Appeal from Baltimore City Court; Charles W. Heuisler, Judge.

Petition for mandamus by Frank H. Zouck and others, constituting the State Roads Commission, against Hugh A. McMullen, State Comptroller, to require transfer of a sum of money from the general treasury to the credit of the petitioners. Order for transfer of money issued, and respondent appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ Hugh A. McMullen, in pro. per. Albert C. Ritchie, Atty. Gen., for appellees.

PATTISON, J. Acts 1904, c. 225, passed for the improvement of the highways, provided for state aid in the construction of roads within the state and placed the construction of such roads under the supervision and direction of the state geological and economic survey, established under Acts 1896, c. 51. The state, by the act of 1904, was limited in its expenditure to one-half of the estimated cost of the construction of said roads, ascertained by the provisions of said act. Το meet the burden so imposed upon the state the act provided that:

"The sum of two hundred thousand dollars annually, or so much thereof as may be necessary, be and is hereby appropriated, out of any money in the treasury not otherwise appropriated, for the purpose of carrying out the provisions of this act."

under the powers heretofore conferred upon it; and that from and after the passage of this act transferring the powers and duties set forth in this subtitle to the state roads commission, the tinue to carry out and perform all such lawful said state roads commission, may and shall concontracts heretofore entered into as aforesaid before such transfer out of the said sum of two hundred thousand dollars annually appropriated as aforesaid, or so much thereof as may be necessary. The state roads commission is hereby further authorized to continue to contract for such expenditures as the said geological and economic survey commission might have contracted for."

By the act of 1912 (Acts 1912, c. 121) the annual appropriation for state aided roads was increased from $200,000 to $300,000, but in all other respects the act of 1910 remained unchanged.

The fiscal year of the state of Maryland ends on the 30th day of September of each year. In the years 1906, 1907, and 1908 the balance remaining unexpended at the close of each of said years was reverted to the treasury of the state. In each of the succeeding years, however, commencing with the year 1909 and ending with the year 1914, the unexpended balance for each of said years, representing the extent to which such annual appropriations had not been actually withdrawn or paid out, were not reverted to the state treasury. In the year 1909 such unexpended balance was on the 1st day of October carried down to the credit of the geological and economic survey, and on October 1st in each of the succeeding years, to and including the year 1914, such unexpended balwas carried to the credit of the state

In the distribution of the money so appro-ance priated among the counties of the state the roads commission. act provides:

"That no one county of the state shall receive in any year a larger proportion of the total amount appropriated by this act for said year than the proportion which the then existing miles of public road in said county bear to the then existing miles of public road in all of the counties applying as determined by the said commission, unless a balance remains unallotted under the arrangement above prescribed, in which event said balance may be apportioned in the same manner among the counties which have not received the full amount of their applications."

Acts 1908, c. 141, created and established the state roads commission, and Acts 1910, c. 217, transferred "the powers and duties” of the geological and economic survey (conferred upon it under the act of 1904), "together with all accounts, records, contracts, obligations, unexpended balances and all property and things appertaining to the same," to the state roads commission. The act further provides (section 48) that:

At the close of the fiscal year 1915 there remained of said fund not actually paid out by the commission the sum of $200,797.39, but at that time there were outstanding obligations of the commission chargeable to this fund amounting to $220,924.28. These obligations arose from contracts previously made by the commission for the construction of a great number of state aided roads in the different counties of the state.

In some instances the work under these contracts had been completed, and the consideration therefor was at that time due and payable, while in others the work was still unfinished. It seems, however, that at such time no statements had been filed with the comptroller showing any outstanding contracts, or obligations arising thereunder, against said balance, and upon the advice of the Attorney General at that time that all such unexpended balance at the end of the fiscal year reverted to the general treasury unless there were outstanding contracts against the same, and it not appearing from the records of the office that there were such

