Mayor of Baltimore v. Howard , 6 H. & J. 383 ( 1824 )

Buchanan, Ch. J.

at this term, delivered the opinion of the court. This case difters essentially from the case of The Mayor, &c. of Baltimore, vs. Moore and Johnson, (ante 375.) In. that case the streets were . directed to be paved, and the taxes imposed by special ordinances passed for that purpose. And in this case the paving, For which the aiaouht of the tax sued for was imposed, was determined on by the city commissioners, under the audiority of the ordinance of the 9th of March 1807, “to appoint city Commissioners, and prescribing their duties;” and it is objected, on the part of the appellee, that no such authority could, under the charter, be conferred upon them, and therefore, that the ordinance itself is void, and the proceedings of the commissioners nugatory; which maíces it necessary to inquire into the powers of the corporation in that respect.

By the ninth section of tlie charter, (1796, ch. 68,) it is enacted, “that the powers and authority vested in the town commissioners, special commissioners, and port wardens, heretofore appointed by law for Baltimore-town, except the authority of the town commissioners to hold elections ágreeably tó the constitution and form of1’government, shall cease and determine as Soon as this act shall be in forcé and operation; and the corporation of the city of Baltimore are hereby declared to possess, and may provide for the exercise of all powers and authorities now vested in thé ’said town commissioners, special commissioners, and port wardens, except' the holding elections for delegates to the general assembly.5* Now, by the sixth section of the act of 1782, ch. 17, the special commissioners of Baltimore were, or a majority of them, directed ánd empowered “from time to time, as often ás theré might be occasion, to meet and consult together respecting what streets, or parts of streets, and what lanes or alleys, were to be paved;” <'°ntract for all the materials for the purpose, and fq employ such aiid as many workmen as they should judge accessary,” &c. By that act unlimited discretionary power was. vested in the special commissioners of Baltimore, to determine what streets should be paved, &c. By. the ninth section of the charter, the corporation is authorised “to provide for the exercise” of the same power. Provide for the exercise, how? Why, if necessary, by some other person or persons, and not exclusively by themselves; the very conferring of - the power upon them, being of itself a provision for the exercise of it by them, and' rendering the express authority “to provide for.the exercise of them” unnecessary, if, by it the exercise of it by themselves is meant. The eighth section of the charter also gives “full power and authority to the corporation to, pass all ordinances necessary, to give effect and operation, to all the powers vested in them,.’?, which surely was suffient authority to them to pass any ordinances necessary to the exercise of the powers conferred by the ninth, section, no matter what these powers might he, The provision- of the mní/i-section» therefore, authorising the corporation to provide for the exercise of them, was wholly unnecessary, unless it. was intended to give them the. power to provide, for the exercise of, them by some other persons .or agents. The possessing a power, and. having authority.to exercise., a power, are one and the.same; and- the vesting in the. corporation all the, powers and authorities of the special; commissioners, was an ample provision by the legislature, for the exercise of-those,powers by the corporation, and. full authority, for'them, to do so. But “the giving a pow-, er,” and the giving authority, “to provide for the exercise., of a power,” are not.the same, but different — the authority to provide for the exercise..of a power., not being, the possession of the power itself, but a right,only tó confer it, or to authorise the exercise of it. Ip this case the intention of the legislature was not to authorise the corporation to, provide for the exercise of the powers of. the, special commissioners, by, passing ordinances giving.authority,to themselves to exercise .these powers, that authority being before fully vested, but having so clothed them with these powers, to give them the further power “to provide.for the exercise” of them, by their authorised agents, in such manner as in their judgment might be best. The exercise ofa power, and providing for the exercise of a power, are very different things. The passing an ordinance directing any P^r^cu^r street to be' paved, would be an exercise by the corporation of the power and authority transferred to them from the special commissioners, to determine what streets, shall be paved. But the passing an, ordinance, as in this case, authorising the city commissioners to meet and determine what streets shall be paved, would be a, providing, ‘-‘for the exercise,” by the city commissioners, ofthatpower originally confined t.o,, the special'.commissioners. If-the corporation hag np. right “to provide fop the exercise,” by the city commissioners or others, of the powers formerly possessed by the special commissioners, that clause of the. ninth, section of the chapter, authorising.them “to provide, for the. exercise” of these powers,' is-perfectly -nugatory, since, without it they possessed all- the powers of the special commissioners, with authority to exercise, them