Ulman v. Mayor of Baltimore , 72 Md. 587 ( 1890 )

McSherry, J.,

delivered the opinion of the Court.

The identical question arising on the record now before us has been passed on by this Court on several occasions, but is now presented distinctively as a Feel-' eral question. When the validity of ordinance No. 98 of 1816, passed by the Mayor and City Council of Baltimore, under the Act of 1874, ch. 218, was assailed in Mayor and City Council of Baltimore vs. Scharf, et al., 54 Md., 499, a majority of the Judges who heard that case declared the ordinance void because, among other reasons, it failed to provide for notice to, and a hearing of, the owners of the property binding on the street directed to be repaved. This municipal legislation was held to he repugnant to the organic law because, in effect, it took the property of the individual without due process of law — without giving him an opportunity to he heard either before or after the imposition of the tax. A motion for a reargument was made and granted, and three of the five Judges who heard the argument reversed the former ruling and held the ordinance to be free from constitutional objections. 56 Md., 50. The same result was reached by the same hare majority in Mayor and City Council of Baltimore vs. Johns Hopkins Hospital, 56 Md., 1. This ruling has been followed in Moale, et al. vs. Mayor and City Council of Baltimore, 61 Md., 224; Alberger, et al. vs. Mayor and City Council of Baltimore, et al., 64 Md., 1.

Ordinance No. 100 of 1886, passed under the Act of 1814, ch. 218, is now assailed upon the ground that it not only violates the Declaration of Rights of Maryland, hut likewise the fifth and fourteenth amendments to the Federal Constitution.

By the Act of 1814, ch. 218, the Mayor and City Oouncil of Baltimore were authorized to provide by ordinance for the grading, paving, and kerbing of any street in the City of Baltimore, and for assessing the cost of any such work, in whole or in part, pro rata, upon the property binding on such street, and for collecting such assessment as other city taxes are collected. By ordinance No. 100 of 1886 the City Commissioner was directed to have North avenue, between Pennsylvania avenue and the western limits of the city, graded, paved and kerbed in pursuance of the Act of 1874, ch. 218, and according to the provisions of Article 47 of the Baltimore City Code, so far as the same may he applicable, the expenses thereof to be assessed, as provided in section 34 of said Article 47, upon the owners of property binding on said avenue in proportion to the number of front' feet owned by them, respectively.* Section 34 is in these words, viz., “ After the contract has been awarded as provided in section 32, the City Commissioner shall impose a tax upon the' owner or owners of property binding on such street, lane, or alley, or part thereof, equal in amount to the whole expense of the work, and for collecting the same, being three per centum of the whole cost, except for cross streets; and he shall assess and lay the tax upon the owner or owners of property on each side of said street, lane, or alley, or part thereof, of one-half of so much of said street, lane, or alley, as may be in front of such property, except for paving the portion reserved for sidewalks, being one-fifth of the whole width on each side thereof; and the said tax shall be a lien upon such property.” After the work was completed under ordinance No. 100 demand was made upon the appellant for the sum of $4639.27, assessed upon her by the City Commissioner for her proportion of the cost of the improvement. She thereupon applied to the Circuit Court for an injunction to restrain the collection of the tax. The Court below refused an injunction, and dismissed the bill. From 'that decree this appeal has been taken.

Now, it will be observed that neither the Act of 1874. ch. 218, nor ordinance No. 100 of 1886, nor section 34 of Article 47 of the City Code, makes the slightest provision for giving notice to the parties, who may be charged with the cost of paving North avenue, that the work will be done, or that they will be assessed therefor. No notice was given'them that the ordinance .<rould be passed; no notice was given them that it had been passed, and no notice was given them that they had been adjudged to pay the whole cost of the improvement; and no opportunity was given them to contest any one of these steps in the proceeding. The entire proceeding, beginning with the Act of Assembly, followed by the ordinance, and the imposition of a lien upon the property binding on North avenue, and upon all other property owned by abutting proprietors, was, in the strictest sense of the term, purely ex parte. No opportunity whatever was given to resist this exaction, either by allowing a hearing before the imposition of the tax, or by providing for an appeal to a Court of law afterwards. The first process served upon the citizen was a peremptory demand for the payment of a burdensome lien — a judgment in rem and in personam — imposed by a municipal corporation without summons or notice or warning, and without even an opportunity to appeal. If this he “ due process of law,” the provisions of the Federal and State Constitutions, and of Magna Chart-a itself, are utterly meaningless and vain.