"The sum of two hundred thousand dollars annually, or so much thereof as may be necessary, is hereby appropriated, out of any money in the treasury not otherwise appropriated, for the purpose of carrying out the provisions of outstanding contracts, the comptroller, now this subtitle, heretofore under the authority of the Governor of the state, reverted the balthe state geological and economic survey, ance of said fund, amounting, as we have

and in so far as proper and lawful contracts

may have been duly entered into and made by said, to the sum of $200,797.39, to the treas

The respondent, the present comptroller, | necessity for the issuance of a writ of manwas thereafter in January, 1916, called upon damus was waived, and the order that was to restore the said sum to the credit of the passed, to the form of which no objection state roads commission, and, although ad- was made, was treated by the parties as an vised by the Attorney General that said sum order for the issuance of a writ. It is from was wrongfully reverted and should be re- that order that this appeal is taken. stored to the credit of the commission, he declined to withdraw so large a sum from the treasury of the state, to which it had been re-aided road fund not actually paid out at the verted by his predecessor, and place it to the commission's credit, without first submitting to a court of competent jurisdiction the question whether he should do so.

The sole question presented is whether the sum of $200,797.39, the amount of the state

close of the fiscal year 1915, and which was at that time reverted to the general treasury of the state, should be withdrawn therefrom and restored to the credit of the state roads commission.

The contention of the respondent, as disclosed by his answer, is that when said sum In Maryland Agricultural College v. Atkinreverted to the general treasury it became son, 102 Md. 557, 62 Atl. 1035, the respondent incorporated with, and a part of, specially the comptroller of the treasury, refused to dedicated funds that had hitherto been en- pay over to the Agricultural College an apcroached upon, and that it could be with-propriation of $5,000, under Acts 1902, c. 625, drawn therefrom only by legislative authori- for the maintenance, repair, and improvety. Under the facts and circumstances of this case and the understanding of the respondent as to his powers and duties in relation thereto, his reluctance to act as requested may very easily be understood, and, feeling as he did, he very naturally and properly asked that the question be submitted to a court of competent jurisdiction for its determination.

As result of the position taken by the comptroller, the state roads commission filed its petition asking for the writ of mandamus requiring him to transfer the aforesaid sum from the general treasury of the state to the credit of the state roads commission.

ments of its buildings, etc., and the sum of $2,000 an unexpended balance of an appropriation, under Acts 1904, c. 557, for the formation and support of a farmers' institute in this state, basing his refusal upon the ground that neither of these sums or any part thereof could be lawfully drawn from the state treasury after the expiration of the fiscal year for which they were appropriated, and, as it appeared that these sums were not paid during the fiscal year for which the appropriation was made, there was no warrant of law by which they could now be paid.

It was admitted that the work contemplated to be done under the act of 1902 had been In its petition the commission alleges, in done, but the appropriation had not been addition to the facts we have stated, that paid. It was also admitted that $2,000 of the there are ample funds in the treasury of the appropriation of $6,000 made by Acts 1904, state from which the said sum may be with- c. 557, remained unpaid, and it was further drawn and placed to the credit of the com-admitted that said sums so appropriated were mission. It further alleges that there was a at the time in the treasury of the state. We cash balance in the general fund to meet ob- there said: ligations as of October 1, 1916, of $447,328.20 which can be used without encroaching upon the dedicated funds to restore to the credit of the state roads commission the said sum of $200,797.39. It also alleges that after a detailed statement of the estimated receipts and disbursements of the state during the present fiscal year, the estimated cash balance, after deducting estimated expenditures during said year, remaining in the treasury for general purposes on October 1, 1917, will be $515,044.29.

"There is no general law which declares that has been appropriated cannot be drawn theremoney not drawn in the fiscal year for which it after.

"It is to be noted that there is no duty imposed by either act upon the Maryland Agriculment of the appropriations within a specified tural College to make application for the paytime, but the authority is given to the comptroller to draw his warrant upon the treasurer cd to the order of the college, and he is directed for the payment of the several sums appropriatto draw his warrant for the first payment during the fiscal years named. This direction, given in express terms in the act, was not followed, and

it is difficult to say how the failure to pay the money in the manner and at the times provided should operate to defeat the plain and evident intent of the Legislature respecting these appropriations."

