To compel the passage of such an ordinance, a writ of mandamus is not necessary, as by section 15 of Chapter 7 of the Acts of 1860, as amended by section 747 of the City Charter, and the authority thereby given and the provisions made, if the requisitions of the Board of Police Commissioners, upon the Mayor and City Council, or the disbursing officer of the corporation, are not honored to the amount of their estimate so'certified, the Board of Police Commissioners are authorized and required to issue certificates of .indebtedness, in the name of the Mayor and City Council of Baltimore, for the amounts so required. p. 125</p> <p>The granting, or the withholding, of the writ of mandamus rests in the discretion of the Court; it is never granted where it is unnecessary, where it would work injustice, “'or where it would be unavailing or nugatory,” or where it would introduce great confusion or disorder into a municipal administration.</p> <p>pp.‘124-12 5</p>

<p>Appeal from the Court of Common Pleas of Baltimore City. (Dobler,-J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Baltimore City Court. (Soper, C. J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court of Baltimore City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Cloud upon title: equitable relief. </p> <p>A court of equity will not allow a title, otherwise clear, to be clouded by a claim which can not be enforced either at law ■or in equity. pp. 154-155</p> <p>If the plaintiff has the legal title and is in possession, a court of equity has jurisdiction to grant relief. p. 154</p> <p>If a party has the legal title, and is in possession of the property, he can not resort to an action at law for damages caused by a cloud cast upon his title, because he has not been dispossessed. p. 154</p> <p>Anything is a cloud in the title to land which is calculated to cast doubt or suspicion upon it, or seriously to embarrass the owner in maintaining his right or of disposing of the property. p. 155</p> <p>If a grantee places upon record a deed which includes, and purports to convey, land to which he is not entitled, and to which his grantor had and claimed no title, it constitutes a cloud upon the title of the true owner of such land, against which equity will give relief. p. 156</p>

<p>State Senators: not eligible to any office created during his term; section 17 of Article 3 of the Constitution; general counsel to State Tax Commission; not a public officer. Tax Commission: no right to appoint more than one general counsel. Statutes: interpretation.</p> <p>The State Tax Commission, under Chapter 841 of the Acts of 1914, may (but it is not required to) appoint a general counsel; the salary and tenure of employment are not fixed, no oath of office is required, no official bond is given, no commission issued, and the incumbent exercises no part of the State’s sovereign power, but only such power as is derived from and through the State Tax Commission; and the general counsel of the commission is merely its employee or agent, and is not a public officer within the prohibition of section 17 of Article 3 of the Constitution. pp. 163-164</p> <p>Chapter 841 of the Acts of 1914, in authorizing the State Tax Commission to appoint an attorney-at-law to be and act as its general counsel, gives it no power to appoint two attorneys to such post. pp. 166-167</p> <p>Statutes should be interpreted according to the most natural and obvious import of their language, without resorting to subtle or forced construction, for the purpose of either limiting or extending their operation. p. 166</p> <p>Only when the meaning of a statute is doubtful are courts authorized to indulge in conjecture ¿s to the intention of the Legislature, or to look to consequences, in the construction of the law. p. 166</p> <p>When the meaning of an Act is plain, the Act- must be carried into effect according to its language, or the courts would be assuming legislative authority. p. 166</p> <p>The words of an Act are first to be resorted to, and if these are plain, in their import, they are to be followed. p. 166</p>

<p>Appeal from the Circuit Court for Howard County. (Thomas, C. J., Forsythe, Jr., J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court of Baltimore City. (Dawkins, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court of Baltimore City. (Dawkins, J.)</p> <p>The facts are stated in the opinion of the Court. •</p>

(Harlan, J.) The facts are stated in the opinion of the Court.

<p>Two appeals in one record from the Circuit Court of Baltimore City. (Dawkins, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Prince George’s County. (Beall, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Charles County. (Beall and Camalier., JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

Two appeals in one record from the Orphans’ Court for Allegany County. The facts are stated in the opinion of the Court.

(Bond, J.) The plaintiff, seeing a delivery truck of the defendant corporation, unattended, moving down grade at three or four miles an hour, in a direction where he deemed it apt to imperil human lives; attempted to get on the truck and guide it to safety; in so doing he was injured by being crushed between the truck and a trolley pole; in an action for damages against the company, he recovered a verdict and judgment for $500. Erom such judgment the defendant appealed.

