The State of Maryland, use of Washington County, vs. The Baltimore and Ohio Rail Road Company, 12 G. & J. 399

Stephen, J., delivered the opinion of this court. This is an action of debt, instituted in the name of the State of Maryland, for the use of Washington county, to recover the sum of one million of dollars, claimed by the county from the Baltimore and Ohio Rail Road Company, for an alleged violation of contract contained in one of the provisions of its charter. In bar of any recovery in this suit, the appellee has pleaded, that nothing is due to the county; and also, the act of Assembly annulling the obligation and releasing the forfeiture, in virtue of which the said sum of money is alleged to be due.

The controversy between the parties is one of considerable magnitude, not only as regards the sum involved in'the litigation, but on account of the aspect it has assumed, as a ques-lion involving grave considerations of constitutional law. The case has been argued with great legal learning and ability by the distinguished counsel employed to advocate the cause of the respective parties, and the court have derived no small degree of assistance in coming to the result at which they have arrived, from the light which has been shed upon the subject in the course of the discussion.

On the part of the appellant, it has been treated in the course of the argument as a clear case of contract, covered by a constitutional sanction, and therefore inviolable by legislative interference; on that of the appellee, it has with a confidence seemingly and no doubt really, equally sincere, been treated as a clear case of penalty, and therefore subject to legislative control, and free from constitutional difficulty.

We have considered with that care and attention which the importance of the subject demanded, the arguments which have been urged on both sides of the question, and have come to the conclusion that, according to the true construction of the act of the Legislature from which the controversy has arisen, it is not a case of contract, the obligation of which has been impaired by legislative interference, but a ease of penalty, and therefore subject, as to its enforcement, to the will and pleasure of the Legislature.

It is a rule in the exposition of statutes, that the will of the Legislature is to be regarded, and to be carried into effect, so far as they keep within the limits prescribed to them by the Constitution or fundamental law, and in ascertaining such will or intention, the well established rule is, that “if divers statutes relate to the same thing, they ought to be all taken into consideration in construing any one of them.” For this principle, sec 6 Bacon’s Abr. 382. And so far has this rule been carried, that it is held to apply, although one of them may have expired.

For which doctrine, see also the same book, 383, where it is said — -“it is a rule in the construction of statutes, that all which relate to the same subject, notwithstanding some of them may be expired, or are not referred to, must be taken to be one system, and construed consistently,” Adopting this rule in the case now before this court, as a legitimate test or standard by which to indicate the legislative mind, we think the inference will be found to be well warranted, that the duty imposed upon the appellee of locating the road through Cumberland, Hagerstown and Boonsborough, was intended to be enforced, not by the obligation of contract, but by the sanction of penalty alone.

The language of the 5th

section of the act of 1835, chap. 395, is as follows: “and it is hereby declared to be and made the duty of the said company to, and they shall so locate and contract the said road, as to pass through each of the said places“Provided, that if the said Baltimore and Ohio Rail Road Company shall not locate the said road in the manner provided for in this act, then and in that case they shall forfeit one million of dollars to the State of Maryland, for the use of Washington county.” It is another well settled rule in the construction of a statute, that “the words are to be taken in their natural and ordinary signification and import, and if technical words are used, they are to be taken in a technical sense.” 1 Kent’s Com. 462.

Applying these principles of

interpretation to the case before us, and we think the conclusion is well warranted, that penalty and not contract was in the contemplation of the Legislature when they enacted the fifth

section of the act of 1835, upon which this suit has been instituted, in case of non-compliance with the requirements of the law, the company is to forfeit one million of dollars to the State, for the use of Washington county. The term forfeit, in common parlance, strongly implies penalty, and such appears to be the import ascribed to it by lexicographers of the highest respectability, in giving with precision and accuracy, the meaning of our language. Mr. Webster defines the word forfeit to be that which is forfeited or lost by neglect of duty, or in other words, a fine, a mulct, a penalty.

The language, moreover, is not that of convention or contract, but is mandatory in its character. It is the language of the creator to the creature, enjoining a duty to be performed, and imposing a penalty or forfeiture for disobedience or neglect. It is therefore, we think, in every view and aspect under which it could be considered, penal and not conventional, according to its sound and true

interpretation. In this sense it appears to have been understood by the Legislature when they passed the act of 1840, chap. 260. In that act they say, “that so much of the 5th

section of the act of 1835 as makes it the duty of the Baltimore and Ohio Rail Road Company to construct the said road so as to pass through Hagerstown and Boonsborough, be and the same is hereby repealed; and that the forfeiture of one million of dollars reserved to the State of Maryland as a penalty, in case the said Baltimore and Ohio Rail Road Company shall not locate the said road in the manner provided for in that act, be and the same is hereby remitted and released; and any suit instituted to recover the same sum of one million of dollars, or any part thereof, be and the same is hereby declared to be discontinued and of no effect.” In this law, the forfeiture to the State is emphatically termed a penalty, imposed for not locating the road as prescribed by the act of 1835, and although the right of expounding laws belongs to a different department of the government, and is not embraced wdthin the sphere of the legislative power, still the sense of the Legislature upon the subject of laws enacted by themselves, when of doubtful import, is a circumstance not, we think, entirely to be disregarded.