The respondent answered the petition, and to his answer a general replication was filed. In the record is found an agreed statement of facts in which all of the essential and material allegations of the petition are admitted to be true, and by it all errors in plead-time created a state aided road fund, authoring are waived.

Said Acts 1904, c. 225, which for the first

ized and directed an appropriation of $200,Upon the submission of the case to the 000 annually "or so much thereof as may be court below the learned judge reached the necessary" for the purpose of carrying out the conclusion that the respondent should restore provisions of that statute. The act of 1910 to the credit of the state roads commission which transferred the duties and powers of the said sum of $200,797.39 that was reverted the geological and economic survey to the to the treasury at the end of the fiscal year state roads commission also transferred to

the hands of the geological and economic sur- [statement showing the extent of their outvey, and provided that the contracts made standing obligations at such time, although, and the obligations created thereunder by the to avoid a repetition of the difficulty here pregeological and economic survey should be as-sented, we think that the commission, at or sumed by the commission; and when the appropriation was increased from $200,000 to $300,000 we find the same provision in that act that is found in the original act of 1904, that the amount so appropriated “or so much thereof as may be necessary" shall be expended for the purpose of carrying out the provisions of the act.

near the end of each fiscal year, should, by written communication, inform the comp troller of the status of such fund in respect to the unpaid obligations assumed by the commission properly chargeable to said fund.

The aforesaid sum of $200,797.39 was, as we have said, necessary for the purposes of the statute, and should not have been revertThe intention of the Legislature respecting ed to the general treasury, and it should the appropriation in the case before us is now be restored to the credit of the commismade clear by the language used, and there sion, and to do so it requires no legislative should be no difficulty in deciding the ques-enactment. Whether it was properly or imtion presented. It is clear that the Legisla-properly reverted is simply a question of law. ture intended that the entire amount of the appropriation should be expended, if it were found necessary, to carry out the provisions of the act. Therefore to decide the question here presented we have only to ascertain whether the amount of the appropriation not actually paid out by the commission at the close of the fiscal year 1915 was necessary for the accomplishment of the purposes named in the act.

At the time the said sum of $200,797.39 was reverted to the treasury of the state there were outstanding obligations of the commission, properly chargeable to this fund, amounting to $220,924.28, a part of which was then due and owing, and the balance would become due and payable upon the completion of the work then in progress under said contracts.

It is thus shown that this unexpended balance was absolutely necessary for the purposes for which it was appropriated. The balance of the appropriation not actually paid to the commission at or before the closing of the fiscal year 1915 was not to revert, in so far as it was necessary to meet obligations properly chargeable to the fund appropriated. It appears that there were no statements on file in the office of the comptroller showing that said contracts against the appropriation had at such time been made, and that the commission had created obligations thereunder for the payment of which this balance would be required, but there is no provision of law to which our attention has been called, or of which we have knowledge, requiring a statement of such character to be filed with the comptroller to avoid the result here complained of. As seen above, the unexpended balances for the five years immediately preceding the year 1915 had been carried to the credit of the state roads commission, and it is not shown that it had been the practice to require statements to be filed.

For the reasons above stated, the order appealed from was affirmed by this court in its per curiam order heretofore filed.

(130 Md. 447)

SMITH V. MERRIOTT et al. (No. 38.) (Court of Appeals of Maryland. March 13, 1917.) 1. ASSOCIATIONS

5-MEMBERS-REMOVAL.

Under the constitution of an association de

claring that the Grand Chapter is the supreme governing body of the order invested with exec-. utive, legislative, and judicial powers, that its judicial powers shall extend to the enforcement of discipline upon its own members, and that all governmental powers, whether executive, legisGrand Chapter, are inherent and reserved to it, lative, or judicial not expressly delegated by the such Grand Chapter has power to try a member upon charges preferred against him for irregularities in an office of the association.

[Ed. Note.-For other cases, see Associations, Cent. Dig. §§ 4-6.]

