Mayor of Baltimore v. Scharf

54 Md. 499, 1880 Md. LEXIS 112

• Court: Court of Appeals of Maryland
• Decided: July 2, 1880
• Status: Published

Opinion

Irving, J.,

delivered the opinion of the Court.

The bill of complaint in this cause was filed by the • appellees to restrain the Mayor and City Council of Baltimore from collecting certain taxes which had been assessed on them for repaving that portion of Baltimore street, between Harrison street on the east, and G-reene street on the west, by virtue of Ordinance Ho. 98 of the Ordinances of 1876. This Ordinance was passed in pursuance of authority from the Legislature given by ch. 218 of the Acts of 1874. The bill charges that the street was sufficiently paved for the interest of the complainants, with cobble stones which had already been paid for by the complainants ; that the repaving was ordered to he done with “Belgian pavement,” which was done for the benefit of the public generally, and was not necessary for the complainants, and subjects them to unnecessary cost and expense.

The bill sets out the several sums of money assessed on the complainants, and alleges that the Ordinance Ho. 98 ■ does not provide for the collection of the alleged assessments in accordance with the Act of 1874, ch. 218, and that the distraint is illegal. The hill further charges, that in the attempted exercise of the power claimed to have heen given them hy the statute, the Mayor and Oity Council have delegated to the City Commissioner, a discretion with respect to the repaving and rekerbing which could only he exercised by the Council itself, and that to that extent they have exceeded their powers ; that if the right to delegate the discretion which has heen delegated exists, the City Commissioner has not exercised the discretion properly, but has exceeded his powers. The complainants further charge that The City Passenger Railway Company is bound by Ordinance of the city and by its charter to keep the streets occupied hy its tracks, and two feet on each side of its tracks in thorough repair, and that the attempt on the part of the City to make the owners of the property binding on the street pay for two-thirds of the whole cost is illegal and void. That conceding they may repave under their powers, this Ordinance is void because they have not made the City Passenger Railway Company pay any part of the expense of the work. The Circuit Court for Baltimore City, upon answer filed and proof taken, passed a pro forma order granting the injunction and making the same perpetual. Prom that order this appeal is taken.

The Ordinance in question has no preamble. It consists of three sections.' The first section simply repeals Ordidance No. 80, approved September 16th, 1814. Sections 2 and 8 are as follows : “ Section 2. And be it enacted and ordained that the City Commissioner be and he is hereby authorized and directed to have all that part of Baltimore street from the west side of Greene street to the east side of Harrison street repaved, and rekerbed where the same is necessary, the repaving to he done with the pavement known as the ‘ Belgian pavement/

“ Section 3. And be it enacted and ordained, that the cost of such repaving shall be defrayed according to the provisions of Ordinance No. 44, approved June 4th, 1874, viz., two-thirds of the whole cost to he assessed upon the owners of the property binding upon said street between Greene and Harrison streets, and one-third to be paid by the city.

The copy of the Ordinance filed with the answer of the Mayor and City Council, and alleged to be a true copy of the Ordinance, the appellees insist is not a true cojjy of the Ordinance as passed and as published in the printed copy of the Ordinances, which, by law, is made evidence of what the Ordinances are; while the appellants contend that the Ordinance, as passed and on file in the proper office, and of which the copy filed with their answer is a true copy, differs from the Ordinance in the printed volume in this—that in the latter a comma precedes the word “ repaved ” instead of following it, as is the case in the original. The effect of this improper punctuation in the printed copy, on which the appellees rely, is to make the discretion vested in the City Commissioner by the words “ where the same is necessary ” apply to the repaving as well as the rekerbing; whereas, the appellants insist the true punctuation confines it to the rekerbing. At the hearing it was admitted by the counsel for the appellees that the punctuation in the original is as charged by the appellants. The appellants contend that the Ordinance is perfectly valid, and has been passed and executed in entire conformity with the Act of Assembly; that whether the repaving was necessary cannot be inquired into by this proceeding, as the Council was the sole judge of its necessity and its beneficial character to the ajjpellees.

