Funk v. Mullan Contracting Co.

78 A.2d 632, 197 Md. 192
CourtCourt of Appeals of Maryland
DecidedMarch 7, 1951
Docket[No. 128, October Term, 1950.]
StatusPublished
Cited by15 cases

This text of 78 A.2d 632 (Funk v. Mullan Contracting Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Funk v. Mullan Contracting Co., 78 A.2d 632, 197 Md. 192 (Md. 1951).

Opinions

Marbury, C. J.,

delivered the opinion of the Court.

Four corporations, each engaged in the contracting business in the State of Maryland, each a taxpayer of the State, and each doing a substantial portion of its business in performing contracts with the State of Maryland, (one, over $3,000,000.00 during the past two years; one, $500,000.00 during the same period; one, $190,000.00, and one, $878,000.00) joined with four individuals, each of whom is a property owner and taxpayer in the State, and with a member-corporation consisting of 141 individuals who are general contractors in the State, employing in excess of 1200 people, it being also a taxpayer of the State, filed a bill of complaint against six defendants who constitute the Commission On Prevailing Wages of the State of Maryland, created by Chapter. 30 of the Acts of 1950. The bill is filed not only on behalf of the complainants but also on behalf of all taxpayers of the State who may wish to join in the suit. It is contended by the complainants that this Act is unconstitutional and void for a number of reasons, and the Circuit Court No. 2 of Baltimore City was asked to so declare it, and to restrain the defendants from acting as a purported commission under its authority and from carrying into effect its provisions. To this bill of complaint the defendants demurred. The demurrer was overruled, an answer was then filed, testimony was taken and a stipulation filed, and the chancellor, by his decree, declared Chapter 30 to be unconstitutional, and enjoined the defendants from attempting to act under it. From this decree, the defendants took this appeal.

Appellants contend that the appellees have no standing to maintain this suit. They say that neither as tax[195]*195payers, nor as persons engaged in the contracting business, have they sufficient interest in the subject, that none of their legal rights has been violated, and therefore the bill must be dismissed. The commission attempted to be created by Chapter 30 of the Acts of 1950 was authorized by that Act to prescribe maximum hours of work for all laborers, workmen, and mechanics employed by any contractor in the execution of any contract for the State in the construction of buildings, roads or bridges. The Commission was also authorized to promulgate schedules of prevailing wages for the various areas of the State, and any contractors with the State should not pay wages less than those promulgated by the Commission. Civil and criminal penalties were provided in the Act to aid in its enforcement. Appellants say that no contractor has a right to a contract for State work; that the State has a right to fix the hours of work and the wages to be paid in contracts made with it; that the four contractors have no standing under these conditions, as such; that the association of contractors has no standing whatever, and that taxpayers have no right to prevent the enforcement of a criminal statute. They cite in support of the last proposition the recent case of Hammond v. Lancaster, 194 Md. 462, 477-478, 71 A. 2d 474, 479. In that case, which was brought to challenge the constitutionality of the Subversive Activities Act, Chapter 86 of the Acts of 1949, the majority of the court in its opinion said: “Moreover, the general rule is that equity will not interfere to prevent the enforcement of a criminal statute, even though unconstitutional.”

While it is true that the Act of 1950 does contain penal provisions, and, to that extent at least, is a criminal statute, these provisions are merely for the purpose of enforcing the main purpose of the Act. The bill of complaint sets out that the effect of the Act in establishing schedules of wages will materially increase the cost of construction work of the State of Maryland, and thereby place an additional burden upon the taxpayers [196]*196of the State. A taxpayer is entitled to invoke the aid of a court of equity to restrain the action of an administrative agency of the State, when such action is illegal and may injuriously affect the taxpayer’s rights or his property, (Masson v. Reindollar, 193 Md. 683, 69 A. 2d 482) and his right to make such a claim does not depend upon the result; that is, he may be wrong in his contention, but nevertheless he has the right to invoke the aid of the courts to make it. In this case, there is a contention that the Act creating the Commission is void, and that the effect of acting under it will'be to increase the cost to the State, and therefore to the taxpayers, of all of its construction work. We think the appellees, as taxpayers, were entitled to bring this suit. The case presented here is materially different from that in Phillips v. Ober, 197 Md. 167, 78 A. 2d 630. In that case, it was not alleged that the taxpayers would be pecuniarily affected. In the case before us, it is so alleged.

The first contention we are called upon to consider is the authority of the General Assembly to pass such an Act as Chapter 30 at the short session of 1950. This raises at once the question what is the authority given the Legislature in the 30-day sessions authorized by Sec. 15 of Article III of the Constitution. The section as it now reads was submitted to the voters by the Act of 1947, Chapter 497, and adopted by them at the November election in 1948. Governor O’Conor had previously appointed a Commission on the Distribution of Tax Revenues, headed by Judge Joseph Sherbow. This Commission made a notable report on September 30, 1946, making numerous recommendations which were for the most part adopted by the Legislature. One of these was improvement in the State budget procedure, by having annual, rather than biennial budgets. This would necessitate annual sessions of the Legislature which had not been previously authorized, and would require an amendment to the Constitution. The Sherbow Commission recommended the submission to the voters [197]*197of the State of such an amendment. The Legislative Council submitted to the General Assembly a proposed amendment providing for yearly sessions without any restrictions as to what might be considered therein. This was amended in the Legislature by the insertion in the proposal submitted to the people of the following words:

“In any of said thirty-day sessions in even years, the General Assembly shall consider no bills other than (1) Bills having to do with budgetary, revenue and financial matters of the State Government, (2) legislation dealing with an acute emergency, and (3) legislation in the general public welfare.”

It is apparent, therefore, that the main purpose of providing for 30-day sessions in the even years was to enable annual budgets to be submitted for the State Government, and that the amendment, while it did not wholly restrict these sessions to budgetary matters, did place certain restrictions upon the character of legislation which should be considered. This is a clear departure from the ordinary authority to consider, in the regular 90-day session, or in any special session, all matters that might properly be brought before the General Assembly, although there are already prohibitions in the Constitution against the passage of certain laws. (See, for instance, Sec. 33 of Article III). Section 15 provides a new restriction upon the right of the Legislature to pass any legislation at the short even year sessions except that enumerated, or, perhaps a better way to express it is to say that it has no authority to pass any legislation at such sessions other than that enumerated.

It is not contended in this case that Chapter 30 was passed, or could be passed, under clauses (1)

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Bluebook (online)
78 A.2d 632, 197 Md. 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/funk-v-mullan-contracting-co-md-1951.