<p>Appeal from the Criminal Court of Baltimore City. (Enxiott, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Charles County. (Beall and Gamalieb, JJ.)</p> <p>The fácts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Queen Anne’s County. (In Equity.) (Hopper, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Sureties: liability strictly construedj corporate sureties; intention of parties. Road law: contractors’ bonds.</p> <p>The doctrine that a surety is a favorite of the law, and that a claim against him is strictissimi juris, does not apply where the bond or undertaking is executed upon a consideration by a corporation organized to'Undertake such bonds for profit, p. 293</p> <p>But such principle is not to be extended so as to reverse the rule, that the liability of a surety upon his bond is dependent upon his covenants and agreements. pp. 293-294</p> <p>Recovery can not be had against the surety of a road contractor’s bond, given under Chapter 141 of the Acts of 1908, for money loaned upon promissory notes, where there is no proof or allegation that the money was loaned only for paying for labor or materials, when, under the terms of the Act, the bond was conditioned upon the payment of all just debts for labor or materials incurred by the bidder (the contractor) in the construction and improvement of the road contracted for. p. 294</p>

<p>Appeal from the Circuit Court for Washington County. (Needy, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Baltimore City Court. (Soper, C. J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Prince George’s County. (Beall and Camalibr, J"J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Baltimore County. (McLane, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Dorchester County. (Jones and Stanford, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Board of Estimates of Baltimore City: may not repeal ordinances. Commissioner of Street Cleaning: removal of ashes from apartment houses. Diuelling house: ivhat is—. City Charter: effect of—. Municipal ordinance.</p> <p>By the ordinances of the Mayor and City Council of Baltimore (Baltimore City Code, 1893, Art. 48, sees. 187-8), the duty placed upon the Commissioner of Street Cleaning, to remove offal, coal and other ashes, and to collect and remove garbage, street and household refuse from dwellings and other places in the City of Baltimore, is mandatory in character. p. 343</p> <p>Although by Chapter 123 of the Acts of 1898, large powers of control over the finances of the City of Baltimore were vested in the Board of Estimates, yet it does not enable that body, directly or indirectly, to repeal or nullify antecedent ordinances of the Mayor and City Council. p. 345</p> <p>The adoption of the Charter of Baltimore City by Chapter 123 of the Acts of 1898 had no reference to validating invalid ordinances. It was merely intended to preserve the municipal statutes as to all laws and ordinances that might be in force at the date of the adoption of the charter, and to continue them in force in the passing of the corporation from the control of the old charter to that of the new, with the same effect, and no more, as if the change in the charter had not been made. p. 345</p> <p>While the municipality of Baltimore may itself, by ordinance, amend or repeal any ordinance theretofore adopted, it is not within the power of any board, department or commission of the municipal government so to amend or repeal, p. 346</p> <p>The Mayor and City Council, in the exercise of the police power, have the power to regulate the removal of ashes, p. 346</p> <p>It is not competent for the Board of Estimates, by an arbitrary definition or classification of what is a “dwelling,” so' as to exclude certain apartment houses, to limit the right and duty of the commissioner to remove the ashes from apartment houses; as the duty is imposed upon him by the terms of the Baltimore City Code, Article 48, sections 187-188. p. 347</p> <p>An ordinance of a municipal corporation duly passed in the exercise of a power delegated to the municipality amounts to a local law, and is just as binding and obligatory as if it had been adopted by the legislature itself, and it may even prevail over a general law upon the same subject. p. 346</p> <p>In classifying buildings, the usual line of demarcation for “dwellings” has been the use to which the building is devoted as a habitation for man. . p. 347</p>

<p>Appeal from the Criminal Court of Baltimore. (Elliott, J.)</p>

<p>Appeal from tbe Baltimore City Court. (Gorter, J.)</p> <p>Tbe facts are stated in the opinion of tbe Court.</p>

<p>Appeal from the Circuit Court for Somerset County. (In Equity.) (Stanford, J.)</p> <p>The facts are stated in the opinion of the Court,</p>

<p>Appeal from the Superior Court of Baltimore City. (Soper, C. J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Orphans’ Court of Baltimore City.</p> <p>The facts are fully stated in the opinion of the Court.</p>

(Gorter, J.) The facts are stated in the opinion of the Court.

