Moale v. Mayor of Baltimore

61 Md. 224, 1884 Md. LEXIS 11

• Court: Court of Appeals of Maryland
• Decided: January 11, 1884
• Status: Published

Opinion

Irving, J.,

delivered the opinion of the Court..

The hill in this case was for an injunction to restrain the -city authorities from selling the property of the complainants, the heirs-at-law of Randall H. Moale, for the payment of certain paving taxes assessed to the estate of Randall H. Moale, and claimed by the city to he a lien on the property. Demurrer was interposed, and the case was heard by the Circuit Court of Baltimore City, by consent •of parties, on bill and demurrer, without the granting of a preliminary injunction. After hearing, the bill was dismissed ; and this appeal is from the decree dismissing the bill.

By the Act of Assembly of 1874, ch. 218, the Mayor and City Council of Baltimore was empowered to provide, by ordinance, for the paving, grading, and kerbing of the .streets in the city, without application therefor by the owners of the property binding on such street, and to-■assess “ the cost of any such work in whole or in part pro rata, upon the property binding on such street, lane or alley, or part thereof, and for collecting such assessments as other city taxes are collected.” In pursuance of this authority, and in attempted execution of the power conferred, the Mayor and City Council'passed, in 1874, Ordinance -number 63, and Ordinance number’88, for the paving of Hanover street. The first section of Ordinance Ho. 63 being found in error in providing for the paving of Hammond street instead of Hanover street, provided for in the title, that section was repealed by Ordinance Ho. 88 of same year, and a new section was substituted. That section is as follows: “ That the City Commissioner be, and he is hereby, authorized and directed to have Hanover street, from Clement street to the shore of the middle branch of the Patapsco river, graded, paved, and kerbed, and to assess upon the owners .of property on said street, between the streets named, their proportional part of the expenses of said paving, grading, and kerbing, in accordance with existing ordinances and Acts of Assembly.” The second section of the Ordinance 63, which was not repealed, and is to be.read with the section just quoted, is as follows: “And be it further enacted and ordained, that the collector of the city be, and he is hereby, directed to collect said expenses, when so assessed, from said property owners as other city taxes are collected.”

1. The appellants contend that these ordinances for the paving of Hanover street are void. First, because the ordinance is not, as they insist, a proper execution of the power granted to the Mayor and City Council by the Legislature in chapter 218 of the Acts of 1874. It being necessary to strictly pursue the power granted, they insist the Council failed to do so, by directing the assessment to be made on the person, whereas the Legislature, in the Act, only authorized them to assess the expenses of paving on the property binding on the street, and in doing as they have, they have not confined the assessment to local property. Secondly, because the Mayor and Oity Council have delegated powers belonging only to them to the Oity Commissioner; and lastly, because of the front foot rule of assessment.

The ordinances upheld in Scharf’s Case, 56 Md., 50, and in the Johns Hopkins Hospital Case, 56 Md., 1, are so nearly identical with the ordinance now attacked, it would seem that those cases ought to be conclusive against all the objections alleged as invalidating the ordinance. It is true that the Act of 1874 does direct that the assessment be made pro rata on the property fronting on the street paved; but that was only intended to indicate the proportion in which the owners of property on the street were to be called on to contribute to the expense. It was to be apportioned ratably on the property on the street. It is difficult to see how the property could be assessed except as belonging to somebody, and of course that somebody would be the person to pay for the property, for the property could not pay for itself. It is umhrabtedly a personal debt to the extent of the property charged with the tax. The tax was intended to be, and is, a lien on the property; and the owner, to that extent, is answerable for its payment, as íbr a personal debt of any other kind; but we do not wish to be understood, that his liability for that tax would extend beyond the value of the property taxed for the improvement. We do not understand that question, last suggested, to be involved, but we deem it proper to say we express no opinion on that aspect of the question until it arises. That it is a personal liability, we think the cases of Dashiell vs. Mayor, 45 Md., 430; the Gould Cases in 58 Md., 48, and 59 Md., 378, and the case of Handy vs. Collins, Execittrix, 60 Md. 229, put beyond controversy. With respect to the contention, that the delegation of power by the Mayor and Oity Council to the Oity Commissioner is such as to render the ordinance void, we need only say that the last decision of the Scharf Case and the decision in the Johns Hopkins Hospital Case, whereby the first opinion was set aside and a new view adopted by a majority of the Court, establish that the ordinance in question is not infirm on that account; and that neither the Act of Assembly of 1874, nor the ordinance is obnoxious to constitutional objection. In the first opinion the position was distinctly taken, and argued out by the writer of this opinion, that there was such delegation of power to the City Commissioner as did invalidate the ordinance. That view of the case is not specially adverted to in the second opinion, which finally settled the case ; but inasmuch as the question was raised, and was necessary to the full decision of the case, and the ordinance could not be supported without concluding that objection to be untenable, it must be regarded as no longer an open question. The ordinance there and here, it will be seen in the further discussion of the case, are saved from that objection in the same way.