In speaking of the rule that several acts in pari materia, and relating to the same subject, are to be taken together and construed as one system, Chancellor Kent says — “the object of the rule is to ascertain and carry into effect the intention; and it is to be inferred, that a code of statutes relating to one subject, was governed by one spirit and policy, and vras intended to be consistent and harmonious in its several parts and provisions.” See 1 Kent's Com. 463, 464. Much stress was laid in the course of the argument upon the first

section of the act of 1835, which requires the assent of the company to the provisions of that law, as indicating that the fifth

section should be construed to operate as contract, and not as penalty. The term assent, mentioned in that section, it was said, is a word peculiarly appropriate to contract, and not to penalty or forfeiture. This js certainly true as a general proposition, and need not be controverted to elude or avoid the force of the argument upon the present occasion. The assent of the company was essential to give to the law a binding and obligatory force; the principle being well settled, that

an act or charter of incorporation is nothing more than an offer until consummated by acceptance, and in that sense and for that purpose it was manifestly used in the first sectio'n of the act. It was assented to in that sense alone-which it ought to receive, according to its sound and genuine

interpretation; and to give to the term a different import, would be a perversion of the purpose for which it was adopted. As a further proof that the fifth

section ought to be construed as creating a penalty and not contract, it may be useful to refer to the ninth

section of the same act, where the language of contract is clearly and unequivocally adopted. The terms there used are peculiarly appropriate for that purpose, and are so expressive or significative of that intent, as to leave not a shadow of doubt upon the subject. The expression there used, “stipulate, agree and bind the said company,” speak a language too explicit to be misunderstood, and remove every shadow of doubt as to the intent. Now is this the only instance in which the Legislature have spoken an unequivocal language, when they intended to bind the company by the solemnities or obligation of contract. In the third

section of the act of 1827, chap. 104, expressions of similar import, are carefully used to create the obligations of contract instead of penalty; and that too in relation to the same subject, as the one embraced by the fifth

section of the act of 1835, out of which this controversy has arisen, and if it was designed to deal with the company in the same manner, and to impose upon them the same duties and obligations, to be fulfilled under a similar responsibility in the 5th

section of the act of 1835, it is difficult to conceive, why the appropriate language to execute that intent was abandoned, and terms of more equivocal import adopted. In the third

section above refered to, after specifying certain conditions, upon the performance of which, the Treasurer should be authorised to subscribe on behalf of the State, the Legislature insert the following proviso: “And provided also, that the President and Directors of the said company shall agree so to locate said road, that it shall go to, or strike the Potomac river at some point between the mouth of the Monocacy river and the town of Cumberland, in Allegany county, and that it shall go into Frederick, Washington and Allegany counties; and provided also, before such subscription is made, the President and Directors of the said company shall, in writing to be approved by the Attorney General, bind the said company to allow the State to subscribe for the remaining five thousand shares on the same terms, at any time during the session of the next General Assembly.” Here it is not made the duty of the company to locate the road in a particular direction, under a forfeiture for non-performance or neglect, as in the 5th

section of the act of 1835; but in the language of contract, they are made to agree so to locate it, that it shall go into Frederick, Washington and Allegany counties, and in reference to the State’s right of future subscription, it is still more apparent with what anxious solicitude the solemnities and binding efficacy of contract are preserved in the same section; upon that subject, the company was to be bound by a written instrument, which was not to be deemed satisfactory until it had received the sanction of the law officer of the State.

It is moreover to be observed, that when at a subsequent period, it was found necessary, in consequence of a conflict of route with the canal company, to release conditionally the rail road company from their contract, as entered into by the act of 1827, the law by which they were discharged, bolds the same language, and speaks of it as a condition or agreement from which they were released. If then, the duly imposed by the 5th

section of the act of 1835, was intended to be enforced by penalty, and not by contract, the next question to be considered is, were the Legislature competent to release the penalty in the manner they have done, by the act of 1840, chap. 260? In the exercise of such a jurisdiction, the Legislature are restained by no constitutional prohibition.

The releasing act could not be deemed an ex post facto law in the sense of the Constitution, nor could it be considered as impairing the obligation of a contract; indeedit was not attempted to be impugned upon either of these grounds in the course of the argument, but was exclusively assailed upon the ground that the act of 1835 provided for a case of contract, and not penalty; and that therefore, the act of 1840 was a violation of the constitutional inhibition, forbidding the State Legislatures from passing any law impairing the obligation of contracts.