(Stump, J.) The facts are stated in the opinion of the Court.

<p>Appeal from the Circuit Court for Harford County. (HakLAN, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Anne Arundel County. (In Equity.) (Brashears, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Superior Court of Baltimore City. (Bond, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>■ Appeal from Circuit Court No. 2 of Baltimore City. (Heuisuer, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Caroline County. (Adkins and Hopper, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Washington County-(Needy, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City. (Durey, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Montgomery County. (Peter and Worthington, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Vendor and vendee: false and fraudulent representations by vendeej fraud and deceit; equitable relief. Equity: pleading; amendment of prayers. </p> <p>Where the demurrer to a bill has' the effect of admitting that the plaintiff’s land could best be utilized for dwelling houses,, and that she desired and intended to dispose of it for such purpose, exclusively, but that by means of the falsehood and deception of the agent of the purchaser, in reference to the observance of this settled plan of development, the defendant corporation had obtained part of the land and was proposing to devote it to operations which would inevitably and seriously impair the value and availability of the remaining ground for its contemplated use, equity has the power to redress the wrong.</p> <p>p. 509</p> <p>Where such representations are material to the transaction, and are false and deceptive, and have induced the grantor tO’ make a conveyance resulting in his injury, a sufficient case is presented for equitable rescission on the ground of fraud and deceit. p. 510‘</p> <p>In a bill making such allegations, the substitution of a prayer for the annulment of the deed, in lieu of the original prayer to enjoin the use of the lot, in the way complained of, does not amount to the making of an entirely new case. p. 511</p>

<p> Water companies: regulation of price; power of Public Service Commission; water plant owned by an individual. Police poiver. </p> <p>Under the Public Service Commission law (Code, Article 23, section 413), a person who, by contract, undertakes to supply from a water plant erected by himself, at least one hundred houses with drinking water sufficient for the' needs of the people, it constitutes a distinctly public service. p. 517</p> <p>And where there is a merger of several such plants into one corporation, although the separate entity of each is not preserved, the aggregate forms one entire public service corporation, amenable to legal regulations. p. 517</p> <p>The right to regulate rates for which water companies or individuals furnish water to the public is one that is within the police powers of the State, and one which may validly be committed by the Legislature to a board oí commission, p. 517</p> <p>Contracts when entered into, even between individuals, are subject to the police powers of the State, whenever such contracts relate to matters which are or may be subject to the exercise of such powers. ., . , p. 518</p>

<p> Surety companies: reinsurance agreements; accounting upon dissolution. Pleading in Equity: facts subsequent to bill; supplemental bill. </p> <p>In general, nothing which has) occurred since the filing of a bill can be added to it by amendment, but must be brought in by supplemental bill. p. 531</p> <p>The doctrine that equity will retain jurisdiction to settle the entire controversy is confined to the determination of rights dependent upon or germane.to the subject-matters and main purposes of the bill. Jurisdiction will not be retained to adjust independent controversies between the parties, or controversies beyond the scope of that raised by the bill. pp. 532-533</p> <p>An agreement between a surety company and a reinsurance company, as to the auditing of their accounts upon notice of dissolution, construed. pp. 521-531</p>

<p>Appeal from tbe Circuit Court for Harford County. (Harlan, J.)</p> <p>Tbe facts are stated in tbe opinion of tbe Court;</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City. (Heuisler, J.)</p> <p>The facts are stated in. the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Worcester County. (Jones, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Receivers and trustees named in mortgages. </p> <p>In general, the mere appointment of receivers does not affect the lien of a mortgage. p. 562</p>

<p>Appeal from the Baltimore City Court. (Gorier, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Prince George’s County. (Beall, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Baltimore County. (In Equity.) (Duncan, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from, the Circuit Court of Baltimore City. (Dobler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Baltimore City Court. (Gorter, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City. (Heuisler, J.)</p>

<p>Appeal from the Superior Court of Baltimore City. (Doblkr and Dorter, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Three appeals in one record from the Circuit Court of Baltimore City. (Bond, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from. the Superior Court of Baltimore City. (Stump, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Caroline County. In Equity. (Adkins, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Orphans’ Court of Baltimore City.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Court of Common Pleas of Baltimore City. (Dawkins, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Washington County. In Equity. (Keedy, J.)</p> <p>The facts are stated in the opinion of the Court.</p>