Mayor of Baltimore v. Ulman , 79 Md. 469 ( 1894 )

Boyd, J.,

delivered the opinion of the Court.

In the year 1887 the authorities of the city of Baltimore graded, paved and curbed. North avenue, between Pennsylvania avenue and the western city limits. This was done under what was known as “ Ordinance No. 100 of 1886,” passed under the supposed authority of the Act of 1874, ch. 218.

In Ulman vs. Mayor, &c., of Baltimore, et al., 72 Md., 587, this Court decided that the assessment levied on Mrs. Ulman’s property under that ordinance was null and void, as it “ 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,” and hence was taking property without due process of law. The majority of the Judges who sat were of the opinion that the case of Spencer vs. Merchant, 125 U. S., 345, was applicable, and being a Federal question, this Court was bound by it, and hence felt constrained to overrule a number of cases which had been decided by this Court.

The Legislature at its first session after the decision of the Uhnan case passed two Acts, ch. 219 of the Laws of 1892, being amendatory of sec. 810' of Art. 4 of Public Local Laws (which was a codification of Act of 1874, ch. 218), and ch. 284 of the Laws of 1892, authorizing the Mayor and City Council of Baltimore to levy special assessments, and to provide for the collection thereof, upon property binding on any street, &c., which had been graded, &c., under any ordinance which provided for assessing the whole, or any portion of the costs of such work upon the property binding on such street, &c., and which assessments for any cause had not been fully collected.

The Mayor and City Council passed an ordinance known as “No. 84 of 1893,” which, after referring in the preamble to the passage of Ordinance No. 100 of 1886, what was done under it, the decision of this Court declaring the assessment null and void, and to the passage of ch. 219 (claimed by the appellant to mean ch. 284) of the Act of 1892, in substance directed:

1. The City Commissioner to give ten days’ notice, in two of the daily newspapers published in Baltimore, that at the time and place mentioned he would ascertain and determine the amount of tax to be assessed upon all the property binding on North avenue, between Pennsylvania avenue and the western city limits, upon which the assessment levied under Ordinance No. 100 had not been paid, for the special benefits which had been derived by said property for the grading, &c., of said portion of North avenue; that after hearing all persons interested, who desired to be heard, he shall proceed to apportion among the different pieces of property binding on said portion of North avenue, upon which the assessment levied under Ordinance No. 100 wafe not paid, the total cost of the grading, &c., of said portion of North, avenue, with interest thereon from the time the claim was paid by the city to the day he made such apportionment, less the amount paid by those who had paid under Ordinance No. 100, provided the tax assessed against any piece of property should not be more than the amount which the said property had been specially benefited by the grading, etc., of said portion of North avenue; that he might adjourn from time to time to give all parties an opportunity to be heard, and after the hearing he was required to make out a list of the property and the owners, together with the amount to be paid by each pieco of property, and deliver a copy with an explanatory plat to the City Register, and then provided that such taxes should be liens.

2. That the City Register, within five days after the proceedings were left in his office, should notify all persons interested, by advertising once a week for two successive weeks in two of the daily newspapers in the city, that the said assessments and explanatory plats had been so placed in his office, and that the parties affected thereby were entitled to appeal to the Baltimore 'City Court.

3. That the City Commissioner should serve written or printed notices on each party so assessed or taxed, but that service of such notice should not be construed a prerequisite to the collection of the tax.

4. That any person dissatisfied with any assessment in which he was in any manner interested could appeal to the Baltimore City Court, where the proceedings should be similar to those in the case of trials of street appeals, and the same right should be had to appeal to the Court of Appeals.

5. That within ten days after the time limited for appeals, or after the decisions in case of appeal, the City Register should turn over the lists to the City Collector, who should proceed in all respects as he does in cases where persons or property are assessed for benefits for opening, closing, etc., any street, lane or alley.

The appellee filed a bill, giving a history of the several Acts of Assembly and ordinances, alleging that the City Collector was about to sell her property for the want of payment of the assessment alleged to have been made under Ordinance No. 84, and claiming that the Act of 1892, cli. 284, and Ordinance No. 84 were null and void.

The bill prays that said Act, Ordinance No. 84 and assessment under it be declared null and void; that all the proceedings in making said assessment be vacated and set aside; that the appellant and City Collector be enjoined. A number of objections to the Act of Assembly, ordinance and proceedings thereunder are stated in the bill which will be hereinafter passed upon.

The appellant filed its answer admitting for the most part the history of the proceedings as stated in the bill, but alleging that the Act of Assembly, ordinance and all proceedings under them were valid.