The money being forfeited to the State as 'a penalty for the use of Washington county, one of the constituent elements of the State, the Legislature had an unquestionable right to remit it. Washington county is an integral part of the State, or portion of the body politic, and the money, if received by her, would belong to her as public property in her public political capacity, to be applied exclusively to the public use.

As a county, she stands to the State in the relation of a child to a parent, subject in all respects to its jurisdiction and power, as well as entitled to the benefits of its fostering care and protection. As a member of the political family, she has a right to participate in the legislative councils of the country; but the will of the majority, when expressed, according to the forms of the constitution, is binding and obligatory upon her, and to that will, as the rule of her conduct, she is bound to submit with becoming deference and respect.

Several instances were referred to in the course of the argument, where it appears that a similar jurisdiction has been exercised by some of our sister States, but it is deemed unnecessary more particularly to refer to them. If then the act of 1840, releasing the penalty, was a legitimate exercise of power, and it was within the constitutional competency of the Legislature to pass it, what was the effect of that law upon the rights of the plaintiff, as to the further prosecution of her suit, and did it operate to bar the recovery of the penalty which was remitted by it ?

Upon that part of the case we think no doubt can be entertained, as all the authorities referred to seem to speak one uniform language upon the subject; they all agree that no penalty incurred during the continuance of a law, can be enforced after its expiration or repeal, without a saving clause or some special provision to that effect. In 1 Kent’s Com. 465, the principle is stated to be that, “if

an act be penal and temporary by the terms or nature of it, the party offending must be prosecuted and punished before the act expires, orbe repealed.

Though the offence be committed before the expiration of the act, the party cannot be punished after it has expired, unless a particular provision be made by law for the purpose.” To the same effect see 5 Cranch, 283, where Chief Justice Marshall, in delivering the opinion of the court says — “The court is, therefore, of opinion, that this cause is to be considered as if no sentence had been pronounced; and if no sentence had been pronounced, it has been long settled on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.” Many other authorities might be referred to in support of the same principle, but the rule seems to be so well settled, that it is deemed unnecessary to do so.

If this, therefore, is to be deemed a case of penalty, and not one of contract, the act of 1840 seems to operate as a complete bar to the plaintiff’s recovery, and the judgment of the court below ought to be affirmed. But supposing that the views heretofore expressed upon the merits of this controversy are not well founded, and that it is to be deemed a case of contract and not penalty; is it a contract coming within the purview of the Constitution of the United States, which prohibits a State from passing any law impairing the obligation of contracts, and was the act of 1840 therefore a nullity?

In order to arrive at a just conclusion upon that subject, it is material to consider who are the contracting parties, and in what relation does the cestui que use stand to the legal plaintiff upon the record? The contracting parties are the State on the one part, and the rail road company on the other. The consideration of the contract were the franchises and privileges derived by the company from the State, and the cestui que use is one of the counties of the State, claiming an interest incidentally in her political character and capacity, in virtue of one of the provisions contained in that contract ?

The State, for reasons which she deemed sufficient, has thought proper, by

an act of her Legislature, to annul the contract and release the claim of the cestui que use, which this action has been instituted to enforce; and it is now contended on the part of the appellant in support of it, that such legislative act is a nullity, because it violates that great moral sanction of the Constitution, which declares, that no State shall pass any law which impairs the obligation of contracts. To declare

an act of a co-ordinate department of the government an unwarrantable assumption or usurpation of power, because it is a violation of a constitutional prohibition, is an exercise of the judicial office, of a grave and delicate nature, which never can be warranted but in a clear case; but however painful and unpleasant the task may be, it is a duty enjoined upon the courts of justice sometimes to execute it, under the solemn sanctions of an oath, which they are not at liberty to overlook or disregard.

In the case, however, which we now have to decide, we have no such duty to perform, because we think the Legislature have not transcended their constitutional limits in passing the act of 1840, by which they released the claim of the plaintiff, and discontinued the action which was brought to enforce it. Washington county, by which the claim is attempted to be enforced, is one of the public territorial divisions of the State, established for public political purposes, connected with the administration of the government.

In that character she would receive the money as public property, to be used for public purposes only, and not for the use of her citizens in their private individual characters and capacities. In that relation they would have no immediate interest, and could assert no title. She is one of the instruments of the government, invested with a local jurisdiction to aid in the administration of public affairs, and may be emphatically termed a part of the State itself.

If then it be public, and not private property, it would seem to be completely at the disposal of the government, and the act of 1840 was nothing more than a rightful exercise of legislative power. In the forty-fourth numbcr of the Federalist, a work of distinguished merit and ability, written principally by two eminent members of that convention of enlightened men, by whom the Constitution of the United States was formed, Mr.

