St. Mary's Industrial School for Boys v. Brown

Alvey, J., delivered the opinion of the Court. The question of jurisdiction was rather suggested than seriously argued by the counsel for the1 appellants. Since the case of the Mayor and City Council of Baltimore vs. Gill, 31 Md., 375, the question of jurisdiction in a case like the present must he considered as settled in this Court. Parties in the position of the appellees in this case may invoke the restraining powers of a - Court of equity, and that Court will entertain jurisdiction of their suit against municipal corporations and their officers whenever the latter are shown to he acting ultra vires, or are assuming or exercising'a power over the property of the citizen, or over corporate property or funds, which the law does not confer upon them, and where such unathorized acts may affect injuriously the rights and property of the parties complaining.. This is the principle settled by the case to which we have referred, and in addition- to the authorities therein cited, we may refer to the cases of Mercer County vs. Pittsburgh and Erie R. Co., 27 Penn. St., 404 ; Mott vs. The Pennsylvania R. Co., 30 Penn. St., 90; Page vs. Allen, 58 Penn. St., 338, and Newmeyer vs. The Missouri and Miss. R. Co., 52 Mo., 81, and also to 2 Dillon Mun. Corp., sec. 731, in all of which the same proposition is maintained. — 327 — The question of jurisdiction being clear, we must consider the question of the appellees’ right to relief on the facts as charged in their bill of complaint. That they are tax-payers of the city, and would be affected by the appropriations stayed by the injunction, are facts not controverted by the appellants. The record before us contains four appeals, — all from the same decree. The first, that of the “St. Mary’s Industrial School for Boys;” second, that of the “Maryland Industrial School for G-irls;” third, that of the “St. Vincent’s Infant Asylum of the-City of Baltimore;” and fourth, that of the “Maryland Institute for the Promotion of the Mechanic.Arts.” These appellants were among a number of other institutions to which appropriations were made by the City Ordinance, approved on the 12th of June, 1875, making general appropriations for that year. The appropriations to the appellants were classed under the head of “City Poor,” and were of specific sums of money, without reference to or mention of any relation or agency between the city and those institutions. The bill of the appellees was filed upon the theory that the Mayor and City Council in the administration of the municipal government, can exercise only the defined and limited powers, and perform the duties, prescribed in the charter of the city, and therefore cannot sustain or aid institutions, however beneficial in themselves, which are not created for or required in the exercise of the powers and performance of duties prescribed by law. The bill charges that the appellants were organized for the administration of private charities, mostly under the influence and control of churches or religious denominations, and are in no sense public institutions ; that they are organized by and composed of private citizens and managed by them, and are not under the control or supervision of the City or of the State, nor were any of them formed or incorporated to aid of facilitate the municipal — 328 — government of the City in the performance of any of the duties imposed by its charter. It is therefore insisted by the appellees, that such institutions are not in any sense public, or at all events not municipal agencies, such as the City is bound or has the right to maintain, assist, or promote by the exercise of the taxing power. ■ The prayer of the bill is, that the appropriations in question may be declared inoperative and void, and that an injunction be issued to restrain the payment of the appropriations to the institutions to which they were made. The appellants, in their several answers, controvert the positions of the appellees taken in their bill, and insist that they are now, and have been since their organization, performing functions that properly pertain to the municipal government of the City. That they are charitable and benevolent institutions; the three first named appellants having been organized for the purpose of, and are devoted to, fostering, reforming and educating the pauper children of the City, and thus relieving the City of an expense that would otherwise be entailed upon it; while for the Maryland Institute for the Promotion of the Mechanic Arts it is claimed that it is an important adjunct to the Public School System of the City, and hence should receive aid from the City government. They all deny that they are private corporations, managed for private purposes; but claim, on the contrary, that they are public corporations, managed for public purposes, and are in fact municipal agencies, and therefore entitled to the appropriations made to them as of right. These institutions are all of the most benevolent and charitable character, and well deserve the patronage and support of all good citizens ; but the question here is as to the authority on the part of the municipal government to make appropriations for their support, by the exercise of the