Miller, J.,
delivered the opinion of the Court.
Much importance has very properly been attributed to the questions presented by this appeal, and they have been twice argued. They not only involve important legal principles, but property owners in the City of Baltimore, and the city itself, are deeply interested in their [25]*25solution; for it is conceded that the collection or non-collection of taxes to a very large amount, levied under Ordinances of the same character and for like improvements already made, depends upon the decision of this case.
The appeal is from a pro forma decree of the Circuit Court, annulling the assessments upon abutting property, for a portion of the cost of repaving part of Pratt street, and perpetually enjoining the collection of the same. The main questions are the same that were discussed in the case of The Mayor and C. C. of Balt. vs. Scharf, et al., 54 Md., 499. After the opinion in that case, declaring the Ordinance and the assessments under it to be void, was filed, a motion for a re-hearing was rpade at the same term and granted. The argument in this case has therefore been received and taken as a re-argument of that. Upon this argument, and further consideration of the subject, a majority of the Judges participating in this decision, have reached a different conclusion from that expressed in the former opinion, and we shall now proceed to state the grounds upon which we hold the assessments to be valid.
By Ordinance Ho. 68, approved June 26th, 1878, (under which the assessments in the present case were made,) entitled “An Ordinance to provide for the repaving of Pratt street, between Jones’ Palls and Howard street,” it was enacted and ordained by the Mayor and City Council of Baltimore, “ that the City Commissioner he and he is hereby authorized and directed to have Pratt street, between Jones’ Palls and Howard street repaved, in pursuance of the Act of the General Assembly of Maryland, chapter 218, of April, 1874, and according to the provisions of Ordinance Ho. 44, of the Mayor and ’City Council of Baltimore, approved the 4th of June, 1874, providing for the grading, gravelling, shelling, curbing and paving of the streets, lanes and alleys of the ’City of Baltimore, so far as the same may be applicable; [26]*26said repaving to be done with Camp’s process of Belgian block pavement; the expense thereof to be paid in the following manner, that is to say, one-third by the Mayor and City Council of Baltimore, and two-thirds by the oioners of property binding on said street; and the same shall be laid with Maryland Granite, provided it can be purchased at as low a price as that furnished by parties outside of' the State; and provided the cost of said pavement shall not exceed $2.85 per square yard; the city’s portion of the expense to be provided for in the levy of 1879.”
This special Ordinance, and the general Ordinance, No. 44 of 1874, therein referred to, were hoth passed in pursuance of the powers granted by the Act of 1874, ch. 218. That Act made several important changes in the system of laws which had previously existed upon this subject. It gave the Mayor and City Council power, in the first place, to provide by “ general Ordinance,” for paving or repaving any street, or any part thereof, “ 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 thereof, shall apply for the same, upon terms and conditions to be prescribed in such general Ordinance, and for the assessment in any such case, of the cost of such work, in whole or in part, pro rata upon all the property binding upon such street or part thereof, and for the collection of such assessments as other city taxes are collected ; and, in the second place, it gave them in like terms full power and authority, without any application of owners, to provide by special Ordinance for paving or repaving any street, or part of a street, and for assessing the cost of the work, in whole or in part, pro rata upon the property binding on such street or part thereof, and for collecting such assessments as other city taxes are collected. The construction of this, statute was determined, and its validity sustained, by the decision of this Court in Burns’ Case, 48 Md., 198. It [27]*27was there decided it was not the purpose of this law to grant power to pass special Ordinances, making improvements of this character for the public convenience generally, without any motive or purpose of special benefit to property in the immediate locality, and then to assess the cost of the work upon the owners of such property; and as the Ordinance in that case, showed by its preamble, that in the judgment of the Mayor and City Council, the improvement was required by, and that their motive in passing it, was to promote, “ Hie public convenience,” it was declared void, so far as it attempted to enforce special assessments upon the owners of adjacent property. But it was also there held, in accordance with previous adjudications of this Court, that if no such expression had been found on the face of the Ordinance, the presumption would have been that in the judgment of those who passed it, the paving directed to be done, would be for the benefit of the particular district, and in that event this presumption would have been conclusive, and the Ordinance free from objection on that ground. “ The legality,” say the Court in Hughes’ Case, 1 G. & J., 492, “of levying the tax, does not depend upon whether the paving does or does not in fact benefit the particular district that is taxed, but upon the object, the motive of the corporation in causing the paving to be done. And in .an Ordinance providing for such paving, and the imposition of such a special tax, it is not necessary that it should be expressly stated to be for the benefit of the particular district; but 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.” To the same effect are the decisions [28]*28in Moore & Johnson’s Case, 6 H. & J., 375, and Howard’s tJase, Ibid, 383, where the power of taxing particular districts for local benefits was first considered hy the ■Courts of Maryland. It follows from these decisions, that the question whether the improvement will benefit the particular district, is left to the judgment of the Mayor and City Council, and their determination in the premises is final and conclusive. The law has provided ■ no appeal from that determination, and the Courts have no power to review it at the instance of property owners who are specially taxed. Whether some mode of review ought to he provided, is a matter for the Legislature alone to consider. The Courts, as the law now stands, can determine simply the naked question of power, and as to this, the validity of special assessments, founded upon the theory of special benefits, has been so often and uniformly ■sustained hy the Courts of this and other States, as to be no longer an open question.
