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their petition, alleging that they were creditors of said company, and that the said bill filed by C. Hazeltine Basshor did not confer upon the court jurisdiction to appoint a receiver, because, first, it does not contain any prayer for the dissolution of the defendant corporation, "and, second, that it does not clearly allege that said corporation is insolvent, in that it is unable to pay its debts as they mature." They also allege therein that the decree passed upon said bill and answer "is insufficient in that, first, it does not include the real estate owned by the defendant corporation, and, second, in that it makes no provision for the equitable distribution of the assets among the creditors, and, third, it provides for a continuance of the business by the receiver." The petition then charges that, in view of such alleged defects in the bill and the decree, they, with the other creditors of the corporation, "are not properly protected by the proceedings as it now stands," and asks that an order be passed making them parties plaintiff, and permitting them to file a supplemental bill of complaint. Upon this petition an order was passed, whereby the petitioners were made parties to the proceed

holders as might unite therein and contribute to the cost thereof. The bill alleges that the assets of the company (consisting in part of a warehouse known as No. 28 Light street) are approximately of the value of $270,000; that a part of it is "probably subject to considerable depreciation if disposed of at forced sale"; that the indebtedness of said firm, including a judgment or decree recently entered against the defendant for the sum of $21,000 in favor of Edward C. Carrington, Jr., receiver for the Hammond Ice Company, is approximately $130,000. The bill charges "that, notwithstanding the fact that the defendant company is not insolvent and the value of its assets is greater than the amount of its debts, it is unable, by reason of the fact that it is not able to realize immediately upon its open accounts, to pay forthwith the amount of said decree, and that, if said Carrington, as such receiver, should be permitted to seize, under an execution, an amount of the assets of the defendant sufficient to yield at sheriff's sale the amount of said decree, the great loss almost inevitably resulting therefrom would cause irreparable damage to the creditors of the defendant, other than said judgment creditor, and to the stockhold-ings as prayed, and were granted permission ers of the defendant, and might even impair its existing solvency," and alleges that "the only manner of preserving the assets of the defendant corporation, or of preventing their value from being depleted and destroyed in large measure, is that a receiver or receivers be appointed to take possession and charge of all the assets of the defendant, and to continue the operation of said plant," under the guidance and direction of the court, for a limited time to be fixed by it. The prayer of the bill asks for the appointment of a receiver to take charge of all the property of the defendant corporation and to continue the operation of its business until sold or otherwise disposed of under order of the court, and likewise for an injunction.

On the same day the bill was filed, the defendant, the Thomas C. Basshor Company, filed its answer admitting the allegations of the bill and consenting to the passage of a decree as prayed, to which, on the same day, a general replication was filed. Upon the bill, answer, and replication the court below passed an order appointing one J. Albert Hughes receiver, with power to take charge and possession of the goods, wares, merchandise, books, papers, and effects of said corporation, and to collect its outstanding indebtedness, and continue its business. The order also commanded the officers and agents of the defendant corporation to yield up and deliver to the receiver the above-mentioned personal property, and directed that an injunction be issued as prayed in the bill.

Subsequently on the 2d day of December, 1912, the appellant the Pennsylvania Boiler Works, and the H. W. Johns-Manville Compa

to file a supplemental bill of complaint.

On the following day, December 3d, the plaintiff C. Hazeltine Basshor filed his petition alleging that the prayer of the bill asked that a decree be passed appointing a receiver, with power to take charge and possession of all the property of the defendant corporation; but when granted the decree conferred power and authority upon the receiver to take charge and possession only of the goods, wares, and merchandise of the defendant corporation, and not of the real estate and leasehold property of the corporation mentioned in the bill, This omission, the petition alleges, was due to a clerical error only, and it asks that the decree be amended by expressly conferring upon the receiver therein named power and authority to take possession and charge of all the property and assets of said corporation, “real, personal, and mixed, of whatsoever kind and wheresoever situated."