2. ASSOCIATIONS 18-OFFICERS-ELECTION -POWER Of Court.

Where officers of an association have been elected and installed, and are exercising the functions and powers of their respective offices, a former officer possessing a bank book and money admitted to be the property of the association cannot restrain such officers from demanding such property on the ground that the election was invalid, as he would be amply proofficers. tected by the delivery of such property to such

[Ed. Note.-For other cases, see Associations, Cent. Dig. § 29.] 3. AsSOCIATIONS

10-MEMBERS-REMOVAL

-INJUNCTION. constitution to try members on charges preferWhere an association is given power by its red against them, courts will not restrain such trial where there is no showing of bad faith, malice, or manifest unfairness.

[Ed. Note.-For other cases, see Associations, Cent. Dig. §§ 10-12.]

Appeal from Circuit Court No. 2 of Baltimore City; Carroll T. Bond, Judge. "To be officially reported."

Bill by Charles R. Smith against Richard B. Merriott and others. Decree for defendants, and plaintiff appeals. Affirmed.

The clearly expressed intention of the Legislature that the entire appropriation should be expended, if found necessary, should not Argued before BOYD, C. J., and BRIStherefore be defeated because of the mere COE, BURKE, THOMAS, PATTISON, URomission or failure on the part of the commis- NER, STOCKBRIDGE, and CONSTABLE, sion to file at the close of the fiscal year a JJ.

Augustus C. Binswanger, of Baltimore | said Grand Chapter, and that your orator (Warner T. McGuinn, of Baltimore, on the has no other properties or moneys belonging brief), for appellant. W. Ashbie Hawkins, to said Grand Chapter, or any books, papers, of Baltimore (Geo. W. F. McMechen, of Bal-or instruments of writing whatsoever; that timore, on the brief), for appellees. your orator has always stood ready and willing to deliver the said sum of $50, and said savings bank book to the proper and BURKE, J. Charles R. Smith, the appel- lawful representative and officials of said lant, is a member of Hiram Holy Royal Grand Chapter, and he is now ready and Arch Grand Chapter of Free and Accepted willing, upon the determination by this court Masons. It is an association composed of of such proper authority or official to receive subordinate bodies called chapters, and its said funds and bank book, to surrender and membership is made up exclusively of color-deliver the same over, but that your orator ed persons known as Royal Arch Masons. has refused and now does refuse to deliver It will be referred to in this opinion as the Grand Chapter or Grand Lodge. It is supreme in its authority over its members and over the members of subordinate chapters. It has a constitution and by-laws for its government.

and it is declared by the constitution to be quired into in a suit in equity instituted to reinvested with executive, legislative, and judi- strain them from exercising the functions of cial powers. The constitution declares that in their election.' To the same effect are 17 their offices upon the ground of the irregularity the exercise of these powers and privileges, Ency. of Laws, 52; Johnston v. Jones, 23 N. as defined in the constitution and general J. Eq. 216; Mosely v. Alston, 1 Phil. Ch. 790; regulations, are final and conclusive upon all Hughes v. Parker, 20 N. H. 58. In High on Inparties concerned until altered or reversed, court of equity at the suit of stockholders of a junctions (1st Ed.) § 774, it is said: 'Nor will a and it is expressly declared that its judicial corporation restrain its officers from the expowers shall extend to "the enforcement of ercise of their functions, since such restraint discipline upon its own members and upon in- would be equivalent to removal from office, and dividual Royal Arch Masons," and it is fur- See, also, third edition of the same work, secover such a subject equity has no jurisdiction.' ther declared that all governmental powers, tion 1235, where the subject is more fully diswhether executive, legislative, or judicial not cussed. None of the Maryland cases cited go expressly delegated by the Grand Chapter, It is true they have sustained the right of stockto the extent we are asked to go in this case. are inherent and reserved to it. The posses- holders to enjoin proposed illegal or fraudulent sion of such powers are essential to the good methods in the conduct of election of officers, government and orderly conduct of the af- but none of them have decided or intimated that fairs of the order. Without them it would this power can be used after an election, although irregular or even illegal, to remove those be powerless to protect itself against the acts declared elected, or, what is equivalent to that, or rid itself of an unworthy or discreditable to prohibit them from exercising the powers member. Under the provisions of the consti- vested in them by virtue of such election. tution of the Grand Chapter the jurisdiction acting, it would necessarily, for the time being, And if these officers be prohibited from of that body to inquire into and determine if not permanently, stop the regular business of the charges preferred against the appellant the corporation; for if they cannot act there is, we think, clear, and the general rule is are no others that can, and unless these offices are filled the affairs of the association cannot well established in this state and elsewhere be conducted, as contemplated by its constituthat with trials and decisions of such associ- tion and by-laws. The court has no power to ations as the one before us, with respect to appoint officers in their stead, and to prohibit discipline and misconduct of members, the these from acting would probably result in the ruin of the association, which might be disascourts will not interfere. Anacosta Tribe of trous to the members, especially the older and Red Men v. Murbach, 13 Md. 91, 71 Am. Dec. delicate ones. The supreme treasurer could nei625; Osceola Tribe No. 11, I. O. R. M., v. ther receive nor pay out money, and the supreme Schmidt, Administrator, 57 Md. 105; Don-commander could not even call a special meeting, as provided by the constitution, nor could he discharge any of the other important duties devolved on him, and so with the other officers."