themselves-, (which, is the same thing, there being no difference, between the power to, do a thing, and authority to exercise the power of doing it,) and- also in the 1 anguage of the eighth. section off the charter, “full power and authority to pass all ordinances necessary to give effect, and operation, to those, powers,” and ' consequently to' make any provision, by ordinance, necessary to, their due exercise of them. The words and meaning of one, part of a statute may sometimes lgad to and furnish an. explanation of the sense of-another; and; it is a rule in th„e exposition of statutes, that one part should- be taken with another, and-the whole be, considered, together,, and so construed.as that no, clause,sentence or word, shall if it can be.avoided, be superfluous, or insignificant. The clause in question,of,. th,e ninth section of-the chapter, was intended to have gome, meaning; tp construe it to, mean, that the. corporation shall have authority to provide, for thq, exercise by themselves only of the “powers and,authority” before confided in the.special commissioners, would be to render it superfluous, provision for the exercise, of them, by the, corporation, being before made by the same section, ip conferring upon the corporation all those powers and authorities; and also the right to; provide for the exercise, of them? by the general and full power and authority given to the corporation, by the eighth section, “to pass all ordinances necessary, to give effect and operation to all the powers vegted in them.” And it cannot be falten to have been used- without meaning, but was. intended by the legislature to perform some oillcp, and by construing it to mean that the corporation may provide for the exercise of those powers by their authorised agents, or jn any manner best suited in their judgment to the end intended, it will be rendered neither superfluous, nor in.signiñean!, but a sensible effect and operation will he given to, it, not inconsistent with any of the. provisions of the charter. And other clauses of the, charter show that, to be the. sense in which it was used, by showing that it would be superfluous if dil&rently construed. The, special commissioners had pp.wer, and authority to, determine,on fhe mode, of paving, to contract for materials, and with such and as many workmen as they might judge necessary to. he employed; the same power is vested in the corporation. And can it be said, that they have no right to authorise the city commissioners, or other agents, to exercise that power? If1 they have fhe right, and if-they can authorise the city commissioners to contract for, materials for paving, to determine on the mode of paving, and to. contract with such workmen as they may judge necessary, why may not the,, corporation empower them to determine what streets shall be paved? One equally with the other, is apt employment, of the mind, an exercise of the judgment. Why can they 5‘provide for the exercise,” by the city, commissioners, of one of the.powers of the special commissioners more than another? Is there any thing in the charter authorising such a discrimination?. If there is, we have not been able to discover it. Moreover, by the second section of the, act of 179T, ch. 54, the supplement to the charter, “full, power and authority are ghyen to the corporation to pass all'laws and ordinances necessary for paving and keeping in repair the streets.”. This is a general and sweeping power, an absolute discretionary power to pass any ordinance which in their judgment may be, necessary for paving the streets, &c. In the exercise of which, it is not required of them to incorporate, in, any ordinance they may pass, a declaration or expression of their opinion of the necessity for passing it. The ordinance itself, if nothing appears to the contrary, must in general be, taken as evidence of ■ their\ thinking it necessary; yet if it should appear upon the face of it to be,unnecessary, it would in such case be an excess of authority, and void. But is that the case here? All ordinances are passed by the city council, whp sit only a. year, and though it is true they may be convened by the ^y01' whenever, in his opinion, the,public good may re-. quire it, yet there is an expense and inconvenience attending their frequent meetings, that would be burdensome to the city, and vexatious to the individual members, of the pity council, which it may be expedient, to avoid, and which the ordinance in question is. calculated, and was probably intended to obviate, the city commissioners being by it directed to meet twice in, every month, who .are thus enabled to provide for exigencies as., they may arise. And there may be a necessity, every month in. the year, or oftener,'for paving-or repairing some street or.other in the city, whiph could not well be attended toby the city council. If then such an ordinance was necessary for paying and keeping in repair the streets,, it was authorised, by the general and full power given by the supplement, “to pass, all laws and ordinances necessary, &c,. and is free from the objection, that it delegated t,o the city, commissioners powers which the corporation had no right to. transfer. It is not a power to imposea duty, orto make a. law directing a street to be paved, that the corporation could not delegate, and can only exercise themselv.es, but merely.an authority-to ascertain, as the agents of the corporation, what> streets ought to.be paved,