Upon this petition an order was passed December 3d amending the decree as prayed, and conferring upon the receiver hitherto appointed power and authority to take charge of all the property and assets of the defendant corporation, real, personal, and mixed, etc. On the 12th day of December a further order was passed requiring the receiver to give notice to all persons having claims against the defendant company to file their claims in said court at the time therein named.

Subsequent to the filing of the last-named order the appellant the Pennsylvania Boiler Works, with others, said in the order to be creditors of the defendant company, who had

said notice given by the receiver, appealed to this court from the said orders or decrees of November 23, and December 3, 1912.

The first of the orders appealed from, the one appointing the receiver and granting the injunction, was passed before the above-mentioned petition of the Pennsylvania Boiler Works and others was filed, and the other order, an amendment to the original order relieving it of at least one of the defects complained of in the petition, was passed after the petition was filed.

The petition alleged that upon the facts contained in the bill no jurisdiction was conferred upon the court of equity to grant the relief asked for. It was to supply these omissions that the Pennsylvania Boiler Works and its copetitioners asked to be made parties plaintiff, with the right to file a supplemental bill supplying such omissions. This right, although granted them, was never exercised by the Pennsylvania Boiler Works or any of its copetitioners, nor did it or any of them ever ask that the order appointing the receiver and granting the injunction be rescinded; but the Pennsylvania Boiler Works, with the other appellants herein named, appealed from the original and amended orders passed upon the bill.

[1] Inasmuch as the Pennsylvania Boiler Works and its copetitioners filed no supplemental bill, so far as the record discloses, the only bill filed in the case is the original bill filed by C. Hazeltine Basshor, to which the appellant the Pennsylvania Boiler Works, upon its own petition, has been made a party plaintiff. Therefore by this appeal the Pennsylvania Boiler Works is placed in the position or attitude of appealing from an order granting the relief asked for by its bill of complaint. It is clear to us upon the facts stated, that the right to appeal from these orders is not lodged in the appellant the Pennsylvania Boiler Works.

[2] The other appellants who have appealed from the orders mentioned are, in the order for appeal, said to be creditors of the defendant company who have filed their claims in these proceedings. It is not disclosed elsewhere in the record that these appellants, Harry D. B. Clapp & Co., the Model Stoker Company, the Southern Engineering Company, and the Edro Richardson Brass Company, are creditors, or that they have filed their claims in these proceedings. These facts are only learned from the recitals in the order for appeal. But let us assume they are creditors, and that they have filed their claims in these proceedings. Have they the right to appeal from the orders appealed from?

Like the Pennsylvania Boiler Works they did not ask the court below to rescind the order appointing the receiver and granting the injunction. Nor did they in any way make known to said court their objection to the orders appealed from, but simply filed their

claims in these proceedings, in response to the notice of the receiver, in order to participate in the distribution of the estate in the hands of the receiver, and to this extent they recognized the validity of the appointment of such receiver, and became parties plaintiffs to the bill, and, like the Pennsylvania Boiler Works, they are not allowed to appeal from the orders appealed from.

It being unnecessary, we will not consider the other grounds of the motion to dismiss the appeal. The appeal will be dismissed. Appeal dismissed, with costs to the appellees.

(120 Md. 633)

WELLER et al. v. MUELLER et al. (Court of Appeals of Maryland. April 30, 1913.)

1. VENUE (§ 11*)—ACTIONS AGAINST PUBLIC OFFICERS STATUTORY PROVISIONS.

Acts 1910, c. 217 (Code Pub. Civ. Laws, of any county where the powers of the road art. 91, § 78), providing that the circuit court commission shall be exercised should have jurisdiction of suits for the violation of any provision of that subtitle, applies to a suit to reroad commission of the funds, provided by strain an alleged improper diversion by the Acts 1912, c. 370, to complete the system of state roads, provided by Acts 1908, c. 141, the act of 1908 being incorporated in the Code of 1910 in the same article and under the same subtitle as Acts 1910, c. 217, and such a suit may be maintained in a county in which the road commission has no office, but is constructing a road.