It is well settled that where nothing to the contrary appears in an Ordinance directing paving or repaving to be done, and the Ordinance charges the owners of the property along the line of the street with the cost of such, improvement, the presumption is, that the Mayor and City Council have decided, that the improvement is so far beneficial to them and their property that they ought to pay the proportion of the cost of it which has been put on them, and it will be held an adjudication of that question by that body. Hughes’ Case, 1 Gill & Johnson, 492; Moore vs. Mayor and City Council, 6 H. & J., 375; Burns’ Case, 48 Md., 198. These cases also decide, by necessary implication, that the Mayor and City Council, under their charter and the several Acts of Assembly defining their powers, are the proper tribunal for the determination of the question whether such improvement is needed, and whether a particular district of the city should have the burden of making it; but these decisions proceed on the hypothesis that the Mayor and City Council have done all that was necessary to be done preliminary to their action, to justify their action and make it final. They do not decide the question which is raised in this case, for it was not before the Court. In Hughes’ Case and Moore’s Case the question did not arise, for the law was then different, and the point at least was not made. In Burns’ Case the point was not made, and if it had been, would not have been necessary to the decision of the case as it was decided. In this case the appellants contend there is no jurisdiction in the Court to consider or review what has been done by the Mayor and City Council—that their action is final. On the contrary, the appellees insist that the Court can and ought to interfere, by wa_y of injunction, to restrain the execution of the Ordinance against them, because the Ordinance No. 98 of 1876, under which the appellants have proceeded, is void, because it makes no provision for notice to the property holders to he affected, of their intention to consider the subject, and gives them no opportunity of being heard about it and their taxation for the cost of the repaving. The question presented has, we believe, never before been raised in this State. Prior to the Act of 1874, ch. 218, (under which Act Ordinance 98 was passed) such improvements as were provided for in that Ordinance could only he made by the Mayor and City Council upon an application of a certain portion of the owners of the property intended to be affected by the improvement and to be charged with a part of the cost. And the Act of 1870, ch. 322, in cases of change of grade, paving, repaving, or renewing curb stones of any street, lane, or alley, made provision for notice of the determination of the matter by the Mayor and City Council in respect to the application, to be published in the newspapers for three weeks successively, and thereby give an opportunity to any person to appeal from the decision of the Mayor and City Council, within thirty days, “ to the City Court, or any other Court of competent jurisdiction, which Court should hear and determine the appeal.” By this Act a trial by jury was accorded, and a further appeal to the Court of Appeals from any ruling of the Court. By the Act of 1874 a new state of things is introduced. The Act-of 1870, ch. 322, is expressly repealed by it. The necessity for the application of a part of the owners of the property binding on the street to be improved, was wholly dispensed with, and the authority was conferred on the Mayor and City Council to proceed without such application. The Act makes no provision about notice, and the question is whether the Act of Assembly intended, in cases of paving and repaving, such as are provided for in the Act, to dispense with notice altogether; or intended to leave the question of notice, its kind and extent, to the discretion of the Mayor and City Council; if it did intend to dispense with the necessity for notice, whether the Legislature had the power to do so ? And, if the Legislature intended to leave that matter entirely to the Mayor and City Council, whether the Mayor and City Council have acted legally and constitutionally in dispensing with notice, or failing to provide affirmatively for notice ? We cannot suppose the Legislature intended to sanction the course pursued by the City authorities in this instance.

It was not necessary for the Legislature to designate all the formalities the Mayor and City Council were to. observe in the execution of the powers the Legislature was. conferring upon them by the Act in question. We must assume that the Legislature intended them to determine the character and extent of the notice, which the exigency of the case demanded, and of the proceedings after it. The 26th section of the Baltimore City Code of 1879 says, “ the Mayor and City Council shall have power to pass all Ordinances necessary to give effect and operation to all the powers vested in the corporation.” The Legislature must have intended them to execute the powers vested in them respecting the paving and repaving the streets of the city, with a due regard to all the legal and constitutional rights of those interested in their action. The Legislature has not declared that notice shall in no case be necessary, and tlie mere failure to provide for it does not,, we think, warrant the inference that it intended to abridge any of the constitutional rights of the property-holders, in the city.