Free access — add to your briefcase to read the full text and ask questions with AI
Miller, J.,
delivered the opinion of the Court.
Much importance has very properly been attributed to the questions presented by this appeal, and they have been twice argued. They not only involve important legal principles, but property owners in the City of Baltimore, and the city itself, are deeply interested in their [25]*25solution; for it is conceded that the collection or non-collection of taxes to a very large amount, levied under Ordinances of the same character and for like improvements already made, depends upon the decision of this case.
The appeal is from a pro forma decree of the Circuit Court, annulling the assessments upon abutting property, for a portion of the cost of repaving part of Pratt street, and perpetually enjoining the collection of the same. The main questions are the same that were discussed in the case of The Mayor and C. C. of Balt. vs. Scharf, et al., 54 Md., 499. After the opinion in that case, declaring the Ordinance and the assessments under it to be void, was filed, a motion for a re-hearing was rpade at the same term and granted. The argument in this case has therefore been received and taken as a re-argument of that. Upon this argument, and further consideration of the subject, a majority of the Judges participating in this decision, have reached a different conclusion from that expressed in the former opinion, and we shall now proceed to state the grounds upon which we hold the assessments to be valid.
By Ordinance Ho. 68, approved June 26th, 1878, (under which the assessments in the present case were made,) entitled “An Ordinance to provide for the repaving of Pratt street, between Jones’ Palls and Howard street,” it was enacted and ordained by the Mayor and City Council of Baltimore, “ that the City Commissioner he and he is hereby authorized and directed to have Pratt street, between Jones’ Palls and Howard street repaved, in pursuance of the Act of the General Assembly of Maryland, chapter 218, of April, 1874, and according to the provisions of Ordinance Ho. 44, of the Mayor and ’City Council of Baltimore, approved the 4th of June, 1874, providing for the grading, gravelling, shelling, curbing and paving of the streets, lanes and alleys of the ’City of Baltimore, so far as the same may be applicable; [26]*26said repaving to be done with Camp’s process of Belgian block pavement; the expense thereof to be paid in the following manner, that is to say, one-third by the Mayor and City Council of Baltimore, and two-thirds by the oioners of property binding on said street; and the same shall be laid with Maryland Granite, provided it can be purchased at as low a price as that furnished by parties outside of' the State; and provided the cost of said pavement shall not exceed $2.85 per square yard; the city’s portion of the expense to be provided for in the levy of 1879.”