The ease was submitted to the Court below (Dennis, J.) on the bill and answer, and a decree pro forma was passed declaring Ordinance No. 84 and the assessment thereunder null and void, and perpetually enjoining the collection of the assessment.

From the pro forma decree an appeal was taken by the city.

Some of the objections urged by the appellee questioned the validity of ch. 284 of the Act of 1892 and Ordinance No. 84, whilst others only apply to the method of proceeding on the right to recover, if the statute and ordinance be valid.

As the former class of objections attack the very foundation of the assessment, we will consider them first, without attempting, however, to wholly distinguish the two classes on some points raised.

The first question that naturally suggests itself is, had the Legislature power to pass any statute to accomplish the purpose indicated in the preamble of this Act? The case of Spencer vs. Merchant, supra, clearly establishes that it had. It is not necessary to discuss how far such a law could affect property that had been bona fide transferred from the owner of the property at the time the work was done to some one who had no notice that the property was liable to such a claim, as in this case the title remained in the person whose property is alleged to have been specially benefited.

We must therefore go a step further and inquire into the validity of this particular statute. In the opinion delivered on the motion for a rehearing in Ulman’s case we expressly stated, on pages 610 and 611, that there was ample power in the original Act of 1874, ch. 218, to enable the city to pass ordinances that would not be subject to the constitutional objections passed on in that case. On page 593 it quoted from Spencer vs. Merchant, where it was said 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 on his land, there is no taking of his property without due process of law.” And on page 594, in further quoting from that case, it was said: “The statute of 1881 (being the one in controversy) afforded the owners notice and hearing of the question of the 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 icere entitled.”

The Act of 1892, ch. 284, authorized the appellant “ to provide by ordinance for the levy and collection in such manner as they may deem proper, of a tax upon all the property binding on any street, lane or alley, or part thereof, which may have been so improved, to the extent that such property shall have been specially benefited by such improvement; provided that no property upon which the assessment originally made for its share of the cost of such improvement shall have been paid, shall be again assessed.” The requirements of the Act are to take the total assessment formerly made for improvements, then deduct' the amount paid, and assess thé balance on the properties within the defined limits, to the extent that they have been respectively specially benefited by the improvement.

That was as certain as if the Legislature had named a definite sum to be assessed on those who had not paid, on North avenue or any other street where a similar condition of things existed. The objection of the appellee that no hearing is given by the statute as to the aggregate sum to be collected, was raised and distinctly answered in Spencer’s case on page 558. The Act of 1892 further provides “that reasonable notice and an opportunity to be heard shall be given to all persons interested, before the final ascertainment of the amount of tax to be paid by any such property.” It required appellant to provide for appeals to the Baltimore City Court from the decision of any commissioner, or other person appointed to determine the amount or amounts of such special taxes or assessments, and also for the right of appeal to this Court. The ordinance, as shown above, provided for ample notice. Ulman’s case on page 611 authorizes notice by summons or through the newspapers.

Thus we see that the appellee had ample opportunity to have a jury pass upon the assessment against her property, as well as to have the Court below, and this Court on appeal, determine the legality of the proceedings, including the validity of the statute and ordinance. We are of the opinion that Spencer vs. Merchant and the former case between these parties, fully sustain the validity of the statute, and also of the ordinance unless there be some technical objection to the latter.

We will now pass upon the other class of objections urged by the appellee.

Without meaning to decide that the appellee could in a bill for an injunction, properly ask the benefit of the statute of limitations, we have no doubt that it is not a bar to. the assessment. It was only made a few months before the bill was filed, and no action accrued until the right to sue on it had matured.

It is contended by the appellee that inasmuch as Ordinance No. 100 was declared to be null and void, the grading, paving and curbing of North avenue were without any legal sanction and void, and that no valid assessment for the cost thereof could consequently be made. The case of Spencer vs. Merchant, so frequently cited by us, because we deem it conclusive on many of the points raised in this case, would seem to dispose of that objection. The case of Mayor, &c., of Baltimore, et al. vs. Porter, 18 Md., 301, cited by appellee’s counsel, certainly does not sustain his contention. There the city authorities undertook to correct the errors which the Court had determined had made the proceedings void, by passing an ordinance to confirm the grading and to ratify the acts of the City Commissioner. This Court on the page cited shows very clearly that that ordinance was not of binding force, because of its “ not being authorized by any law.” And in Horn vs. Mayor and City Council of Baltimore, 30 Md., 222, which was a suit against the city for injuries done to his property in grading that avenue, the Court decided that the city was not liable, as thé acts done were ultra vires.