Again, it is objected, that the ordinance cannot be supported because the front foot rule of apportionment has been adopted, and that in this case, by the application of the front foot rule, a portion of the property of the complainants, fronting on the street paved, has been taxed beyond its value, resulting in the destruction of the property, which natural right will not permit. We do not understand the bill to present such a case as the argument suggests. If it did, it would raise a very grave question, whether the owner could be forced to pay the assessment in excess of such value, or be compelled to submit to a rule which, in effect, took his whole property from him. The suggestion of the possibility of such case illustrates the possible hardship of the rule, but we do not think this such a case. The bill alleges that of the part fronting on the east side of the street, which is in all six hundred and twenty ioet and nine inches, one hundred and twenty feet thereof consists of a strip forming a triangle near the intersection of McComas street with. Hanover street, and is very narrow, being on one side only twelve feet deep ; and that this has been assessed by that rule as much as the rest, which is from one to two hundred feet deep. By the very showing’ of the bill, it is one continuous lot and frontage, and the assessment has been made upon the whole lot with full respect, no doubt, to its full situation, and it must be so treated. It is that whole lot which is bound for the assessment on it, as a whole j and part of it cannot be excepted, and exempted from the burden. Nor can the larger part of it be released from any part of the tax, because a part of the lot, if assessed by itself, would present a case of extreme hardship, if not fatal to the rule in such case. Eor aught that appears in this case we see no reason to disturb the rule adopted and approved in the cases cited. .

2. Several exceptions are taken to the method of assessment by the City Commissioner, which are relied on to defeat the claim in whole or in part. First, it is contended that the ordinance requires the cost to be assessed on the property owner, whereas the assessment is made to-“the estate of Randall H. Moale.” This contention is. made on the assumption that we might overrule appellants’ first objections, as we have done. The assessment, was made in 1875. Randall H. Moale died in 1864. The bill does not allege there had been a partition of the property, and from that fact, and the suit being joint, possibly we might be justified in supposing the property still enjoyed in common. But, however that may be, it would seem to be too narrow a point, and entirely too refined, and inequitably technical for a Court of equity to declare that the city shall lose the tax and, the appellants enjoy the benefits of the improvement without paying anything-therefor, by reason of such imperfect designation of the person or property taxed. In common parlance “the estate ” is not only understood to indicate the property,, but the takers of it; and when it is said that an estate is charged with the payment of any claim, it is well understood that those who are to take, with the incumbrance, are to pay it, in due proportion among them. Manifestly this language was adopted not only to designate the property, but also that the former owner was dead, and that there were successors in title whom it was more convenient to designate in mass without separately naming them. After charging “ the estate of Randall H. Moale ” as debtor, the assessment proceeds to describe the property particularly, and by metes and bounds. Thus it appears that the requirements of the Act of Assembly, strictly considered, have not been violated by the ordinance, and that whether the person or the property is to be assessed, in this case it is sufficiently done on both.