Madison, speaking of that principle contained in it, wdiich prohibits the States from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts, uses the following language as indicating his understanding of the views of the convention when they adopted that prohibitory clause of the Constitution — “The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters.

Our own experience has taught us, nevertheless, that additional defences against these dangers ought not to be omitted.

Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights.” In 2 Dallas, 320, Judge Patterson, who was also a member of the convention by which the Constitution was formed, speaking of the import of the same constitutional restriction upon State legislative power, expresses himself in the following terms: “Over public property they have a disposing and controling power, over private property they have none, except perhaps in certain cases, and those under restrictions; and except also what may arise from the enactment and operation of general laws respecting property, which will affect themselves as well as their constituents.” In 2 Kent's Com. 275, Chancellor Kent says : “Public corporations are such as are created by the government for political purposes, as counties, cities, towns and villages, and the whole interest in them belongs to the public.” In the Dartmouth College case, the Chief Justice, in delivering the opinion of the court, observed, that the provision in the Constitution never had been understood to embrace other contracts than those which respect property or some object of value, and confer rights which may be asserted in a court of justice.

Dartmouth College was a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with the government, and its funds were bestowed by individuals on the faith of the charter, and those funds consisted entirely of private donations. The corporation was not invested with any portion of political power, nor did it partake in any degree, in the administration of civil government. A contract of that kind he held to be within the purview and protection of the Constitution. In 9 Cranch, 52, Mr.

Justice Story, in delivering the opinion of the court, says: “In respect also to public corporations, which exist only for public purposes, such as counties, towns, cities, &c., the Legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing, however, the property for the use, of those, for whom, and at whose expense, it was orginally purchased.” In 9 Gill & John.

Rep., 401, this court express themselves to the same effect, where they say: “Public corporations are to be governed according to the laws of the land, and the government has the sole right, as trustee of the public interest, to inspect, regulate, control and direct the corporation, its funds and franchises.

That is of the essence of a public corporation.” Again, in page 397 of the same book, it is said: “A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of civil government; an instrument of the government, subject to the control of the Legislature, and its members, and officers of the government for the administration or discharge of public duties, as in the cases of cities, towns, &e.” In 1804, the justices of the levy courts of the respective counties were incorporated, and all property belonging to any county, or appropriated to any county use or purpose, was vested in them for the benefit of the county; and by

an act passed in 1829, chap. 21, commissioners are directed to be chosen biennially by the voters of the county of Washington, who are likewise incorporated, and in whom the same powers and privileges are vested, as were given to the justices of the levy courts by the act of 1804, and all property belonging to the county or appropriated to its use, is in like manner vested in the said commissioners.

The money then for which this suit has been brought, if recovered, would be vested in this body coporate, as a public corporation, for public or county purposes, and would not be private property, belonging to the citizens of the county in their individual rights or private capacities. It Would be held by the commissioners as public property given by the State, to be used only under legislative authority, for public purposes, and be subject in their hands, in all respects whatsoever, to the controling power and jurisdiction of the Legislature.

It is a circumstance moreover worthy of consideration, as indicating the public, character of these commissioners, and the official relation in which they stand to the government as public agents, that the act of incorporation provides, that in case of death, resignation, refusal to act, or removal from the county, the vacancy so occasioned, shall be filled by the Executive of the State, until a new election shall take place.

To put the question in a still stronger light, let it be supposed for the sake of the argument, that the one million of dollars had been appropriated as a forfeiture to the use of the Eastern Shore of Maryland., one of the two great divisions of the State, could it be contended with any semblance of reason or propriety, that a remission of the penalty by the State would not be a legitimate exercise of legislative power?

Or to put the question in a still clearer point of view, suppose the money had been appropriated to the use and benefit of all the counties of the State, designating each of them by their respective names, (which would be substantially to the use of the State,) could it be successfully maintained, that the government, if the public good required it, would have no right to remit the forfeiture ?

And if it could be lawfully done, where the interests of all would be involved, upon what principle of sound reasoning could it be urged, that the same power and jurisdiction would not exist, where the rights of one alone would be concerned ?

If the interest of Washington county could be merged in the public good in association with her sister counties, without a violation oí constitutional law, where? reasons of State policy required the sacrifice to be made upon the altar of the general welfare, it is difficult to conceive upon what ground of fair reasoning a similar power could be denied to exist, where her interest alone, in her separate capacity, should be offered up as a victim, to attain the same object. A jurisdiction which would be rightfully exercised in the one case, could not be wrongfully exerted in the other.

Under every view, therefore, which we have been able to take of this case, we think that the claim of the appellants is wholly groundless and untenable, and that the judgment of the court below ought to be affirmed. JUDGMENT AFFIRMED.