taxing po.wer. Whether these institutions are strictly private, or quasi public corporations, it is unimportant here to inquire ; it is — 329 — enough to know that they do not owe their creation to the municipal power conferred on the City of Baltimore, and were not created for the City by the Legislature of the State, as instruments of municipal administration. They are separate and distinct corporations, composed of private individuals, and managed and controlled by officers and agents of their own, and over which the City has no supervision or control, and for the management of which there is no accountability to the City whatever. Ho ordinance or resolution of the City Council can control the powers and discretion vested in the managing hoards of these institutions, nor have the Mayor and City Council the power to determine who shall or who shall not receive the benefits of the charities dispensed by them. In the case of the St. Mary’s Industrial School for Boys, the fact that the Governor of the State and the Mayor of the City of Baltimore each appoint every two years, three persons to represent the State and City in the hoard of trustees of that institution, under the amendment of its charter, by the Act of 1814, ch. 288, in no manner changes the nature of the institution, nor makes it a municipal agency. And the same may he said in regard to the amendment to the charter of the Maryland Industrial School for Girls, made by the' Act of 1810, ch. 391. The fact that the Governor of the State is empowered to appoint ten, and the Mayor of the City five, of the directors of the institution, the hoard being composed of thirty, does not put the State nor the City in such relation to the corporation as to make it either a public, State or municipal institution. The object, manifestly, in providing such representation in those institutions, on the part of the State and City, was for the purpose of removing an objection to them, made by some portions of the community, that they were close corporations; that there were no means provided to give assurance to the public that the inmates of the institutions were properly treated; and — 330 — insamuch as those institutions themselves applied for and obtained from the Legislature compulsory powers and control over the inmates, it was deemed proper that the State and the City should appoint the number of trustees and directors named. Such trustees and directors, however, do not control the institutions ; nor are they clothed with any State or municipal authority, beyond their mere appointment, to be exercised in the management of the affairs of the institutions, and cannot, therefore, be directed, controlled, limited or restrained, in the exercise of the powers and duties as prescribed in the charters and by-laws of the corporations in whose proceedings they participate. They simply exercise, in common with the other trustees or directors, the special authority conferred by the Acts of incorporation, and nothing more. Nelson vs. Cushing, 2 Cush. Rep., 529. So far, therefore, as the City is concerned, these corporations are entirely separate from and independent of it, in all corporate action and control. And as to the Maryland Institute for the Promotion of the Mechanic Arts, the mere fact that the City may own the ground upon which the building is erected, or that the City, in its deed to the institution, has reserved certain privileges in the use of the Hall, as part of the consideration for the grant, cannot constitute that corporation a municipal agency. It is, like the other corporations just mentioned, without municipal relation, and is under no obligation to the City to discharge any mere municipal function for which it can legally claim compensation. Such, then, being the nature of these institutions and their relation to the municipal government of the City of Baltimore, the question is, upon what principle can the appropriations made to them be legally supported? It is contended by the appellants, and with considerable force of argument, that though they are not under the control and supervision of the City, yet they have been performing functions and duties that rightfully pertain — 331 — and belong to the City government, and have, to that extent, relieved the City from the duty and the expense of providing and maintaining agencies for the performance of those functions under its immediate control; that it was the duty of the municipal authorities to establish and maintain institutions of like character to those of the appellants, and inasmuch as no such institutions have been established by the City, it is competent for it to exercise the taxing power and apply the funds thus raised to enable or assist others to do what the City has been authorized but failed to do. And in support of this view of the subject, we are referred to Code, Local Laws, Art. 4, secs. 31, 32, 33, and 827, under title “ City of Baltimore.” By sec; 31, just referred to, the Mayor and City Council are authorized to “erect or establish houses of correction, hospitals, or pest houses within or without the City, if necessary, and pass all ordinances for the government of the same.” By secs. 32 and 33, the Mayor and City Council are authorized to pass