Judge Dillost says, in section 262 of his work on Municipal Corporations, “Where the power to legislate on a. given subject is conferred, but the mode of its exercise is not prescribed, there the Ordinance passed in pursuance-thereof must be a reasonable exercise of the power, or it will be pronounced invalid.” The Legislature could not have intended so unreasonable an exercise of the powers conferred about paving and repaving, as to justify such an Ordinance as this one is, without any notice of any kind to the property-holders.

If notice was necessary, and was provided for by the-statute and Ordinances, at a time whére a majority of front feet owners were required to petition for the repaving, as. a protection to those who did not unite in the application, even to the extent of requiring notice of what action the-Mayor and City Council had taken, in order that an •appeal might he taken, to a Court of justice, and finally an appealed to the Court of Appeals; surely, when the neces-sityr for application hy any body is done away with, and all opportunity of appeal by direction from the Legislature is withdrawn, the Legislature did not intend to •authorize the Mayor and City Council to proceed without any notice at all. A fortiori there was greater need now for notice than before. If such was the purpose of the Legislature, we could not uphold the law; hut if the Ordinance had made suitable provision for notice under the law, we think it might stand. In providing for no notice it departs from the usage which has prevailed, and which still accords, hy law, notice in other cases of improvement of no greater importance ; such as opening new streets, widening old ones, paving to prevent or remove nuisances and many others.

Can such an Ordinance he supported? and can proceedings under it he upheld, of which, so far as the complainants are concerned, the first notice they had was the levy for assessments.

The Constitution of the United States provides that no State shall deprive any person of life, liberty, or property without due process of law; “ what is due process of law ” has heen*tEUsuhject of much and very able discussion, and •of many decisions; but an exact definition has never been given which will include all cases to which it applies. The full meaning of such an important phrase remains to he ascertained by the gradual process of “exclusion” and “inclusion” in judicial determination as cases may •arise. Davidson vs. New Orleans, 6 Otto, 104. Judge Cooley, in his work on Constitutional Limitations, page 356, after saying that “ due process of law ” is not confined to judicial proceedings, says, that “in each particular case it means such an exertion of the powers of Government as the settled maxims of the law sanction, and under such ■safe-guards for the protection of individual rights as those maxims prescribe for this class of cases to which the one in question belongs.” The same author in his work on Taxation, page 265, says, that in proceedings involving taxation, “ it is of the utmost importance to the person-assessed, that he should have opportunity to be heard before the charge is fully established against him,” and on page 266, Judge Cooley, says, “ we should say that notice of proceedings in such cases and an opportunity of being heard were matters of constitutional right.” It is necessary therefore to the validity of a law, such as the Ordinance under review, that at some stage of the proceedings in the tribunal charged with determining the question, the party to be affected should have opportunity of being heard on the matter.

The case of Stuart vs. Palmer, 74 N. Y., 183, is similar to this and exactly in point. An Act was passed “ to lay out, open and grade Atlantic avenue in the town of New Lots, King’s County.” Proceedings were had and assessments of taxes were made. A proceeding was instituted on the part of one of the persons taxed, to vacate the-assessments, to remove a cloud from his title and to-restrain the collector from collecting the tax. In that case no notice was provided for by the law or the-ordinance. The case was most carefully considered, and Judge Earl in delivering a very convincing opinion,, in which all the other Judges concurred, says: “I am of opinion that the Constitution sanctions no law imposing such an assessment, without notice tó, and a. hearing, or an opportunity of a hearing by the owners of the property to be assessed. It is not enough that the-owners may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require notice to them and give them a right to a hearing and an opportunity to he heard. It matters not upon .the question of the constitutionality of such a law, that the assessment, has in fact, been fairly apportioned. The constitutional validity of the law is to be tested, not by what has been done, but what may by its authority he done. The Legislature may prescribe the kind of notice and the mode in which it shall he given, but it cannot dispense with all notice.”

