Mayor of Baltimore v. Moore & Johnson , 6 H. & J. 375 ( 1824 )

Buchanan, Ch. J.

at this term, delivered the judgment, of the court. The decision of this case involves the construction of the second section of the act of 1797, ch. 54, a supplement to the act incorporating the .city of Baltimore. That'section of the act, after conferring upon the. corporation full power and' authority to enact and pass all ordinances ' necessary for paving arid keeping in repair the' streets, lanes and alleys, in the city of Baltimore, gives the further power “to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, or for sinking wells, or erecting pumps, which may appear' for the benefit of. such particular part or district.” The question arises upon this latter clause, which is, whether authority is given to the corporation to'tax any particular part or district of the city for paving the streets, lanes or alleys therein,' unless such paving shall appear to be for the benefit of that particular papt or' district! or whether the word “which*.’, relates to wells or pumps only? And we think it extends as well tó the paving the streets, lanes and alleys, as to the sinking of wells and erecting pumps. A general and unlimited paving power is before given to.' the corporation, and it is difficult to suppose that the legis-’ lature meant to authorise the imposition of a special tax, on any particular part of the city, for any paving» which' should not be, or appear'to be, for the benefit of siich part/. Sucli a power might‘be attended with evil consequences,' and, in many cases, work very great injustice. "Where a street is d 'Cted to be paved for the benefit of a particular p $rt or district of the city, it is' perhaps proper that piinb part or district should be taxed for the purpose; but where the bavins is for the general benefit, and not of the •inmiediate district m which the street lies, it ought to be |>aid for out of the general fund ; and there would be much injustice in imposing a special tax on the particular district for that object, which couid not have been the intention of the legislature. And where a law is of doubtful construction, that interpretation should be given if, so far as it can be done, width is pregnant with the least mischief. This view of the second sed ion of the supplement to the charter of the city of Baltimore, brings us to an examination of the two ordinances of the 10th of April 18Í/, on which this suir is founded. Each of these, ordinances has a preamble setting out, the purpose for which it was passed. The first, that for paving apart of Dulany-street, after reciting in the preamble that it is a public highway leading into the city, which ought to bo kept in the roost perfect state of repair, and good condition, but has become in many places dangerous to travellers passing in carriages afier dark, and that there is an imperious necessity for' having it javed, proceeds to direct the city commissioners to pave it, in order 10 remove those inconveniencies to travellers, and imposes a tax on that particular district of the city for teat purpose. The title of the'other is, “An ordinance for paving Wilkes*-street, N-asliington-sireet, Casfle-a\ley and Cozmty-street, within certain distances, and for other purposes, so as more effectually to preserve the navigation.” The preamble slat es the object to be the protection of the navigation from injury by the wash coming down the mils, and also to remove the injury 'and in» convenience experienced by many individuals from the same cause, and-that no alternative presents itself, but the paving the dreels mentioned, for which purpose a tax is imposed on the particular districts in which they lie.

If these ordinances were without preambles, though the paving directed to be done is ho where said to be for the benefit Of the particular parts or districts in which the streets lie, yet such an exercise of the special taxing power, in the absence of any thing to' the contrary, would be taken to have been in pursuance of the authority conferred by the charter. The city council would be presumed not to have exceeded their powers, but to have imposed the. tax, for that pirróse only for which the charter authorises it to be imposed; and with no other guide the mind would come to the conclusion, that it did appear to them to b.e ^01’ ^le benefit of those particular districts, and it is. not necessary that it should be expressly so stated.

But it is a settled principle, that in the exposition of statutes, every part should be taken into consideration, in order to arrive at the intention of the legislature, which, when it plainly appears, ought to prevail.' It is also a general rule, that the preamble of sl statute is a key to its-construction, and should be resorted to, to unlock the mind of the makers, but not to restrain the general words of an enacting clause, which, understood according to their'genuine and natural import, clearly and plainly express the meaning of the legislature. And the same general rules, of construction are equally applicable to the ordinances of a corporation.

In the enacting clauses alone, of th,e ordinances under consideration, not a word is to be found expressive of the opinion of the makers, that the paving directed would be, or appeared to them to be, for the benefit o.f the particular districts, they only direct the streets to be paved, and impose the tax for that purpose. And looking to these clauses alone, the mind is left to labour to discover why these particular districts are so taxed, and to conjecture that the paving appeared to the corporation to be for their benefit; but if we apply the preamble as a key, the mind of the makers is at once opened, and the intention clearly disclosed, by which it plainly appears,, that the paving was meant in one case for the benefit of travellers, and the improvement of a public highway leading into the city, and in the other, to preserve the navigation;.both of which objects were matters of general concern, and it was not considered to be for the benefit of either particular district, or intended for that purpose, and nothing is left to construction. The keeping in repair a public highway leading to the city, which is declared by the preamble to be the object of one of the ordinances in question, and the preservation of the navigation, the declared object of the other, are clearly matters of public and general concern* and in the latter case of peculiar benefit to the parts or districts of the city coiztiguous to the harbour; and there would be mucb haz'dship in taxing any particular part or district of the city for doing what is for the benefit oí Another part, or for the benefit of the whole, the burden of which should be borne by the whole. The taxing the particular districts, therefore, in this case, not for their benefit, but for the benefit and convenience of the whole city, was unauthorised, and the ordinances so far nugatory and Void.

■JUDGMENT AFFIRMED,.