Burns v. Mayor of Baltimore

48 Md. 198, 1878 Md. LEXIS 96

• Court: Court of Appeals of Maryland
• Decided: March 8, 1878
• Status: Published

Opinion

Miller, J.,

delivered the opinion of the Court.

The Act of 1874, ch. 218, has made important changes in the-laws relating to streets in the City of Baltimore, and in the powers conferred upon the city authorities respecting them. Without citing the language of the Act in full, we shall state briefly what these changes are, so far as they apply to the present case, reversing the order in which they appear in the statute.

1st. The Mayor and City Council are vested with power to provide by “ generad ordinance,” for the grading, paving, curbing, or for the regrading, repaving and recurbing of any street or part of a street in that city, “ without the passage of a special ordinance in the particular- case,” whenever the owners of a majority of front feet of property binding on such street, or part of a street shall apply for the same, upon terms and conditions to he prescribed in such general ordinance, and for the assessment of the cost of the work, in whole or in part, pro rata, upon all the property binding upon such street or part thereof. There is no difficulty in understanding this provision. It retains that feature of antecedent laws which required applications of adjacent property owners, hut dispenses with the necessity of a special ordinance on each application. To put in motion the power thus delegated there must still be an application by the owners who think their property will be benefited by the improvement, but the mode of making the application and all the proceedings thereon by the city officials, including the assessment of the cost of the work in whole or in part, pro rata, upon the adjacent property, may be prescribed by one general ordinance applicable to all such cases. That is the effect of this part of the statute, and Ordinance Ho. 44, of 1874, containing general provisions on this subject was passed in pursuance thereof.

2nd. The Mayor and City Council are also vested with full power aud authority to provide “by ordinance” for the grading, paving and curbing, or for the regrading, repaving and recurbing of any street or part of a street in the city, and also for assessing the cost of “ any such work,” in whole or in part, prorata, upon the property binding on such street or part thereof. It is important to the case before us to ascertain and determine the construction and effect of this clause of the statute, and that is'the question we shall now consider.

Read in connection with the other provision, it is clear the intent of this was to give to the Mayor and City Council power to pass ordinances in special cases for the purposes indicated, without any application hy property owners. In thus dispensing with such applications in particular cases, it differs from antecedent legislation on this subject, (which the Act repeals,) hut it is' too plain for argument that this was the purpose of the law-makers. But the more important question then arises, does this law grant to the City authorities power to make improvements of this character for the public convenience generally, or for the benefit of the whole Oity without any motive or purpose of special benefit to property in the immediate locality, and to assess the cost of the work upon the owners of such property? If it does, then the grave question is presented, whether such an enactment would be within the scope of legislative power. No decision of any Court has yet gone to the extent of sustaining such a law, and there are many strong ones to the contrary. But in this case, we are not confronted with that question. Eor assuming the power to exist, it would he so oppressive and unjust to exert it, that we cannot impute to the Legislature the intent to do so, unless that intent has been manifested by clear and unambiguous language. In the first case in which that clause of the City’s Charter, (Act of 1797, ch. 54, sec. 2,) which gave the power “to tax any particular district for paving the streets, lanes, or alleys therein, or for sinking wells or erecting pumps, which may appear for the benefit of such particular part or district,” came before this Court for construction, it was contended that .the word “which” related to wells and pumps only, but the Court refused so to restrict the application of this term, and said: “It is difficult to suppose that the Legislature meant to authorize the imposition of a special tax on any particular part of the City, for any paving which should not appear to be for the benefit of such part. Such a power might he attended with evil consequences, and in many cases work very great injustice. Where a street is directed to be paved for the benefit of a particular part or district of the city, it is perhaps proper that such part or district should be taxed for the purpose ; but where the paving is for the general benefit, and not of the immediate district in which the street lies, it ought to be paid for out of the general fund; and there would be much injustice in imposing a special tax on the particular district for that object, which could not have been the intention of the Legislature. And where a law is of doubtful construction, that interpretation should be given it which is pregnant with the least mischief.” Moore & Johnson’s Case, 6 H. & J., 375. And this construction was re-affirmed in Hughes’ Case, 1 G. & J., 492, where the Court said cc a different construction would be at war with the intention of the Legislature, as it never could have been contemplated to give to the corporation the power to tax any particular part or district of the city for any paving which was for the general benefit, and not for the benefit of the immediate part or district taxed.” The theory and foundation of all previous legislation imposing these special assessments, for improvements of this character upon the owners of adjacent property, is that the improvement is for their benefit, and that they derive such advantage from it, in the enhanced value of their property, over and above what is conferred upon the public at large, that it is just they should be specially assessed therefor, and on this ground the validity of such laws has been sustained by the Courts. We find nothing in the terms of the statute now under consideration, indicating a purpose to abandon this just and reasonable basis of such legislation. It differs from former laws, in dispensing with the application of the property owners, and leaves it to the Mayor and City Council to decide in special cases, whether the proposed paving or repaving will be for the benefit of such owners. It allows the whole or a part of the costs, as the city authorities may determine, to be assessed upon the property owners, but the fact that a part may be assessed on the owners, and the rest upon the public, cannot alter the rule of construction to be applied to the law. An adjacent owner who is assessed for any part of such cost, over and above what he would have to pay as one of the public, is specially assessed, and is so assessed upon the assumption, that his property has been benefited to the extent of such special assessment. This, in our opinion, is the true construction of this legislative grant of power, and it follows that any ordinance passed for the purpose of carrying it into effect must conform to its provisions. In other words, an ordinance providing for a special case of paving or repaving a street or any part of a street, without the application of the property owners, and assessing the cost, in whole or in part, on the adjacent property, must be passed with the motive and for the purpose of conferring a special benefit upon such property, or else it is nugatory and void. But how is the Court to determine whether a particular ordinance on this subject is thus within the granted power or not? The authorities already cited furnish a complete answer to this question. In an ordinance providing for such paving and the imposition of such special tax, it is not necessary that it should he expressly stated to be for the benefit of the particular district, for if nothing appears to the contrary, such an exercise of the special taxing power will be taken to have been in pursuance of the authority given by the charter; it will be presumed that the corporation did not exceed its powers, but imposed the tax for the purpose only for which the charter authorizes it to be imposed, and that the paving appeared to the City Council* to be for the benefit of the particular district; but where an ordinance provides for the paving of a street in a particular district, and the imposition of a special tax for that purpose on such district, which paving appears by the ordinance to be for the general benefit of the Gity, and not for the benefit of the particular district, such an ordinance is not in pursuance of the authority conferred hy the charter, and is void. 1 G. & J., 492, 493; 6 H. & J., 381, 382.