The Act of 1814 does not itself impose the tax for grading, paving, and kerbing North avenue. It does not fix the amount of that tax, nor the proportion thereof to be paid by the abutting owners, nor the standard by which that proportion is tobe ascertained. No legislative rule was prescribed which should govern the apportionment of any assessment. It is true that from 1182 to 1860, by various Acts of Assembly, and in-1860 by sections 845 and 841 of Article 4 of the Code of Public Local Laws, the front foot-rule was established by the Legislature; but by the repeal of those sections by the Act of 1814, ch. 218, this rule was abrogated — so far as it had been'established by legislative enactment, and so far only — and no other rule or system of valuation was substituted therefor. The entire cost of the work, the distribution of that cost between the city and the adjoining proprietors, and the establishment of a system- — whether by the front foot-rule or by reference to the intrinsic value of each parcel of land binding on the street, or by some other standard— whereby the proportion of each person- liable to contribute may be fixed, are not prescribed by the Act of Assembly, but are left, under it, to the discretion of the Mayor and City Council of Baltimore. Can that discretion he lawfully exercised by the municipality without notice to the individuals whose property rights are directly involved? In other words, are those rights, under these conditions, protected by the provisions of the Federal and State Constitutions, which, in substance, declare that no man shall be deprived of his life, liberty, or property without due process of law ?

Due process of law is not confined to judicial proceedings. The Article of the Constitution is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave the Legislature free to make any process due process of law by its mere will and pleasure. Murray’s Lessee, et al. vs. Hoboken Land and Imp. Co., 18 How., 272. There would seem to be no doubt that notice, in all such cases as the present, is required to constitute due process of law, and is essential to the validity of the assessment. Walston vs. Nevin, 128 U. S., 578; Palmer vs. McMahon, 133 U. S., 660; Spencer vs. Merchant, 125 U. S., 345; Hagar vs. Reclamation District, No. 108, 111 U. S., 701; Davidson vs. New Orleans, 96 U. S., 97; McMillen vs. Anderson, 95 U. S., 37; Stuart vs. Palmer, 74 N. Y., 183; Overing vs. Foote, 65 N. Y., 263; City of Philadelphia vs. Miller, 49 Pa., 440; Butler vs. Supervisors of Saginaw Co., 26 Mich., 22; Thomas vs. Gain, 35 Mich., 155; Patten vs. Green, 13 Cal., 325; Darling vs. Gunn, 50 Ill., 424; State, &c. vs. Drake, 33 N. J., 194; Cooley on Taxation, 265.

In Stuart vs. Palmer, supra, Earl, Judge, speaking for the Court, said: “The Legislature can no more arbitrarily impose an assessment for which property-may be taken and sold than it can render a judgment against a person without a hearing. It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his life, liberty or property without an opportunity to be heard in defence of his rights; and the constitutional provision that no person shall be deprived of these ‘without due process of law’ has its foundation in this rule. This provision is the most important guaranty of personal rights to be found in the Federal or State Constitution. It is a limitation upon an arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily be deprived of his life, liberty or property. This the Legislature cannot do, nor authorize to he done. ‘Due process of law’ is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty or property, whether the proceeding he judicial, administrative or executive in its nature. Weimer vs. Bunbury, 30 Mich., 201. This great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights.” In Spencer vs. Merchant, supra, it was held by the Supreme Court that “ if the Legislature provides for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question, what proportion of the tax shall be assessed upon his land, there is no taking of his property Avithout due process of law.” The converse of this must necessarily be true, and where no such provision is made, there would be a taking of his property without due process of law. And again, .in the same case, the Court says: “The statute of 1881 afforded to the owners notice and hearing upon the question of thé equitable apportionment among them, and thus enabled them to contest the constitutionality of the statute, and that was all the notice and hearing to which they were entitled.” The New York Act of Assembly, which was before the Supreme Court, was upheld because it expressly provided for notice to the property holders whereby they could appear and contest the apportionment. Had that feature been omitted, logically the decision must have been the other way.

