Washington Suburban Sanitary Commission v. Noel

142 A. 634, 155 Md. 427, 1928 Md. LEXIS 137

• Court: Court of Appeals of Maryland
• Decided: June 21, 1928
• Docket: [No. 37, April Term, 1928.]
• Status: Published

Opinions

Boxd, C. J.,

delivered the opinion of the Court.

This appeal is from the overruling of a demurrer to a bill to restrain the collection of an increased special assessment or supplementary charge of benefits made under statutory authority, after a like charge, under an earlier statute, had been held invalid in the case of Sanitary Commission v. Scrivener, 153 Md. G8. Areas in Montgomery and Prince George’s Counties, near the District of Columbia, to be supplied with new sewerage, water and drainage systems, have been combined and organized by act of assembly into a special district, and it has been provided tbat the cost of the improvements shonld be paid ultimately by levy upon the properties in the district in two ways, by a general ad valorem tax and also by additional or special assessments per front foot npon properties abutting on streets, lanes, or alleys in which the pipes are laid, for the peculiar benefits accruing; to those properties. Acts 1916, ch. 313; 1918, ch. 122; 1920, ch. 518, and 1924, ch. 189. Dahler v. Washington. Sub. San. Commn., 133 Md. 644. And the commissioners, appointed under the acts were to classify the properties in the district and fix the amount of the front foot charge for those of each class. Construction was duly begun, and that in the street in front of the Scrivener property was finished, and a front foot benefit charge was duly assessed and paid as long as the particular amount was accepted. In all the last three acts of Legislature specified, it was provided that “the classification of and benefit assessed against any property as made by the commission shall be final,” subject only to revision at a hearing which was provided for. The acts of 1918 and 1920 also contained a provision that no benefit charge once levied should be increased; but that was omitted from the act of 1924. In 1925 the commission, without notice or opportunity for a hearing, increased the front foot benefit charges upon all properties of the various classes for the purpose of defraying the cost of reinforcement and augmentation of the systems, required by an unanticipated growth and spread of population within the district. In the Scrivener case, however, the lower court ordered the writ of mandamus to issue directing the commission to rescind that levy, and the order was affirmed by this court, because under all of the last three acts notice and opportunity to be heard were required, and an additional assessment was expressly prohibited. Since that decision the General Assembly has passed a further, curative, act (1927, ch. 506), providing that: “All front foot benefit charges heretofore levied by said commission, whether by original levy or by increase, as the same stood charged by said Commission against the respective properties on December the 31st, 1926, are hereby ratified and confirmed and determined to be a reasonable charge, and such front foot benefit charges as the same had been levied or increased by said Commission are hereby declared to be a lien upon the properties against which the same were charged by said Commission and enforceable as a lien under the provisions of the law relating thereto at the time the same were in default. The front foot benefit charge herein levied shall not be increased nor shall any additional front foot benefit charge be levied against the property upon which there had been levied a front foot benefit charge as of December 31, 1926.”

The appellee, an owner of property situated similarly to that considered in the Scrivener case, and similarly assessed, after alleging these facts, prays an injunction against the increased front foot charge on the ground, that (1) the Act of 1927, in its attempt to overcome the deficiency because of which the assessment had been held invalid in the Scrivener case, merely reversed that decision, and in doing it assumed a judicial function, within the ruling in Baltimore v. Horn, 26 Md. 194; that (2) no benefit for which an addi tional charge could he levied would accrue to the complainant’s property from the further construction and installation which is to he paid for, and a benefit charge would for that reason be invalid because depriving the complainant of her property without duo process of law and without compensation; that (3) the Act of 1927, properly construed, gives authority only for the original assessments previously recognized by this court as valid, and not for the increase; and that (4) the Act of 1927 is void because it attempts to authorize an assessment in varying amounts for a benefit which it states is to be equal.