Secondly. The appellants insist that the assessment is void and cannot be eniorced, because the property holders-along the line of the street, and fronting thereon, were not afforded an opportunity to select the kind of material with which the paving should be done. The ordinance under which this paving was done, directs the owners to be assessed “their proportional part of the expenses of said paving, grading, shelling, and kerbing, in accordance with existing ordinances and the Act of Assembly."

The bill charges that the only existing ordinances in force on the subject, at the time this ordinance was passed,, are Ordinance Eo. 65 of the ordinances of 1867, and Ordinance 44 of the ordinances of 1874. By Ordinance Eo. 65 of 1867, it is provided, that, “ Whenever application shall be made to the City Commissioner to have paved or repaved any street, lane, or alley of the City of Baltimore, or whenever said paving shall be done by virtue of any ordinance of the Mayor and City Council of Baltimore, it shall be optional with the owners of a majority of the from foot of ground binding upon said street,. &c., whether the said paving or repaving shall be done with stone or what is known as the Nicholson or other improved pavement.”

It cannot he doubted that this ordinance was intended to secure to the owners of a majority of the front feet on the street to be paved, the option of material with which the paving shall be done. But it is equally clear that no mode of giving them notice is provided for, nor any method prescribed for getting an exercise of their right in the matter. There would, therefore, seem to be no duty resting on the City Commissioner of taking any step towards securing their election. His sole duty would be to act in accordance with their option when properly and certainly signified to him. He was to he informed if they had any choice. Being given an option, the active measures to secure an expression of it rested on the property owners on the street. Some one or more of them, within a reasonable time, should have taken the initiative, and having secured, in some way, an election to be made, it should have been communicated to the City Commissioner; and in that case he would be bound by it. In the absence of such action and choice, the City Commissioner was justified in assuming it waived, and in proceeding to use such material as the general ordinance applicable to the case required him to use.

Thirdly. We come now to consider a more serious objection to the City's claim, though, in our view, it only diminishes the amount which the appellants or their property on the street must pay. By Ordinance 44 of 1814, section 16, it is provided “that whenever- any street, lane, or alley has been graded, gravelled, shelled, kerbed, or paved, in pursuance of this ordinance, the City Register shall pay the expense of the cross streets on the order of the City Commissioner.” And by section 8 of the same ordinance, provision is made for collecting from the property owners a commission of three per cent, of the whole cost, exclusive of cross streets, for collecting the assessment or tax. It is •charged in the complainants’ bill that Hanover street, between Clement street and the middle branch of the Patapsco river, (which portion of the street was by the ordinance ordered to be paved,) is intersected by Winder street, McComas street, Donaldson street, and Jefferson street, each of which is sixty feet wide ; and that of the cost of paving these cross streets twenty-four hundred and forty-two dollars and the tax of three per centum thereon for collection, being the sum of seventy-three dollars and twenty-six cents, making a total of twenty-five hundred and fifteen dollars and twenty-six cents has been erroneously charged against the complainants, and is included in the sum sought to be collected by the threatened sale ■of appellants’ property. The contention of the appellants, that this charge is erroneous, rests on the language of the Ordinances 63 and 88 of 1874, directing the paving and ■assessment to be done “in accordance with existing ordinances and the Act of Assembly;” and the fact, that the only existing ordinances, in force at that time, which could ■control the matter in any way, were Ordinances 65 of 1867, and 44 of 1874.

Obviously it was the intention of the Council to give the City Commissioner some guide in doing the work, and in the assessment, and not to leave the whole matter to his unlimited discretion; otherwise that language would have been wholly omitted. In Scharf’s Case, (54 Md., 522,) the ordinance, in terms, directed the paving and assessment to be done according to Ordinance 44 of 1874. A like provision was made in the ordinance for paving Pratt •street, which was the ordinance passed upon in the Johns Hopkins Hospital Case, (56 Md., 1.) The fact that this ordinance was made applicable to the paving ordered in those instances, shows there is no reason why the provisions thereof may not have been intended to control in this case, and may not have been meant by the language, “ existing ordinances.” The argument that it cannot apply because that ordinance is only made for cases where-the owners along the line of the street apply for the paving, cannot he sound.

