State ex rel. Henderson v. Taylor ( 1883 )

Alvey, J.,

delivered the opinion of the Court.

This was an application for a writ of'mandamus against-the Register and the Collector of the City of Baltimore, to compel them to do certain acts and to take certain proceedings for the collection of certain assessments made upon property for local improvements, and in which assessments-the relators allege themselves to be interested.

It appears that on or about the 13th of December, 1877, the Street Commissioners’ returns, consisting of books and papers, showing the amounts of the various assessments made on property benefited by reason of the opening of Eden Street, were placed in the hands of the City Collector, in order that he might proceed to the collection of the assessments, in the mode provided by the ordinances of the city. The Collector did proceed to notify the parties of the assessments upon their property, as directed by the ordinance, but only a small portion of the assessments was paid as required by the notice. He did not, however, proceed to advertise and sell the property of the delinquents, as directed by the ordinance upon the subject; but the relators, after the lapse of a considerable time, came in and paid all such outstanding and unpaid assessments, as parties not claiming title to the property assessed, and now seek to have enforced the assessments so made, by advertisement and sale.

Section 12 of Art. 47 of the City Code, provides, that the City Register, within ten days after receiving the returns of the Street Commissioners, shall transfer such returns to the Collector, “who shall proceed forthwith to notify the parties assessed for benefits, by means of bills specifying the several sums so assessed, and warning them that if the same be not paid within six months from the date of such transfer of said Commissioners’ returns, he will proceed to sell the specified pieces or parts of property on which such unpaid sum or sums of money shall have been assessed,” in the manner as provided in the next succeeding section.

The next succeeding section, being section 13, provides, that if the sums assessed “ shall not be paid within the time above limited,” the Collector shall sell the property assessed, after not less than thirty nor more than sixty days notice; “said notice to be published within ten days after the expiration of the time limited in section 12, for the payment of said benefits;” and the money when collected is required to be paid over to the Mayor and City Council, to be by them paid over to the persons entitled to receive the same.

By section 16 of the same Article of the City Code, it is declared and ordained that all sums of money assessed by the Commissioners upon property deemed by them to be benefited, “shall be and continue liens on each several piece of property so assessed, to the amount of its particular assessment, until the same shall be paid to the city.” And in the next succeeding section it is provided, that “ Any person or persons, not claiming title to any lot or piece of property upon which, any sums shall he assessed, as aforesaid, may pay the amount of the sum so assessed, within the time limited, to the Register of the city, and obtain his certificate of having paid such sum without, claiming title to the property; and such payment shall vest in the person or persons paying, his, her or their heirs, the lien on such lot or property mentioned in section 16, of this ordinance.”

It will he observed that the summary mode of collection of the assessments by sale of the property assessed, is prescribed with particularity ; and as it is a special power, dependent for its existence and validity upon the terms of' the ordinance passed in pursuance of authority delegated to the city, it must he exercised in the mode and manner, and under the limitations prescribed in the ordinance, and in no other way. If, therefore, the time has past, or there-he any other conditions that cannot now he complied with, the summary power of sale no longer exists, and, consequently, could not he directed to be exercised by mandamus. In such case, the city would have to resort to the-ordinary remedy by actions at law for the recovery of the-assessments; and such actions, if not barred by limitations, could he maintained in the name of the city for the use of the' relators, as equitable "assignees. Dashiell vs. City of Baltimore, 45 Md., 615.

But apart from this difficulty in the way of obtaining relief by mandamus, there is another equally formidable.

It appears that the heirs of John Henderson, deceased,, were allowed damages to the amount of $30,275, for property condemned for the opening of Eden Street; and not. having received their money, they arranged with the City Collector, on August 1st, 1879, to pay, by way of deduction from the damages due them, the amount of the assessments for benefits then outstanding and unpaid by the parties whose property had been assessed. They received the amount of the damages awarded them, less the amount of the unpaid assessments for benefits; and this was nearly twenty months after the Commissioners' returns had been placed in the hands of the Collector to enable him to make the collections under the ordinance.

Now, in the very nature of things, there should be some time limited within which a party, a mere volunteer, not interested in or claiming title to the property assessed, may come forward and pay the assessments upon the property, and have the lien transferred to him, under the ordinance ; for otherwise the privilege might lead to great abuse. The ordinance does prescribe a limitation; for it expressly provides that such party may pay the amount so assessed, within the time limited, and obtain the certificate of the Register of the city, and such payment shall vest in the person so paying the lien on the property assessed. If the words “ within the time limited" have any meaning, or were intended to impose any limitation at all, as they plainly import, it must be that such payment shall be made within the six months given to the parties to pay the assessments under the notice of the Collector, or, at most, within the time before a sale of the property could take place under the ordinance, according to the course of proceeding prescribed thereby. Otherwise there would be no limitation upon the exercise of the privilege, and the words recited from the ordinance would be meaningless ;—a construction that would do violence to the manifest intention of the framers of the ordinance. And the right thus to pay the assessments and acquire the lien being a special privilege, founded upon the ordinance, it must be accepted and exercised according to the terms and limitations under which it is conferred, and not otherwise. Payment to the city of the amount of the assessments, by a third party, after the time limited, might, possibly, operate as an equitable assignment of the amounts due on the assessments; but that would not be a right that could be enforced by mandamus. For it is a settled doctrine in the law of mandamus, that the party applying must show a clear legal right in himself, and a corresponding imperative duty on the part of the defendant; and without the establishment of such clear legal right and duty, there is no ground shown for mandamus. The Court below appears to have been of opinion that the payment of the assessments by the relators was not within the time prescribed by the ordinance, and that therefore they were not entitled to mandamus to compel the Register to give the certificates of payment, and the Collector to proceed to advertise and sell the property assessed; and as we concur in that view, and discover no error in the refusal of the writ, the order appealed Rom will be affirmed.

(Decided 5th February, 1883.)

Order affirmed.