The original act, and the supplement, are to be consider-, ed as one system, and the provision of the ninth section ofi the former, authorising the, corporation “to provide for the. exercise” of, the powers of the s.pecial commissioners, and. the general power given, to them by the latter, to. pass, all ordinances necessary for paying and keeping in repair the. Streets, &c. to be construed as if they formed one section, or clause, giving full power and authority “to provide for the exercise” of all the powers and authorities which had. been con&ded to the special commissioners, by passing any ordinances necessary for paying and. keeping m repair tiie streets, &c. And so construed, the passing an ordinance, empowering and directing the city commissioners to meet from time to. time, to.ascertain and.determine, (which is all that the ordinance does,) as the agents.of the corporation,, what streets,1 &c. ought to. be payed or repaired, will be found to be no abuse or excess ofpowerbythe corporation. But in truth there is no discretionary power delegated, to the city commissioners to say what streets, 64c.. shall be Ji&Véd. The language‘of the ordinance is “that the city commissioners, or a majority of them, on the first and third Moudays in every month, at such time and place as they may appoint, shall meet and consult together, respecting the levelling, pitching, and paving or repairing the streets; &c. within the city;” “and that the said commissioners may, with the approbation of the mayor, from time to time, proceed to the paving of such streets; &c. only, as a majority of the proprietors and tenants inhabiting (hereon shall re« quire.” The directions to the commissioners are to meet Kind consult together, but with authority to pave no street without the approbation of the mayor, nor unless it shall also be required by a majority of the proprietors and tenants inhabiting thereon.

Thus the approbation of the mayor, and the request of a ¡majority of the proprietors and tenants, are made a rulo for the government of the commissioners. They are made the evidence (by which the commissioners are to be governed,) of the propriety of paving any street, in the absence of which they cotild proceed to pave none.

It is a determination of the corporation, expressed by ordinance, that the approbation of the mayor, and the request of a majority of the proprietors ami tenants inhabiting thereon, is sufficient evidence of the propriety of paving a street, with authority only to the commissioners to proceed under such circumstances to the paving of it.

It was not denied in argument, and is therefore taken as conceded, that the authority given to the commissioners was in this case regularly pursued. As to the tax, it was not, as lids been imagined, imposed by the commissioners; they had no authority to do so, nor could the corporation confer upon them such a power, but it was imposed by the ordinance itself, and the assessing and levying of it bv them, as directed by the ordinance, was only an apportionment of it — a mere matter of figures and calculation, a ministerial act to carry the law into effect, which it was the duly of the commissioners to perform. In the case of The Mayor, &c. of Baltimore, vs. Moore and Johnson, it was held, that the corporation could not tax any particular part or district of the city for paving, unless such paving appeared to be for the benefit of that particular part or district. But in any ordinance directing a street to be paved, and imposing a tax on the district for that purpose, it need not be stated to bé for the benefit of such district; but Will bé so takeh if nothing appears to the contrary; , , Here the paving was under the authority Cí a general ordinance;, on the Application of a majority of the proprietors arid tenants residing on the street, and with the approbation óf the mayor, as required by the ordinarice.-Thd paving of streets is prima facie fdi‘ the benefit of the parts or districts óf a town through which they pass, arid moré ©Specially whétt applied for by á majority of the immediate inhabitants; anti in directing a tax td be levied on such districts for that purpose, the corporation must be considered as haying acted on that principle,- nothing ¿ppeárihg in the ordinance to the contrary; And though in particular instances it iriay turn out not to be practically for the benefit óf thé immediate district, yet that cannot affect the validity of the ordinance, which had such benefit in view. The objection that the application to the commissioners to have the street in question paved, was riot made By the proprietors of a majority of the property lying on thé street, cannot life sustained;' it was made By a majority of the proprietors and tenants inhabiting thereon, in the language of the ordinance, Arid the act of 1817, ch¡ 148, s. 18, declaring “that the mayor and city.Council shall not be authorised to cAuse any uhpav.ed street* &c. to be paved, without the assent, in writing* of the proprietors of a majority of the ground binding and fronting on such street*” &c'. must be understood as having a prospective operation only, and not applying to this case, the assess* ment having been made, and a list of the persons liable to pay.thé tax, with the amount to be paid By each person, delivered to the city collector for‘collection, and contracts also entered into for paving the street, before the law was passed. ‘ .