[Ed. Note.-For other cases, see Venue, Cent. Dig. § 20; Dec. Dig. § 11.*]

2. STATUTES ( 199*)-ConstruCTION—“SUB

TITLE.

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Where the term "subtitle," as used in a statute, may be given its ordinary application consistently with the purpose of the act as a whole, its meaning will not be restricted or qualified.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 277; Dec. Dig. § 199.*] 3. COUNTIES (§ 196*)-USE OF FUNDS-REMEDIES OF TAXPAYERS-INJUNCTION. The taxpayers of Baltimore county have a particular interest in the application of the funds provided by Acts 1912, c. 370, for the completion of roads in that county, which will entitle them to maintain an action to restrain the wrongful diversion of such funds by the road commission.

[Ed. Note.-For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. § 196.*] 4. HIGHWAYS (§ 994, New, vol. 14 Key-No. Series)-CONSTRUCTION-HIGHWAY FUNDS.

000,000 for road building purposes to be exActs 1908, c. 141, created a fund of $5,pended by the road commission in the various counties in proportion to the mileage of their existing roads, not more than $1,000,000 to be expended in any one year, and expressly provided that the proportion for each county need not be expended in each year, but that the proportion. Acts 1912, c. 370, provided for ap fund should be eventually distributed in that additional fund to be used in the furtherance of the purpose for which the commission was created and in the same manner as the $5,000000 fund, but provided that $300,000 of that

amount should be expended in Baltimore county, half of which was to be used on a specified

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road. The road commission had allotted to Baltimore county more than its share of the $5,000,000 fund, and sought to apply part of the fund allotted under the act of 1912 to roads in other counties to equalize the expenditure of the fund. Held that, while the fund applied to the specific road could not be diverted to other counties, the additional allotment under the act of 1912 was to be distributed in the same way as under the act of 1908, and the commission might use part of the funds granted to Baltimore county under the act of 1912 to equalize the distribution of the former fund. 5. HIGHWAYS (§ 994, New, vol. 14 Key-No. Series)-CONSTRUCTION-HIGHWAY FUNDS. The fact that the allotment to Baltimore county was a specific sum instead of a specified portion is not sufficient to require a construction of the act of 1912 (Acts 1912, c. 370) which would prevent the eventual fair distribution of the road funds as provided by the act of 1908.

6. HIGHWAYS (§ 994, New, vol. 14 Key-No. Series)-CONSTRUCTION-HIGHWAY FUNDS. The fact that Baltimore county pays a larger road tax than other counties is not a reason for presuming the Legislature intended to discriminate in favor of it by the act of 1912 (Acts 1912, c. 370), since the basis of the distribution of the road fund was road mileage, not road tax.

7. HIGHWAYS (8 994, New, vol. 14 Key-No. Series)-CONSTRUCTION-HIGHWAY FUNDS. Nor does the fact that the Legislature had information that that county had received more than its share under the act of 1908 (Acts 1908, c. 141), when it passed the act of 1912 (Acts 1912, c. 370), indicate an intention by the Legislature that the prior expenditures in that county should be disregarded in the application of the fund provided by the act of 1912. Appeal from Circuit Court, Baltimore County; N. Charles Burke, Judge. Suit by John Lee Mueller and others against O. E. Weller and others. order overruling demurrer to the bill, the defendants appealed. Reversed manded.

From an

and re

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Leon E. Greenbaum, of Baltimore, for appellants. Elmer J. Cook, of Towson, for appellees.

URNER, J. By chapter 141 of the Acts of 1908, which created the state roads com mission and authorized a $5,000,000 road loan, the commission was given the power and charged with the duty "to select, construct, improve and maintain such a 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 370) was passed, authorizing an additional loan of $3,170,000 "in order to complete the construction of the state public roads as provided" in the act of 1908.

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, 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 twentyfive 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 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 of the new fund was appropriated for purposes which need not be stated.