The same doctrine is maintained by the Supreme Court of the United States in Davidson vs. New Orleans, 6 Otto, 104; Philadelphia vs. Miller, 49 Pa., 440; 31 N. Y., 514; Ireland vs. The City of Rochester, 51 Bar., 414.

In Ohio, and perhaps some other States, it has been held that notice is not necessary; but, in our opinion, the weight of authority is decidedly on the side of its necessity as a constitutional right. Ho cause could better illustrate the necessity for it than the present one. Here was a pavement of cobble stones for which the complainants, or their predecessors in title, had paid. The City determines to take that up, and replace it with a pavement of a differ- • ent material and character. Adjudging, without notice to them, that their property will he much increased in value by the improvement, so much so as to justify the imposition of two-thirds of the cost of the new pavement upon them, they are taxed accordingly, and the collector of taxes is sent after them to collect it,—when the first information they have had of the proceeding is the presentation of a tax hill which is a lien on their property. It may he likened to obtaining a judgment without the defendant having ever been summoned. Of course, on proper proceeding such judgment cannot stand. The injustice of such legislation is glaring. It is not only unjust; it is an invasion of those rights which cannot be interfered with except by “due process of law,” and this “due process of law” involves a day for, and an opportunity for, a hearing. This Ordinance makes no provision for notice, and, on the authority of adjudged cases, is invalid. If the Act of Assembly is good, the Ordinance is void so far as the appellees are concerned, for the want of some provision for notice to them. It may he that the decision would have been the same, and that their proofs and arguments would have been unavailing if they had received notice, had appeared and had a hearing. If so, they would have been compelled to abide the decision which had been legitimately reached. Still, their right to the hearing is indefeasible. It may be, that the tax levied on the complainants respectively is inconsiderable, and it may he justly apportioned in fact; but that can make no difference in determining this question, for their rights cannot he ■ infringed in the slightest degree by the City without due constitutional proceedings to warrant it. It is said that the restrictions, such as this doctrine imposes on the Mayor and City Council, will seriously retard public improvement, and put obstacles in the way of the City’s progress. The necessity for improvement to keep abreast with other cities and progress generally, cannot justify the disregard of conceded rights of the citizen who is to he especially charged with the cost of such improvement; hut, in fact, the improvement which well-directed public spirit may devise will not he impeded thereby. The substitution of a new pavement of different material for an old one is certainly of no higher importance in the city’s march of improvement than the widening of a great street or thoroughfare, or the paving of a street or alley to prevent or remove a nuisance; yet in each of the latter instances the law, conceding the great underlying principle of the right of the citizen to notice, provides for notice ; and, in the case of paving to prevent or remove a nuisance, provides a mode for contesting the necessity for the work, and the propriety of the tax even after the work is done, by allowing defence on a suit for the tax imposed. That does not stop or hinder improvement, nor will this decision; but if it did, in pronouncing upon such important constitutional rights, we could not set aside well-established principles to expedite the improvement of a city.