The ordinance does so read, hut if the provisions are just in the case of application, they certainly are when the city does the work without application; and if there was good reason for applying its provisions in the instances cited, there would seem to he greater reason for applying them here. If it was not right to put the costs of the cross streets on the owners applying for the paving of a street, (which the ordinance hy its sixteenth section plainly adjudges,) a fortiori, it cannot he right to put it on the owners along the street when the city does the - work unasked, and it may be against the wish of the property owners. There being no other ordinance, except Ordinance 44 of 1874, on the subject, it is reasonable to suppose that ordinance was meant to apply. The sixteenth section of Ordinance 44 requires the city to pay the cost of paving the cross streets. This provision is so eminently just and proper, the Council must he supposed to have intended to assume the cost of cross street paving in this instance, and by the language relied on hy appellants. If there were several ordinances making inconsistent regulations, so that it could not certainly he known which was intended, we might plausibly he asked to declare the ordinance void for uncertainty; hut there being no such difficulty, as there are hut two ordinances which could possibly apply, and they being perfectly consistent, there seems to he no escape from giving them application under the phrase “ existing ordinances.” We have already considered Ordinance 65 of 1867; and are now considering the effect of the other, or Ordinance 44 of 1874, controlling the assessment. The Commissioner was certainly not intended to he left to act at will. If that were the case it might he seriously doubted if the ordinance was valid; and it would he hard to escape the conclusion that there was. such delegation of power to the City Commissioner as would render it void. In the cases already referred to and cited, the ordinances were upheld, notwithstanding the contention that there was delegation of power; and the plain reason for sustaining the ordinances was that Ordinance 44, being adopted as the guide, it declared the proportion of assessment and method of procedure, and the City Commissioner’s duty was merely ministerial, to execute what the Council had determined to be done. The view we take of this case brings it within the same reason. Directing the work and assessment to be done and made in accordance “ with existing ordinances,” is a direction to follow Ordinance 44 of "1814. In it only can be found warrant for adding a per centum for collecting the tax. If authority for that, it should be pursued throughout. "What we have said on this subject is on the assumption that the cross streets have been opened or ordered by the City Council, as we understand the allegation, which the demurrer admits. Otherwise no allegation, we think, would have been made. As there is some ambiguity in the averments, it is proper to add, that if, upon answer and proof, it appears there are no such cross streets in existence, and the property is all the complainants’, then the Court will decree according to the fact, and no abatement will be made.

4. In respect to the objection on account of the charge for interest on the unpaid assessments, it is only necessary to refer to the case of Bernei vs. The Mayor and City Council, 56 Md., 351. That case establishes that interest may be charged in the discretion of the tribunal passing on the claim. We see no reason for refusing it after the long delay in paying the sum actually due. But of course it should only be computed on the amount really chargeable against the complainants and their property.

5. With respect to the Statute of Limitations which has been relied on as a bar, we need only say that,we think the Gould Oases, already cited, conclusively settle the question against the appellants, and the Statute interposes no bar.

(Decided 11th January, 1884.)

Erom what we have said, it is apparent that we think the demurrer was too general and ought to have been overruled. The defendants ought to have been permitted to answer with respect to the allegation respecting the cross streets and the assessments for paving them; that issue may be taken, and-the question decided according to the fact. Eor this reason the decree dismissing the bill will be reversed, and the cause will be remanded, to the end that a decree may pass directing an injunction to issue restraining the city authorities from collecting in any way so much of the claim made as consists of cost of paving the cross streets, interest thereon, and commissions added for collecting that which is excluded; and permitting the appellees to proceed with the collection of the residue of their claim. The costs of both Courts must be paid by the appellees.

Decree reversed, and cause remanded.