The objection that the ordinance of the 9th of Marcfe -1807 does not designate the persons who aré, Hablé to pay the paving tax* at first view has more force; but however strong it might be considered* construing the ninth section by itself* it must yield to the principle, that all statutes made in pari materia are to be taken and construed together, as if they were one system. 6 Bac. Ab. tit. Statute, 382. Rex vs. Loxdale, 1 Burr. 447. Curch vs. Croker, 3 Mass. Rep. 21. And that though not expressly referring to each other* and even after' one has expired or been repealed. By the first section of the ordinance of the 6th of March 1800, it is directed that the taxes imposed for paving any street, &c. directed to be paved, shall be levied and collected from the owners of lots on each side of such street} thus clearly designating the persons who are to pay such taxes. This ordinance was repealed by the ordinance of the 10th of April 1807, but Vías in lull force when the ordinance of the 9th of March 1807 was passed, and therefore to be considered as in the view of the city council at the time, and being in pari materia, is to be taken together with the ordinance of the 9th of March 1807, which so taken together, must be construed as if the provision of the ordinance of the 6th of March 1800, designating the persons liable to pay the tax, was transcribed into it. And so construed, “the owners of the lots on each side of a street, directed to be paved,” are designated by the ordinance as the persons liable to pay the tax, and the duty of the commissioners, in making out the list, is merely ministerial. The circumstance, that the ordinance ef the 6th of March 1800, has since been repealed, does not aifect the construction of the ordinance of the 9th of March 1807. Whatever was the intention of the makers at the time, furnished the rule of construction, and whatever was the correct and legal construction then, is the true construction now, the -construction of a law, being the law itself. It is said that the ordinance of the 29th of April 1797, may as well be called in aid of the construction of the ordinance of the 9th of March 1807, (the language being the same,) as the ordinance of the 6th of March 1800. But the ordinance of the 29th of April 1797, is virtually repealed by the ordinance of the 6th of March 1800, which provides a different mode of assessment, and that new mode of assessment is adopted by the ordinance of the 9th of March 1807, which show's, that it was to the ordinance of the 6th of March 1800, then in force, that the city council looked when they passed the ordinance of the 9th ofMarch 1807.

There is nothing in the objection, that it does not appear that the return directed by the second section of the ordinance of the 9 th of March 1807, to be made by the clerk to the register of the city, of the proceedings of the commissioners, was ever made. The omission to do so, although an act of negligence, does not vitiate what was COrrectly done', or exonerate tlié appellee from the payment óf the tax imposed; the liability to which did Hot in any manner depend upon the discharge; by the clerk or the commissioners, of that bHih'ch of their duty, but was 'created before, and existed independently of it.

Thé objection thát the action was improperly conceived; is founded on the tenth section of the act of 1796, the act of incorporation, which authorises the collection of the taxes imposed in virtue of that afct, by distress or action of debt, on the supposed ground that they can be recovered in no other way. But the tax in this case ivas imposed under the supplement; the act of 1797; eh. 5A\ which authorises the tax, but gives ho remedy; ánd whéré ho particular remedy is given, the action of assumpsit will lie, oh the principle, that where the taw gives á claiiri to one 'agáinst another, it raises an implied assumpsit on the legal obligation to pay; But if the tax in question was in fact ihiposed in virtue of the original act of incorporation, it would make no difference; for thé giving a remedy by distress or action of debt, is cumulative ohly, and doés not táke away the actiun arising by implication on the legal obligation to pay a claim treated by law.

We are upon the whole of opinion, that the áppeÜants áre entitled to recover, and therefore reverse the judgment j.

JUDGMENT REVERSED.