Aided and guided hy these principles and rules of construction, we have no difficulty in determining the question as to the validity of Ordinance No. 79, of 1874, the assessment under which on his property the appellant resists. It is very brief, and is entitled “An Ordinance to provide for regrading, repaving and recurbing Light street, between Pratt and Lee streets.” Its preamble recites “ Whereas the public convenience requires, that Light street between Pratt and Lee streets, should be graded, paved and curbed, therefore” it is enacted “That the City Commissioner is hereby authorized and directed to have all that part of Light street aforesaid regraded, repaved and recurbed with Belgian pavement, in pursuance of the Act of Assembly, ch. 218, of 2nd of April, 1874, and according to the provisions of Ordinance No. 44, approved June 4th, 1874, providing for the grading, gravelling, shelling, curbing and paving of streets, lanes or alleys of the City of Baltimore, so far as the same may be applicable.” To this ordinance the reasoning of the Court in Moore and Johnson’s Case (6 H. & J., 382,) is directly applicable. In the enacting clause alone not a word is to be found expressive of the opinion of the makers that the repaving directed to be done, would be, or appeared to them to be, for the benefit of the owners of the adjacant property. It simply directs a certain part of a particular street to be repaved, and refers for the mode of procedure and the doing of the work, to an antecedent general ordinance, under which, among other provisions relating to such cases, it is provided that one-third of the whole cost shall be paid by the City, and two-thirds by the owners of the property binding on the street or part of it so directed to be repaved. Looking to the enacting part of the ordinance alone, it is matter of conjecture that the work appeared to the corporation to be for the benefit of such owners, and in the absence of anything else on the subject, the presumption would he that it did so appear, and that the corporate authorities so adjudged and therefore did not exceed their powers. But in .determining this question every part of the ordinance must he taken into consideration, and when we look to the preamble, the intention of the makers is clearly disclosed, and conjecture and presumption are at once out of the way. We there find it plainly and explicitly declared that in the judgment of the Mayor and City Council the improvement was required for “the public convenience,” and that their motive in paving it was to promote that object. The repaving with more durable material of a part of a particular street, leading from one business centre of a large city to another, over which travel with heavily loaded vehicles is constant, may well he a matter of general concern, hut where the proper authorities have expressly declared they so consider it, there is nothing left to construction. Hence it clearly appears to us, that this is an ordinance intended not for the benefit of the property owners, who are specially taxed under it, but for the benefit and convenience of the public at large, the whole city, and it is therefore unauthorized and void so far as it attempts to enforce such special assessments. Placing the invalidity of the ordinance in this respect, upon this plain ground, it becomes unnecessary to decide whether its validity is open to question for any of the other reasons relied on in argument by the appellant’s counsel, and we rest the reversal of the pro forma, judgment appealed from upon this ground alone.

(Decided 8th March, 1878.)

Judgment reversed.