This special Ordinance, and the general Ordinance, No. 44 of 1874, therein referred to, were hoth passed in pursuance of the powers granted by the Act of 1874, ch. 218. That Act made several important changes in the system of laws which had previously existed upon this subject. It gave the Mayor and City Council power, in the first place, to provide by “ general Ordinance,” for paving or repaving any street, or any part thereof, “ 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 thereof, shall apply for the same, upon terms and conditions to be prescribed in such general Ordinance, and for the assessment in any such case, of the cost of such work, in whole or in part, pro rata upon all the property binding upon such street or part thereof, and for the collection of such assessments as other city taxes are collected ; and, in the second place, it gave them in like terms full power and authority, without any application of owners, to provide by special Ordinance for paving or repaving any street, or part of a street, and for assessing the cost of the work, in whole or in part, pro rata upon the property binding on such street or part thereof, and for collecting such assessments as other city taxes are collected. The construction of this, statute was determined, and its validity sustained, by the decision of this Court in Burns’ Case, 48 Md., 198. It [27]*27was there decided it was not the purpose of this law to grant power to pass special Ordinances, making improvements of this character for the public convenience generally, without any motive or purpose of special benefit to property in the immediate locality, and then to assess the cost of the work upon the owners of such property; and as the Ordinance in that case, showed by its preamble, that in the judgment of the Mayor and City Council, the improvement was required by, and that their motive in passing it, was to promote, “ Hie public convenience,” it was declared void, so far as it attempted to enforce special assessments upon the owners of adjacent property. But it was also there held, in accordance with previous adjudications of this Court, that if no such expression had been found on the face of the Ordinance, the presumption would have been that in the judgment of those who passed it, the paving directed to be done, would be for the benefit of the particular district, and in that event this presumption would have been conclusive, and the Ordinance free from objection on that ground. “ The legality,” say the Court in Hughes’ Case, 1 G. & J., 492, “of levying the tax, does not depend upon whether the paving does or does not in fact benefit the particular district that is taxed, but upon the object, the motive of the corporation in causing the paving to be done. And in .an Ordinance providing for such paving, and the imposition of such a special tax, it is not necessary that it should be expressly stated to be for the benefit of the particular district; but 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.” To the same effect are the decisions [28]*28in Moore & Johnson’s Case, 6 H. & J., 375, and Howard’s tJase, Ibid, 383, where the power of taxing particular districts for local benefits was first considered hy the ■Courts of Maryland. It follows from these decisions, that the question whether the improvement will benefit the particular district, is left to the judgment of the Mayor and City Council, and their determination in the premises is final and conclusive. The law has provided ■ no appeal from that determination, and the Courts have no power to review it at the instance of property owners who are specially taxed. Whether some mode of review ought to he provided, is a matter for the Legislature alone to consider. The Courts, as the law now stands, can determine simply the naked question of power, and as to this, the validity of special assessments, founded upon the theory of special benefits, has been so often and uniformly ■sustained hy the Courts of this and other States, as to be no longer an open question. There is nothing upon the face of the Ordinance now before us, indicating that those who passed it, judged that the improvement was for the public convenience exclusively, and not for the benefit of the particular district. It provides for special assessments, and the presumption is, that they determined that those who were specially assessed would he specially benefited. Its validity therefore cannot be assailed in the Courts, upon the ground that the improvement was in fact for the benefit of the public at large, and conferred no special benefit upon the owners of adjacent property. Such is undoubtedly the general rule, hut some Courts have held, and perhaps justly, that a local assessment may so far transcend the limits of equality and reason, that its execution would cease to be a tax, or contribution to a common burden, and become extortion and confiscation. Gooley on Taxation, 428, note 3. We do not mean to say a case may not ^.rise of such abuse of this power hy the legislative body, as to make it “ the duty of the Court to protect the citi[29]*29zen from robbery under color of a better name,” but it must be a clear case of such abuse, to justify the interference of the Court, and plainly no such case has been made by the present complainants in their bill, nor established by the proof in this record.