nelly v. Supreme Council, 106 Md. 425, 67 Atl. 276, 124 Am. St. Rep. 499; United Grand Lodge v. Lee, 128 Md. 42, 96 Atl. 872. As stated by Andrews, C. J., in Connelly v. Masonic Mutual Benefit Association, 58 Conn. 552, 20 Atl. 671, 9 L. R. A. 428, 18 Am. St. Rep. 296:

"If it is found that the proceeding was had fairly, in good faith and pursuant to its own laws, and that there was nothing in it in violation of any law of the land, then the sentence is conclusive like that of a judicial tribunal."

[3] The Grand Chapter has not tried and determined the charges against the appellant. What it may do as a result of its investigation we do not know and cannot anticipate. He is entitled to a fair and impartial trial, and it is to be presumed that the chapter will give him such a trial. But if the trial should be characterized by bad faith, malice, or manifest unfairness, it [2] The defendants have been elected and would then become a subject of judicial reinstalled as the officers of the Grand Chap-view by the court, which would restore any ter, and are exercising the functions and powers of their respective offices. The bank book and money in the possession of the appellant is admitted to be the property of the Grand Chapter and he should turn it over. He would incur no responsibility, and would be amply protected by the delivery of the bank book and the money to the acting Grand Treasurer of the Grand Lodge. This court has no power under the facts disclosed by

the record to determine in this suit the validity of the defendants' election. In Supreme Lodge v. Simering, 88 Md. 276, 40 Atl. 723, 41 L. R. A. 720, 71 Am. St. Rep. 409, Judge Boyd said:

rights of the appellant of which he had been wrongfully deprived. But there are no facts alleged which would justify the court of equity in arresting the exercise of the power of the Grand Chapter to proceed with the trial. The appeal before us was taken from the order of the lower court, which sustained a demurrer and dismissed the bill. It follows from the views expressed that the order was properly passed, and that it should be af

firmed.

Order affirmed, with costs.

(130 Md. 488) HARRIS v. COMMISSIONERS OF ALLEGANY COUNTY. (No. 32.) (Court of Appeals of Maryland. April 4, 1917.) CONSTITUTIONAL LAW 54-SEPARATION OF POWERS-EXERCISE OF JUDICIAL POWER BY LEGISLATURE-STATUTE.

"In 1 Thompson on Corporations, § 754, it is said: 'A court of equity has no authority to determine the validity of an election of the officers of a private corporation and pronounce judgment of a motion. The title of directors who are in office under color of an election and who Acts 1916, c. 466, authorizing and directing are, at most, irregularly chosen, cannot be in- the county commissioners of Allegany county