The decision in Baltimore v. Horn, supra, was that a legislative authorization of the city officials merely “to collect and receive” sums previously assessed under ordinances held invalid was a plain reversal of the judgment of the court, an attempted exercise of judicial power, and so beyond the powers of the General Assembly. A special statute had required that, before grading and paving North Avenue in Baltimore City, the mayor and city council should determine whether the work was for the public good, and should then assess damages as well as benefits to abutting lots, but the city commissioner had pursued the ordinary course for grading and paving within the city limits, and there had been no previous determination by the mayor and city council that the work was for the public good, and no damages had been assessed. And a charge made for benefits was held to be in contravention of the statute. Then the Legislature ordered the sums so assessed to be collected and received, and this was held to be a usurpation of a judicial function as stated. The point was not much argued in the opinion, but the citations in it show that the court regarded the act as the same in effect as acts interfering in particular judicial proceedings. The case of Denny v. Mattoon, 2 Allen (Mass.) 361, described as directly in point, was one in which the Legislature undertook to confirm proceedings in insolvency had before a supposed judge who was in fact without title to the office, and which the Massachusetts Supreme Judicial Oourt had held invalid for that reason. And the Maryland cases cited were instances of similar interference. None of the cases cited involved an act to provide subsequent legislative ratification of the action of a public body dependent upon legislative authority and held invalid for want of it. And the great weight of authority, including that of the Massachusetts court, is to the effect that authority which the Legislature might have given in advance is equally effective when given subsequently, notwithstanding an adjudication meanwhile on the lack of the previous authority. See review of decisions on “Validity of curative statutes impairing judgment or rendering it ineffective,” in note, 25 A. L. R. 1136. Hodges v. Snyder, 261 U. S. 600.

Putting aside, however, any question of the weight of authority on the principle elsewhere, and giving the case of Baltimore v. Horn the effect contended for by the appellee, we still have to consider the effect of the rules adopted in other Maryland decisions, that after a first assessment has been found unauthorized, a new assessment might be authorized by the Legislature, and that the Legislature might fix the amount of the charge to be assessed, and that therefore, an act, adopting the form of an original assessment, might validly provide for the levy of exactly the amount levied under the previous invalid proceeding. Baltimore v. Ulman, 79 Md. 469; Leser v. Wagner, 120 Md. 671; Dinneen v. Rider, 152 Md, 343. The difference between such an act, in the form of an original assessment for the same amount, and an act like the present one ratifying and confirming the assessment of that amount as previously charged, accompanying it with a finding that it is reasonable and that the property so assessed is benefited, seems to be little more than a difference in words. In each act the Legislature adopts as its own an amount previously fixed. We do not see any logical reason for holding that in thus subsequently providing the legislative foundation previously found lacking, there is a reversal of the judgment of the court and an assumption of a judicial function.' We therefore conclude that the ratification in the act of 1927 is not invalid for this reason. See Havre de Grace Water Co. v. Havre de Grace, 150 Md. 241, 253.

As we view it, this present act makes, in substance and effect, a new, legislative, assessment of the amounts previously charged on the complainant’s property, and we have to deal with a case in which there has been a determination by the Legislature for itself of the district on which the cost of the improvements is to be assessed, and of the amount of front foot benefit charges which are reasonable, and an actual legislative imposition of those charges. This analysis of the case furnishes, under the authorities, the answers to most of the objections made to the validity of the assessment, for it is well settled that a special benefit assessment by the Legislature directly, upon its finding’ that the land charged is benefited, is valid and final, beyond interference by the courts, in the absence, at least, of a showing that the determination is plainly arbitrary in some respect, and an abuse of power, such as is not alleged in this case. Leser v. Wagner, 120 Md. 671, 677; Lyon v. Hyattsville, 125 Md. 306, 311.

The objection that, according to the allegations of the bill, no benefit has in fact accrued to the complainants’ property, is the second one upon which the decision in the court below chiefly turned. An expression in the conclusion of the opinion in the Scrivener case is cited as a determination that there was no benefit to the Scrivener lot from the expenditure to be met by the second assessment, and that for this reason the second assessment was without foundation in law. But the court was not in that case dealing with the question whether the amount of the increased assessment exceeded the amount of special benefits in the district, nor was it dealing with the appropriateness of defraying cost from general county taxes or by a general ad valorem tax rather than by front foot apportionment. And especially was it not dealing with a legislative determination of the existence and the amount of benefits, as here. The decision was solely on the question of authority under the statute, as it then was, to make an increased front foot assessment of abutters without notice and opportunity for a hearing.

Beyond this, .the contention that the increased front foot charge was not justified by any special benefits to the property in this case is based on several arguments. To some extent, it seems to assume that there must be a benefit peculiar to the one property rather than to all the properties in the special district, treated as a whole. And so far as this-is the argument, it is opposed to- the plan adopted in the act, and opposed to decisions which uphold such a plan. A front foot charge on property in a selected district and class is-an averaged charge, necessarily overlooking possible differences in benefits to individual holdings in the district and classification, for the class is the final basis of assessment. And it has long been settled that the Legislature may so-classify properties for apportionment of the cost, and that the courts will not interfere except when the classification is-shown to have been palpably arbitrary, and constituting a plain abuse of power. Dinneen v. Rider, 152 Md. 343, 365; Dahler v. Washington Sub. San. Commn., 133 Md. 644; Welsh v. Coglan, 126 Md. 1; Leser v. Wagner, 120 Md. 671; Baltimore v. Stewart, 92 Md. 535; Cooley, Const. Lim. (7th Ed.), 729; Seattle v. Kelleher, 195 U. S. 351; French v. Barber Asphalt Co., 181 U. S. 324; Spencer v. Merchant,, 125 U. S. 345, 355; Missouri Pac. R. Co. v. Road District, 266 U. S. 187. And, as has been observed, there is no allegation of arbitrary action or abuse of power, in making the classification for front foot charges here.