But it is said no notice was given to the property owners of the purpose to enact this Ordinance, nor is any provision made by the Ordinance itself, giving notice of the proceedings under it, and affording those to be affected by it, an opportunity of being heard before the charges are fully established against them; and this, it is argued, is taking their property without due process of law, and in violation of their constitutional rights. It is conceded the Act of Assembly requires no such notice, and, in our opinion, this objection is founded upon a misapprehension of the nature of the power here granted and exercised. This is not an Ordinance to open and condemn a street or highway, where private property is taken for public use, by the right of eminent domain, but an Ordinance imposing a’tax or assessment for the repaving of' a street already opened and condemned. That the imposition of such a tax or assessment, upon the owners of adjacent property, is an exercise of the taxing power, and not of the right of eminent domain, has been so frequently decided, not only by this Court, but by the Courts of other States, that the controversy which may once have existed upon the subject, must be regarded as closed. Greenmount Cemetery Case, 7 Md., 517; Cooley on Taxation, 430; 2 Dillon on Mun. Corp., sec. 596. What is said by Judge Cooley on pages 265 and 266, of his valuable book on Taxation, as to the importance to persons assessed, that they should have some opportunity to be heard before the charge is fully established against them, has-reference to general assessment laws, under which the property of the citizens of the State is assessed or valued for the purpose, and as the basis, of taxation generally. [30]*30In all • the States, and certainly in Maryland, provision has always been made in such laws, for a hearing and for a review of the action of the assessors or valuers, before a hoard of review and on appeal to the Courts. But when the valuation has been thus settled, the rate and amount to he raised by taxation, as well as the necessity and propriety of the particular tax, are matters left entirely to the discretion of the Legislature. To hold that notice to the tax payers, is essential to the validity of a law imposing a tax upon the basis of such valuation, ■and that the Courts can intervene and set it aside, and ■stay the collection of the tax, because no such notice was given or provided, would he as much an anomaly in jurisprudence as in legislation. In this part of his work, the learned author was not considering special assessments, which are hut taxes; for local improvements, and the ob■servations there made, do not, in our judgment, apply to such cases. A careful examination of the case of Stuart vs. Palmer, 14 N. Y., 183, and the statutes under which that case arose, has convinced us that it is materially different from this. Much of the opinion in that case •applies with great force to statutes and proceedings under which property is taken by the right of eminent domain, hut we cannot accept what is there said as conclusive of the question of notice now before us in this case. Much more to the point, is the decision of the same Court in the Matter of Trustees of Pub. School, 31 N. Y., 514, in which the opinion was delivered by Chief Justice Denio, where it was held, that raising money for a local improvement, is an exercise of • the taxing power inherent in the Legislature ; that this power of taxation implies a power to •apportion the tax territorially, as the Legislature may see fit, and that the constitutional inhibition against depriving a person of his property without due process of law, •and forbidding private property from being taken for public use, without just compensation, has no application to [31]*31the case; that in executing the taxing power in such cases, the Legislature provides such agencies and safeguards against surprise, mistake or injustice, as is thought fit, and while it is manifestly proper that the tax payers should have notice of the imposition proposed to he laid upon them, and an opportunity for making suggestions and explanations to the proper administrative hoard or officer, yet, as there is no constitutional provision bearing on the subject, it is for the Legislature to determine and prescribe in every case what shall be sufficient. We hold it then to be clear, both upon reason and authority, that provisions for notice, or giving the right of hearing, or •an appeal to the Courts and a jury trial, however wise and proper they may be in point of policy, are not essential to a valid exercise of this branch of the taxing power. In the present case, no such provisions were required by the Act of Assembly, nor embodied in the Ordinance, and these complainants were left to their right to petition the Mayor and City Council against its passage, if they ■deemed it prejudicial to their interests, and to such hearing before the committee having the matter in charge, as is usually accorded by legislative bodies. If they failed to avail themselves of this privilege, or were unsuccessful in their efforts, the Courts cannot interfere, for the power to determine when a special assessment shall he made, on what basis it shall he apportioned, over what district it shall extend, and whether the particular improvement will confer a benefit upon property in the immediate locality beyond that which will accrue therefrom to property more remote, or the public generally, is a power confided to the legislative department, to be exercised, subject to such provisions, and under such restrictions only as the law makers may see fit, in each case, to prescribe. With the wisdom or unwisdom of such assessments when ordered in cases in which they are admissible •at all, the Courts have no concern, unless (according to [32]*32some authorities,) there is plainly and manifestly such an abuse of power, as takes the case beyond the just limits of legislative discretion. Cooley on Taxation, 429. The record before us discloses no such abuse of power, and this objection to the validity of the Ordinance cannot prevail.