We might well rest the decision of this case on the point first discussed, but there is another question of the gravest importance, affecting the validity of this Ordinance on which it is proper to pass, especially as the defect can so easily he avoided in future. It is a plain principle, and well settled hy authority that “ public powers or trusts devolved hy law or charter on a council or governing body cannot he delegated to others.” So that an Ordinance, which delegates a discretion which can ■only he exercised by the council, or requires a certain thing to he determined hy some one else, as their agent, which their charter requires to he decided -by them, is void. 1 Dillon on Municipal Corporations, sec. 60; Birdsall vs. Clark, 73 N. Y., 73. In the case of Birdsall vs. Clark, the question is very fully discussed hy Judge Church, and most pertinently to this case. In that case the charter of Binghampton conferred on the council the power to have certain wort done “ hy contract or otherwise.” The council passed an order directing the superintendent of streets to cause it to be done. It was decided that the act contemplated the action of the council in each case—that it was a power to decide as to the mode of -doing the work which could not he delegated to another. Whether the work should “be lét to the lowest bidder, or hy contract with somebody without bidding, or partly hy contract and partly hy day labor, were questions the council only could decide.” “The owner who is ultimately to pay the expense has an interest in the manner in which the work is to he done, because it may materially affect the amount of expense. He is entitled to the judgment of the council on that question.” In Thompson vs. Schermerhorn, 6 N. Y., 92, the Court held that an Ordinance which provided for the pitching and flagging of a certain ■street in such manner as the city superintendent, under the direction of a committee of council, should direct and require,” was void; because the council did not decide hy the Ordinance how the work was to he done. • Applying these principles to the Ordinance before us we find it is fatally defective in leaving to the City Commissioner the determination of certain questions, solely within the power of the Mayor and City Council. We do not think the leaving to the City Commissioner the determination of the question where the kerbing needs replacing, is a violation of this principle. To determine whether this or that kerb stone should come out and a new one go in, cannot be an infraction of the principle announced. All such rules of law are to be rationally understood and reasonably applied. It would be almost impossible, in the nature of things, for an Ordinance to designate every foot or inch of the line of the street where a new kerb stone was needed. That would be wholly impracticable. They determine that rekerbing along a particular street is needed, and the Commissioner is directed to do it, saving all that can be saved of the old. It is the discretion necessarily belonging to a workman employed to do a work. In alluding to this part of the appellees’ argument we restrict our comments to the kerbing, for we think a reasonable construction of the Ordinance would put the punctuation where appellants insist it belongs, if it was not abundantly clear that the original Ordinance did so place it; for it is very unreasonable to suppose the Council intended to provide for paving with Belgian blocks in patches; so as to have a patch of cobble stones here and a patch of Belgian blocks there. That is too irrational to suppose the Council so intended. The discretion, which we think has been improperly delegated, is about a matter of which the Mayor and City Council only could legally determine. “ The Mayor and City Council shall have and are hereby vested with full power and authority to provide by Ordinance,” &c., is the language of the Act of Assembly. After stating what they may provide for by Ordinance, the Act adds, “ and also for assessing the cost of any such work in whole or in partproraiaupontheproperty binding on such street, lane or alley or part thereof, and for collecting such assessments as other city taxes are collected.” The Act of Assembly vests them with the power of fixing the pro rata to be paid by the benefited property or property owners. The Act does not determine how that pro rata is to be ascertained, but leaves the Mayor and City Council to determine the mode of reaching the contributory shares of such property holders. The third section of the Ordinance, we are considering directs that the cost of the repaving shall be defrayed according to the provisions of Ordinance No. 44 of 1874, viz., “ two-thirds of the whole cost to be assessed upon the owners of the property binding upon said street between Greene and Harrison streets, and one-third by said city.”

The Ordinance does not establish upon what principle this assessment is to be made. The videlicet would seem to limit the provisions of Ordinance 44, intended to be re-enacted here, to the particulars following the videlicet, which designates the proportion to be paid by City and owners respectively, and how the tax is to be collected. Conceding it, however, a wider range and to include any provision of Ordinance 44, which may be applicable to the subject indicated, we look in vain to Ordinance 44 for any provision how this tax is to be imposed. Section 17 of the last-mentioned Ordinance, which is the only section relating to the subject, fixes no basis for a computation. How that basis may be, according to the authorities and practice, according to area, according to frontage, or according to the value of the property. It is manifest that these several modes, as the one or the other might be adopted, might materially affect the contributory share of the respective owners. This is especially one of the things about which the owners would be entitled to notice and a hearing. Apportionment according to frontage is subject to serious objection, as sometimes working great injustice- and imposing an undue proportion of the cost of the work on proprietors whose actual area is small and of inconsiderable value, while others of smaller frontage hut much larger area and value are required to pay a smaller share of the cost than their neighbor of smaller dimensions and worth. It certainly is not so fair and equal a method as upon the basis of the value of the actual area unimproved which fronts on the street; and while we do not mean to say that apportionment according to front feet cannot he sustained in this State, notwithstanding decisions elsewhere against it, yet the objections to it as a just mode of ■computation, demand that the Mayor and City Council determine by Ordinance, either general or special, on what basis the apportionment shall be made. It is certainly not provided for in either of the Ordinances 98 or 44, and there is no general Ordinance on the subject. Section 845 of the Local Code of Baltimore City did provide how the apportionment was to be made, and the mode of computation; but that was expressly repealed by this Act of 1814, ch. 218, and that Act fixed no basis in its stead. The leaving, therefore, of that question to the determination of the City Commissioner, was a delegation to him of a discretion about a question which belonged wholly to the Mayor and City Council, in the absence of legislative enactment on the subject. We were told, at the hearing in this Court, that the frontage method was the method adopted, and that was the practice. It may have been practiced, and properly so, in cases where that method was authorized by law or Ordinance; but to enable a ministerial officer, such as the City Commissioner, to make his calculations and assessments on that principle, that method must have been selected for him by the authorities vested with the power of making the selection. The mode adopted for the other cases of improvement, and authorized by the Ordinances directing such improvements, cannot be adopted and applied to this unless there "be a general Ordinance covering the subject—and we can find none.