Taking the classification then to be a proper basis for assessment of front foot benefit charges, it is argued that the levy of the increase on the complainant’s property is still unconstitutional because the amount of benefits had been fixed for that property and partly paid, and because the increased outlay to be met by the commission was based on no change in construction in front of the property, and no-change in supply to it, and that for these reasons the additional cost, must, following the benefits from it, be met by assessing other properties actually benefited, by increasing the; general ad valorem tax throughout the district, or by general county taxes. We do not see any principle upon which the additional front foot assessment on this property could be held unconstitutional merely because there had already been an assessment levied on it. So long as the constitutional limits are not exceeded on the .whole, there seems to be no illegality in making a total permissible charge in more than ■one assessment. Supplemental assessments are common and have generally been upheld. 1 Page & Jones, Taxation by Assessment, sec. 954; Kadow v. Paul, 274 U. S. 175.

Whether the increased cost to be met should be defrayed rather by assessments confined to other properties in the district or by increase in the general ad valorem tax on the district as a whole, or on the counties, may be answered in part by the rule already cited, that tire Legislature has power to classify properties in a special district to defray the cost of a benefiting improvement, and that its decision is final, in the absence of a showing of arbitrary action and plain abuse of power.

It is clearly settled in this state that the Legislature might require the entire cost of installation of an improvement to be defrayed by front foot assessments on properties within a specially benefited district. Dinneen v. Rider, supra; Hyottsville v. Smith, 105 Md. 318; Baltimore v. Scharf, 54 Md. 499; Baltimore v. Moore, 6 H. & J. 375. And this being so, there can be no unconstitutionality in its assessing any part of the cost by this method. Idle cases which deal with assessing locally a cost which is clearly one of the general expenses of government can hardly have any bearing on the problem of apportioning costs of original installation within a specially benefited district; and here the district exists only as one benefited by the improvements.

Hie objection raises, however, the more important question whether the installation of the trunk line sewers and water mains required to meet the needs of the increased population, and which, according to the allegations, caused the increased assessment, can be considered as included in the original installation of the improvement, for which benefits might properly be assessed throughout the district. There must be a time when the benefiting installation is to be regarded as completed, and after which additions and extensions would be in the nature of upkeep or of new improvements, the cost of which should either be paid as part of the general governmental expenses or be defrayed by assessments on the newly supplied property; and, on the other hand, original installation in a growing community must be taken to include adaptations to changed conditions during the course of the work. The mere allegations that the additional construction necessitated in this instance from the increase in population is remote from the complainant’s property, involves no change in its neighborhood, and brings no benefit to the property, does not present a case of a general governmental expense to be met only by general county taxes, for the expense appears to be one of construction of an improvement, taxes for which, under the authorities already cited, may, at least, be confined to the specially benefited district. It appears that the construction is still part, of the original installation, although it is enlarged to meet the changed conditions; and this being true, we see no ground for holding that it may be arbitrary and a plain abuse of the power of the Legislature to cause the cost of it to be apportioned as part of the front foot benefit charges.

The third general contention of the complaint is that the Legislature, in ratifying and confirming by the Act of 1921 the assessments standing on the commission’s books on December 31st, 1926, must be considered as intending to ratify and confirm only the legal assessments made before 1925, because before the Act of 1921 was signed the assessments of 1925 had been held invalid. That contention does not allow, however, for the express inclusion in the ratification of benefit charges “by original levy or by increase,” and we have not been able to agree in it.

There is only a very general allegation in the bill that the-amounts of assessments for equal benefits have varied and lacked uniformity. Of course, some lack of uniformity may have occurred without rendering the assessment invalid. As sessment by classification of properties inevitably brings some lack of uniformity. On the specific facts alleged in the bill, no invalidity on this ground is apparent, and from the arguments and briefs we infer that there are no other facts to be adduced. If there are such other facts they should be more definitely pleaded before an answer is required. Lipson v. Evans, 133 Md. 377; Boyd v. Shirk, 125 Md. 179.

Decree reversed, and hill dismissed with costs to the appellant.