The

It is with the appropriation in the act of 1912 of the fund for use in Baltimore county that this proceeding is concerned. plaintiffs are residents and taxpayers of that County, and they sue not only for themselves but on behalf of all others similarly interested. The bill was filed in the circuit court for Baltimore county, and the defendants are the state roads commission, one of whose members resides in that jurisdiction. It is charged in the bill that the defendants are tion of roads in other counties approximately about to divert and spend in the construc$100,000 of the amount directed by the act of 1912 to be appropriated and used in Baltimore county; the commission claiming that the latter county had received about $100,000 more than its share of the $5,000,000 road loan authorized by 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 by 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 of approximately $100,000 of the $300,000 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, provided for Baltimore county in the act of 1912, any

"from appropriating or expending any por- the fund here in dispute is applicable, it tion of said $300,000 for the purpose of paying for any work heretofore done by the defendants, as roads commission, in Baltimore county or elsewhere or for any other purpose than road building in Baltimore county."

nevertheless refers in terms to suits for the violation of any of the provisions of the subtitle under which it is codified with respect to any road or roads within the county. At the time of the amendment and re-enactment 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 subtitle by chapter 141 of the Acts of 1908.

The defendants questioned by demurrer the jurisdiction of the court and the sufficiency of the bill. The jurisdictional objection was based in part upon the ground that the state roads commission is an agency of the state and a quasi corporation, with its principal office established in Baltimore city, and [2] The term "subtitle," as used in the that it does not carry on any regular busi-provision quoted, may be given its ordinary ness or exercise its franchises in Baltimore application consistently with the purpose county, where the suit was instituted. It is and effect of the road law as a whole, and contended that the residence of one of the we find no occasion, therefore, to restrict members of the commission in Baltimore or qualify its meaning. It is clear that the county, and the fact that the fund in con- present suit relates to an alleged violation troversy was appropriated for road construc- of the provisions of the subtitle in question tion there, cannot bring the case within the in respect to the use of state funds upon judicial cognizance of the circuit court for roads in Baltimore county, and under the that county. The theory of the defendants express terms of the statute the circuit court is that they can be sued as a state commis- for that county is given jurisdiction to ension only at the seat of the state government, tertain the proceeding. 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.

[3] 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 unless 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 [1] By the act of 1910 (chapter 217), which transferred to the state roads commis- Baltimore County, 87 Atl. 413, October Term sion the powers and duties formerly reposed 1912; Schley v. Lee, 106 Md. 403, 67 Atl. 252;, in the state geological and economic survey, Mayor, etc., v. Keyser, 72 Md. 108, 19 Atl. including the co-operation with the counties 706; Baltimore v. Gill, 31 Md. 395; Kelly v. in road improvements undertaken by them on Baltimore, 53 Md. 140. In the case before us their own initiative or at the instance of it is charged that about $100,000 of the funds abutting landowners, it was provided that: appropriated by law for the construction and "The circuit court of any county where the maintenance of roads in Baltimore county is powers conferred upon the state roads com- being illegally diverted by the defendants to mission or its predecessor have been or are similar uses in other counties. The interest about to be exercised shall have original ju- of Baltimore county taxpayers in such a subrisdiction of any cause of action or com-ject-matter is obvious. If this large fund is plaint 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 subtitle 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 amendment to section 45 of the same ar- [4] The argument was mainly directed to ticle of the Code of 1904. While this sec- the question raised by the demurrer as to tion deals particularly with a different class whether the commission, in its use of the

applied upon the roads of the county, the charge upon the county treasury for road maintenance will be reduced to the extent of the mileage thus improved. There is consequently an appreciable relation between the alleged diversion of the fund and the taxation to which the plaintiffs are subject on account of the ordinary road levy of the county, and we can have no hesitation in holding, upon the authorities cited, that the court below had jurisdiction to hear and determine the suit at the plaintiffs' instance.