But in executing the Ordinance the City Commissioner proceeded to assess the two-thirds of the cost upon the adjacent property according to frontage, and it is contended that this front foot rule was repealed by the Act of 1874, is not contained in, or re-enacted by the Ordinance, and has now no legal existence; and the assessments according to that rule, were, therefore, made without lawful authority. It is conceded, on all sides, to he the province of the Legislature to prescribe, in such cases, how the apportionment shall be ■ made, and this may he either by the front foot, by the area of the fronting lots, or by their value, including or excluding the buildings upon them. Occasional hardships may result from the adoption of either mode, hut the authorities are united in the conclusion that either may lawfully be made the basis of' apportionment. In street improvements, especially such as paving and repaving, the frontage rule has been very generally adopted as the most practicable and reasonable measure of probable benefits, and, certainly it cannot with propriety he denounced as inherently unreasonable or unjust. In speaking of this rule, Judge Cooley observes, that “ such a measure of apportionment seems at first blush to he perfectly arbitrary, and likely to operate in some cases with great injustice, hut it cannot be denied that in the case of some improvements, frontage is a very reasonable measure of benefits, much more just than value would be, and perhaps approaching equality, as nearly as any estimate of benefits made by the judgment of men.” Cooley on Taxation, 451. In Baltimore the rule has prevailed, been acted upon, and acquiesced in without ques-[33]*33lion or complaint, from the foundation of the city to the present time, but not always under an express provision of an Act of the G-eneral Assembly to that effect. Prior to the incorporation of the city, taxes were imposed upon the inhabitants of the town, directly by the Legislature, ■and by the Act of 1782, ch. 17, among other taxes for paving, cleansing, and keeping the streets in repair, a tax •of twelve shillings and six pence, was levied “ on every front foot of improved and unimproved lots, in those parts •of the streets fixed on to be paved, or that may have been -already paved by the Special Commissioners.” Afterwards, upon representation by the Commissioners that this tax ■operated unequally and oppressively, because one and the same rate was fixed “for streets of different widths,” the 0 Legislature, by the Act of 1791, ch. 59, changed it as ■desired, and prescribed different rates per front foot, according to the width of the street. "When the city was incorporated by the Act of 1796, ch. 68, the system of direct taxation by the Legislature ceased, and power was ■conferred upon the corporation et to lay and collect taxes not exceeding two dollars in the hundred pounds in any one year,” and in the following year, by the Act of 1797, ch. 54, “full power and authority,” was given to the corporation “ to enact and pass all Ordinances necessary for paving and keeping in repair the streets, lanes and alleys of. the city, and to tax any particular part or district of the city for paving the streets, lanes and alleys therein, which may appear for the benefit of such particular part •or district.” Neither this, nor the preceding Act, made any reference to the front foot rule, but under the broad power contained in the last Act, numerous paving Ordinances were passed, and in all cases, so far as we are ■ aware, this rule of assessment was adopted, and without dissent on the part of the property owners so taxed. The Act of 1817, ch. 148, sec. 18, has been referred to by the ■appellees’ counsel, as prescribing the rule, but that sec[34]*34tion simply provides tliat no nnpaved street shall he paved “ without the assent in writing of the proprietors, of a majority of the ground binding and fronting on such street or the part thereof to he paved,” and if this language is sufficient to prescribe the front foot rule, then similar terms in the Act of 1874 must have the same effect. The. Act of 1832, ch. 57, does not, in our judgment, apply to public streets. The Act of 1833, ch. 40, clearly prescribes the rule, hut it deals solely with repaving. All antecedent laws on the subject were repealed by the adoption of the Local Code in 1860, and in that we-find no provision applying the rule to cases of original paving. Sections 845 and 847 of Article 4 are derived from the Act of 1833, and refer only to repaving. After-the Code, the Act of 1870, ch. 282, (which was repealed by the Act of 1874,) simply declared that the owners of property on the street shall he ' assessed “ their proportional part of the expenses ” for the paving or repaving. In short we have found no statute from the incorporation of the city in 1796 to the present, in which with reference-to the paving of unpaved public streets, this rule has been prescribed in express terms, and if its adoption could he-made out by implication, the language of the Act of 1874 is quite as strong for that purpose, as that used in any previous law. It is, however, undeniably true that during this long period this rule has been constantly recognized in paving Ordinances, adopted in practice, accepted by property owners and tax payers without demur, and has stood without objection until the present cases arose. It is also equally true that during the same period many paving tax cases have been brought to this Court and argued by eminent counsel, in which the validity of the taxes has been vigorously assailed on various grounds,, and yet this objection is now raised for the first time. These facts may not suffice to establish the legal existence-of the rule, hut they certainly afford material aid in the-[35]*35construction of the Ordinance now before ’US, which will be presently considered.