The questions raised by the appellees that the city could not order this repaving to be done at the charge of the appellees, because the charter of the City Passenger Railway Company imposed the duty, on that corporation, of keeping the track of the road and for two feet on each side of it in thorough repair; or if it could, it could not do so legally without assessing it with a part of the cost, are not necessary to the decision of the case as it stands; but as it may prevent further litigation on that score, we may properly dispose of the questions. There can be no doubt that the rails, road-bed and other property of that corporation are subject to taxation for municipal purposes ; but it does not follow that it must contribute specially to street improvement such as this is. Their estate is such as would not be enhanced in value by the projected work. The only ground on which assessments, on the owners of land on each side of the road, for such improvements, has ever been justified, is on the theory that such property owners are especially benefited, and the • land itself enhanced in value by the improvements. Stuart vs. Palmer, 14 N. Y., 189; Burns’ Case, 48 Md., 198. The property of the City Passenger Railway does not fall within the description of lands embraced in the theory; nor within the description of “ property ” which the Act of Assembly directs may be made to share the burden of the improvement. It is the property on each side of the street which the Act "authorizes the city to charge in whole or in part with the cost of the repaving.

The objection that the obligation to repair is on the Railway by the express terms of its charter, interposes no sufficient reasons to avoid the Ordinance. Their obligation is to keep in repair, not to repave with a new and different material and perhaps more costly. The obligation of the Railway company to repair the new pavement whenever necessary, would, attach under their charter •obligations, unless sufficient reasons could be found to relieve them. They accepted their charter with the burdens imposed, with the knowledge that the city was growing, and that great changes would become necessary in the way of improvement ,to keep pace with its advance in material wealth and importance as a metropolis, and 'their contract would have to he construed in the light of such facts. Having determined that Ordinance, No. 98, of the Ordinances of 1876, is fatally infirm for the reasons indicated, the only remaining question is, was the remedy by bill for injunction ? Of this there can be no doubt. This has been conclusively settled by many cases in this Court. In Page vs. Mayor, &c. of Baltimore, 34 Md., 564, this Court said: “There is no doubt that where an Ordinance is void, and its provisions are ■about to be enforced, any party whose interests are to be injuriously affected thereby, may, and properly ought to go into a Court of equity, and have the Ordinance stayed by injunction. This course of proceeding has been sanctioned and approved by this Court in numerous cases.” To the cases there cited to sustain that doctrine, may be added Mayor and City Council of Baltimore vs. Radecke, 49 Md., 232, where it is-emphatically re-affirmed. This case falls within the principles decided in those cases. The jurisdiction of the Court of equity was clear, and the Court below committed no error in granting the injunction and making it perpetual.

(Decided 2nd July, 1880.)

* Decree affirmed with costs.

Muller, J., dissented.

This decree, subsequently, after a re-argument of the case, was rescinded, the decree appealed from reversed, and the bill dismissed. Vide Mayor, &c. of Baltimore vs. Scharf, et al., 56 Md.