As we have seen, section 84 of Article 47 of the City Code, is a general ordinance which provides, in all cases of grading and paving streets, that the whole cost shall be borne by the abutting owners in proportion to the number of front feet owned by them, respectively. Nothing could be more arbitrary than this. The cost is apportioned in advance without any reference whatever to the value of the property; but solely with regard to the number of front feet; by which rule the heaviest amount may fall on the least 'valuable property and the lightest on the most valuable. Under ordinance No. 100 of 1886, no opportunity was given the owners along North avenue to show that the apportionment was wrong; that the rule by which the amount was fixed by the city, not by the Legislature, was unjust; or that the calculations of the City Commissioner were erroneous. The property holders are condemned to pay what is exacted of them, without having been afforded an opportunity to be heard in their own defence at all. Why should the citizen 'not be allowed to contest the fairness and equality of the front foot rule, or any other rule adopted by the city, when one of tbe very conditions upon which, as we have seen, the constitutionality of the measure depends, is, that the owner shall have the right to be heard “upon the question what proportion of the tax shall be assessed upon his land?” The right to direct the imposition of such special tax upon such property rests upon the theory of the special benefits accruing to the particular property from the proposed improvement, Mayor and City Council of Balto. vs. Greenmount Cemetery, 7 Md., 536; and yet the owner is denied the right to be heard upon this very subject, though the Legislature has not itself undertaken to make the assessment, or even to prescribe the rule by which it shall be made. Some cases have held that, where the apportionment has been made by the Legislature, it is final; but, without pausing to discuss this proposition, it is only necessary to say that these cases are not applicable here, for the very obvious reason that the Act of 1814 has made no such apportionment.

The necessary result of the case of Spencer vs. Merchant, supra, is that we must return to the doctrine laid down in Scharf’s Case, 54 Md., 499, and recede from the opinion overruling that case, and asserting the opposite view.

But it has been suggested that the order appealed from should be affirmed because even had an opportunity been given to the appellant to appear and be heard before the tax was imposed, no different result could have been reached. To this we cannot agree. The constitutional guaranty belongs to the individual by right, and not by the mere favor of the Legislature or the sufferance of judicial tribunals. It is the duty of the Courts to see that this right is not invaded under any pretext whatever, when the subject is before them. Its value as a safeguard would speedily dwindle away, or, at least, become exceedingly precarious, if the privilege to assert it were made to depend upon the-belief or the opinion of a Judge that it would, if asserted, be available. It is a right of which the citizen cannot be deprived, and he may appeal to it, whatever others may think as to the result of such an appeal. “It matters not, upon the question of the constitutionality of such a law, that the assessment has. in fact been fairly apportioned. The constitutional validity of law is to be tested, not by what has been done under it, but by what may by its authority be done.” Stuart vs. Palmer, supra. But we do not admit that, had notice been given the appellant, it would have been fruitless. It might well be that she could have shown that she had been improperly assessed, and that the rule of front foot measurement, instead of an actual valuation, was as unjust and arbitrary as though adopted and applied for purposes of general taxation. That such a mode of valuation would be tolerated for the latter purposes, no one will seriously contend.

(Decided 1st July, 1890.)

In further support of the conclusion which we have reached, we refer to the opinion delivered by Judge Irving in Scharf’s Case, and to the dissenting opinion filed by Chief Judge Alvey in the Johns Hopkins Hospital Case.

It follows from our understanding of the case of Spencer vs. Merchant that the decree of. the Circuit Court must be reversed, and the cause remanded that an injunction may issue, because the assessment levied upon the appellant’s property is null and void; and it is null and void because the ordinance made no provision for notice to and hearing of any proprietor whose land adjoined North avenue, upon the question what proportion of the tax should be assessed upon his land.

Decree reversed, and cause remanded.