The argument on the part of the appellees, is to the effect that the Act of 1814, has expressly repealed all previous legislation on the subject, including those sections of the Local Code in which the front foot rule is prescribed, and has substituted its own provisions as the sole and only law relative to the paving and repaving of streets, and as this Act is silent as to the rule of assessment in such cases, the result is, either that no rule on the subject exists, and the city is left without a paving law which can be executed, or, as the only alternative, the assessments must be made upon the basis of the valuation of property for the purpose of ordinary taxation, fixed and ascertained under and by virtue of the general revenue and assessment laws of the State. But conceding the Act fails to prescribe, in express terms, any rule of assessment, it nevertheless vests the Mayor and City Council with “ full power and authority to provide by Ordinance for assessing the cost of any such work, in whole or in part, pro rata upon the property binding on such street or part thereof." Under this broad and general power, it is very clear, we think, that an Ordinance may be passed adopting the front foot rule as the mode of apportionment, and if so adopted that the rule will be lawfully established. Howard’s Case, 6 H. & J., 389. And such, in our opinion, upon fair and just construction, is the effect of the special Ordinance in question, and the provisions of the general Ordinance which it refers to and adopts. The special Ordinance' not only declares that two-thirds of the cost of the work shall be paid “by the owners of property binding on said street,” but it adopts all the provisions of general Ordinance ETo. 44, “ so far as the same may be applicable ” to the repaving which it directs to be done. Among the provisions of the latter Ordinance, which are unquestionbly so appli[36]*36cable, are sections eight and seventeen. By section eight, which relates to paving, the City Commissioner is required to impose a tax upon the owner or owners of property binding upon the street, or part'thereof to be paved, equal in amount to the whole cost of the work, and he is further directed “to assess and lay the tax upon the owner or owners of property on each side of said street, of one-half of so much of said street as may he in front of such property,” and by section seventeen, which relates to repaving, it is provided that, the “ same modes of procedure shall be adopted,” except that two-thirds only of the cost “shall be paid by the owners of property binding ” upon the street, or part thereof to be repaved; By other provisions of both Ordinances the work was required to be done under contract, to be given to the lowest bidder, and at a cost not exceeding a certain sum per square yard, which of necessity made the cost of each and every square yard of pavement or repavement uniform. After the contract was entered into, the ascertainment of the entire cost was merely a matter of measurement and calculation. Now, in view of this consideration, the only reading and interpretation we can give to this eighth section, is that it requires each frontage owner to pay one-half the cost, so ascertained, of paving so much of the street as lies in front of his property, and this is nothing more nor less than the front foot or frontage rule. Eor these reasons, we hold that the frontage rule has a legal existence, and it is, therefore, no objection to the validity of these assessments that they were made according, to that rule.
Some minor questions have been discussed which do not require an extended notice. We think it plain the Ordinance authorized assessments only on property fronting on that part of the street which was directed to be repaved, and not on property throughout the entire length of Pratt street. The duties of the City Commissioner are clearly defined and prescribed by the Ordi[37]*37nances. The ascertainment of the cost of the work, and the apportionment under the rule to the property owners, are, as we have said, matters of measurement and arithmetical calculation, which must of necessity he entrusted to a ministerial agent. Neither in this, nor in any other respect, do we find any unauthorized delegation of power to this officer.
(Decided 17th March, 1881.)
Finding then no valid objection to these assessments, the pro forma decree appealed from must be reversed, and the bill dismissed.
Decree reversed, and bill dismissed.