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about $100,000 to cover expenditures it has already made upon Baltimore county roads in excess of the county's share of the fund appropriated by the earlier act. It being conceded that the amount to which the county was entitled on the basis of its road mileage, out of the $5,000,000 road fund, has been overpaid by the commission, to the extent indicated, in the improvement of roads in the county, the inquiry is whether this inequality must be disregarded, or is properly subject to correction, in the application of the fund last provided. The plaintiffs insist that the direction for the apportionment and prompt use of $300,000 in Baltimore county is entirely inconsistent with the theory that a part of the amount should be available to adjust an overpayment on account of the prior allotment. This contention is unquestionably sound with respect to the half of the fund expressly required to be promptly expended on the Baltimore & Yorktown road; but the act is not equally specific in its terms as to the disposition of the other half of the fund. This is to be merely "apportioned and used promptly in Baltimore county." The question to be determined, therefore, is whether the prompt use of this half of the fund may legitimately include its partial application to the repayment of sums expended upon roads of Baltimore county out of shares of the general road loan to which other counties are entitled.

further observed that the fund now in dispute is part of a loan explicitly stated by the Legislature to be authorized "in order to complete the construction of the state public roads as provided" in the prior act. There is the plainest possible indication, therefore, of a legislative intent that the second fund should simply serve to supplement the first in accomplishing the single purpose of establishing within a limited time a state highway system selected and defined with a general view to an apportionment of its benefits among all the counties upon the basis of public road mileage. This being the manifest design of the act of 1912, there can be no doubt that, so far as the allotments on the mileage basis to the other counties are concerned, the funds appropriated by the act would be applicable to a proper adjustment of their respective accounts, so that a fair distribution in proportion to road mileage should be eventually secured. This was the precise theory of the original statute in declaring that the funds need not be currently expended in the several counties from year to year in the proportions mentioned, but that the ultimate result should show a fair distribution to have been made in pursuance of the designated mode of apportionment. If Baltimore county had been awarded by the act of 1912 only the amount to which its road mileage would have .entitled it, there could be no doubt that the commission, in using the fund so allotted, would be required to take into consideration the payments made out of the original loan in excess of the county's share for the improvement of its roads. The eventual fair distribution in proportion to mileage would obviously not be ac

As already noted, the act of 1912 provides that the fund of $2,625,000, to which it refers, including the $300,000 for Baltimore county, shall 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 $5,000,000" authorized by the act of 1908. The last-men-complished, if it appeared in the final aetioned act contemplated the construction of a counting that one of the counties had receivgeneral system of state roads, according to ed $100,000 more than its intended share of plans to be determined by the commission. the common fund. As the proceeds of the It directed that the commission should reach supplemental loan were distinctly declared to its conclusion as to the selection of the roads be applicable in the same manner and to the to be improved by May 1, 1909, and should on same purpose as the $5,000,000 provided in or before that date file with the county com- the first instance, and as the appropriations missioners of each county, for public inspec- from that loan were made eventually adjusttion, a certified copy of a map of the state able, so as to secure a fair and uniform apshowing plainly the adopted system of main portionment in the indicated ratio to the variroads to be improved under the act. It was ous territorial divisions of the state, the confurther enacted that the general system of clusion is unavoidable that the additional alpublic roads thus provided for should be com-lotments under the act of 1912 were intended pleted by the commission as soon as feasible, to be subject to the same adjustment and but in any event within seven years from July 1, 1908, and that the cost should not exceed $5,000,000, of which not more than $1,000,000 should be spent in any one year. The apportionment to Baltimore county by Reference has been made to the provision for the act of 1912, except as to the half of the the apportionment of these funds among the fund devoted to a designated road, differs various counties on the basis of their exist- from the appropriation for other counties ing road mileage. The law declared that this only in the fact that it exceeds the stated raprovision was not intended to require the ex- tio of distribution. The direction for the penditure of a certain proportion every year prompt use of the specified sum in Baltimore in each county, but that the purpose was to county is simply in accord with the general eventually insure a fair distribution accord-provision that the funds of which it forms a

application in order that the general and consistent theory of the legislation might be gratified.

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