ordinances “for promoting the great interests and insuring the good government of the City,” and also “all ordinances necessary to give effect and operation to all the powers vested in the Corporation-of the City of Baltimore.” And by section 827, as modified by Act of 1872, ch. 377, sub-ch. 16, secs. 1 and 4, the Mayor and City Council are authorized “to establish in the City a system of free public schools, under such ordinances, rules and regulations as they may deem fit and proper to enact and prescribe ; ’ ’ and are also authorized to levy and collect such amount of taxes as may be necessary to defray all the expenses of the system. Before proceeding to determine what.application these or any other provisions of the Code have to the subject under consideration, it will be proper to state some general rules as to the construction of municipal powers. And first and principally, we must bear in mind that all such powers are delegated, and depend .upon legislative charter or grant; — 332 — and that the corporate authorities can exercise no power which is not, in express terms, or by fair and reasonable implication, conferred upon the corporation. In construing a grant of municipal powers, in the case of Minturn vs. Larue, 23 How., 435, the Supreme Court of the United States but announced a well established rule when it said, “It is a well settled rule of construction of grants by the Legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the Act, or derived therefrom by necessary implication, regard being had to the objects of the grant.’ Any ambiguity or doubt arising out of the terms used by tbe Legislature must be resolved in favor of the public. This principle has been so often applied in the construction of corporate powers, that we need not stop to refer to authorities.” This same rule of construction is stated by Judge Cooley, (Const. Lim., 211, 213,) and by Judge Dillon, (Mum. Corp., sec. 55,) as settled, and it is supported by a large number of decided cases, to which may be added cases decided by this Court. Mayor & City Council vs. Clunet, 23 Md., 431; Gill vs. Mayor d City Council, 31 Md., 395. And in respect to the power of taxation, Judge Dillon has summed up the result of the authorities in a very clear and succinct form, (2 Dillon Mun. Corp., sec. 605,) which we cannot do better than give in his own words. He says : “It is a principle universally declared and admitted, that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred. It has, indeed, often been said that it must be specifically granted in terms; but all Courts agree that the authority must be given either in express words, or by necessary implication, and that it cannot be collected by doubtful inferences from other powers, or powers relating to atber subjects, nor deduced from any consideration of con — 333 — venience or advantage. It is important to bear in mind that the authority to municipalities to impose burdens of any character upon persons or property is wholly statutory, and as its exercise may result in a divestiture and transfer of property, it must be clearly given and strictly pursued. ” This is according to the authorities, and is a most just and salutary rule of restriction against arbitrary and unauthorized taxation. Seeing, then, that there must be authority either plainly expressed in terms or necessarily implied for making the appropriations in question, we fail to perceive how that authority can be deduced from the sections of the Code to which we have been referred. The power to erect or establish houses of correction or hospitals exists, it is true, but those institutions, when erected or established, are required to be governed by the City. They must not only derive their existence from the authority of the City, but they are made municipal institutions, and become agencies in the administration of municipal power. Nor is there anything in sections 32 or 33 bearing upon this subject. They simply declare the authority of the City to pass ordinances for general regulation, and to carry into effect and operation the powers conferred upon the City government. And as to the power supposed to be conferred by the Act of 1872, ch. 377, that has reference alone to the free public school system of the City, established, regulated and governed by the Mayor and City Council, and does not at all contemplate support to institutions like the appellants. It is claimed for the Maryland Institute for the Promotion of the Mechanic Arts that it is a school of an important character, and is of great interest and value to the mechanics and others of the City ; that it has accumulated a large circulating library, and has established and successfully maintained large and flourishing schools in the various branches of designing, book-keeping, writing, music and chemistry, all of which have been availed of by — 334 — the youth of the City, and that the Institute is in truth an important adjunct of the school system established for the City. All this is doubtless true, and while the establishment of such an institution reflects great credit upon, and has justly become an object of interest and pride to-, its founders and supporters, and indeed to the City, the difficulty here is, that it has not been legally embraced in the public school system, and made subject to the ordinances, rules and regulations that the Mayor and City Council may have adopted in pursuance of the Act of 1812, ch. 377. Until this difficulty be removed, the legality of the appropriation cannot be supported under the Act of 1812. We have carefully examined all the statutes to which we have been referred, and all others in any manner relating to the subjects under consideration, and we have utterty failed to discover any express po»\er, or any by fair implication, by which the appropriations to the appellants, in the manner in which they have been made, can be sustained. They are made without terms or conditions. The institutions could receive the money thus appropriated, and the day after, in the exercise of the powers completely in their control, discharge every inmate received from the City. We speak not of what would likely be done, but of the power to do. The City Council in making these appropriations entirely abdicate all discretion over the subject of their application. They become, therefore, mere donations. Who shall or who shall not be the objects of the charity, the City retains no power to determine. Whether the inmates really belong to the pauper class, — whether they, be really objects of municipal care and protection, — ■ are questions that the City authorities do not determine, and have no means of determining. It is all left to the discretion of those who manage the institutions, and they, as we have shown, are not municipal agents, nor subject to any control or accountability as to the use and application — 335 — of the money. It is certain, we suppose, that the City Council could have no power to make appropriations to these institutions simply as such, nor because merely of the very humane and laudable objects and purposes for which they were created by their founders and promoters; it is only because of the actual services and benefits rendered the City that any claim could be urged for their support from the City treasury. And if this be so, what guarantee has the City that services or benefits will accrue, commensurate with the appropriations that are made ? The same principle that would sustain these appropriations, would equally sustain appropriations to every private school and private charity in the City. And once concede the power to make them, and it will be in vain to invoke the Courts to exercise a discretion as to any limit in the amount or extent of them. That the city has ample power delegated to it, and that it is a duty, to provide for the foundlings, the insane, the indigent infirm and helpless, and for the correction of the vicious and vagrant portions of its population, is beyond all question ; but whatever provision may be made must be under the control and subject to the supervision of municipal authority. The authority that is held and exercised in this behalf is a trust, as well .for those who become the objects of it, as those who support it by contribution in the form of taxes levied upon their property; and being an important public trust, it cannot be delegated beyond the power and discretion of those to whom it is confided. We do not design, however, to he understood as intimating that it would not he competent for the Mayor and City Council to contract for the care, maintenance and training of those subject to its power, or who have claims upon its-charity, of the class of those cared for, maintained and trained, in the St. Mary’s Industrial School for Boys, the Maryland Industrial School for G-irls, and the St. Vincent’s Infant Asylum of Baltimore. If the city has not provided — 336 — for such persons, or if they can be better taken care of and trained in those, or such institutions, than in the institutions of the city, we can perceive no good reason why the city may not arrange and contract for such care and training. Such contracts appear to have been made in the cases of the “Maryland Lying-in-Asylum,” and the “Eye and Ear Institutes;” and we think the power to make such contracts may well be conceded to exist. Its exercise, however, to be valid, must be with the limitation, that the subject-matter of the contract be kept within the power and control of municipal authority, and that complete accountability be provided for; and thus make the institutions contracted with, pro hac vice, municipal agencies. (Decided 22nd June, 1876.) The fact that the institutions may be under denominational of religious control, can m no manner affect their qualification for assuming such relation to the city, or for the full and faithful discharge of the duties that they may contract to perform. Charity, to say the least of the matter, is quite as likely to be fully and faithfully administered under such auspices as it could be under any other. It could, therefore, be no objection that the institutions are or may be under the control and influence of those belonging to any particular church or denomination. Finding no warrant or authority to justify the appropriations to the appellants, we have no alternative but to declare them void, and must, therefore, affirm, the decree as to those appropriations. We shall do so, however, without costs to the appellees. Decree affirmed.