In referring to the ordinance above mentioned, it said: “If the act was void, because ultra vires, and they had no power to authorize it before it was undertaken and commenced, they certainly had no power to adopt it after it was done.”

Nor can we agree with the appellee’s counsel that because Ordinance No. 100 was determined to be void, the Act of 1892,' so far as applicable to the assessment, was unconstitutional, null and void, being an exercise of judicial powers in violation of the eighth and twenty-third Ar-tides of the Declaration of Rights. To sustain this he cites Mayor, &c., of Baltimore vs. Horn, et al., 26 Md., 206. After the decision in Porter’s case, which also disposed of a similar case of Horn et al., the Legislature undertook to authorize the city to collect the same assessments that this Court had determined could not be collected.

As was said in Horn’s case, in referring to that Act of the Legislature, “it, in effect, and that most plainly, reversed the judgment of this Court.” Of course that could not be permitted. But that was not what was done in this case. This Court, simply determined that the ordinance and assessment then in controversy were null and void, and in pursuance of the decision the ¡Court below so decreed, and enjoined the appellant and its collector from collecting or in any way enforcing said assessment. The Act of 1892 provides for the collection of an assessment to be made to the extent that the property was specially benefited — not the original assessment but a new one, and not necessarily the same amount, for it might have been very different if the appellee had seen fit to appear before the commissioner or submit her case to a jury. As is said in Mills vs. Charleton, 29 Wis., 400, “the original proceedings having failed for reasons which the Legislature may lawfully obviate, and the basis for taxation still remaining, namely, the public benefit for improvement received, for which the Legislature says the property of the citizens shall pay, a reassessment may be authorized.” But on this point we might also have contented ourselves by referring to Spencer vs. Merchant.

Considerable stress has been laid on the point made by the learned counsel for the appellee that the ordinance is void by reason of the failure to give the ten days’ notice required by the Act of 1892, ch. 219, to be given before the passage of an ordinance requiring the cost of grading, fee., streets to be assessed upon the property. He first notes the fact that the ordinance itself refers to that chapter. It is true that in the preamble reciting the source of the authority of the city to pass the ordinance, it is stated, “ Whereas, by chapter 219 of the Acts of 1892, full power and authority is given,” etc., but the rest of the preamble itself shows conclusively that it was a mere clerical error, and that ch. 248 was intended. But if this were not so, a misrecital in an ordinance of the source of the power of the municipality could not affect its validity, if in point of fact the power to enact it existed. The real question raised by this point is whether or not ch. 219 is applicable to Ordinance Yo. 84 so as to require the notice therein provided for. Chapter 284 of Laws of 1892 was passed four days after chapter 219. It did not pretend, and was evidently not intended, to repeal ch. 219, which simply amended the local law of the city providing for the grading and improving of any street, alley or lane after it was opened. A careful examination of the two chapters convinces us that the notice required in ch. 219 is not and was not intended to be applicable to ordinances passed in pursuance of chapter 284. Chapter 219 gives the appellant power to provide by ordinance for improving streets as therein stated, and for assessing the cost of any such work, in whole or in part, upon the property binding upon such streets and for collecting the assessment, “provided that before the passage by either Branch of the Council of any ordinance requiring the whole or any portion of the costs to be assessed upon the property, ten days’ notice shall be given,” &c. It is perfectly apparent that this legislation only applied to ordinances for such grading or other authorized work as was to be done after the passage of the Act. The object of the notice was to give an opportunity “to all persons interested therein to appear and be heard before some appropriate committee of the Council” as to the grade, character of work, whether the cost should be wholly, or in part only, borne by the property binding upon the street, whether the work should be done at all, etc. That Act provided for ordinances for the work, as well as for the assessment and collection of the costs thereof, whilst chap. 284 provides for the assessment and collection of the costs for work already done by the city. Hence the latter Act only required a notice before the final ascertainment of the amount of tax to be paid by any such property.

The position that the Act of 1892, chap. 284, and Ordinance Ho. 84, only applied to cases where valid assessments had been made is not supported by a reasonable construction of the Act. It does not use the term “valid, assessments,” and if it was intended to apply only to assessments that were valid, it would have been of but little, if any, use, as the Act would not be necessary to enforce valid assessments.

The question raised as to the interest charged need not be passed upon by us further than to say that, as we have held the statute and ordinance valid, a Court of equity could not give the complainant relief for any such alleged irregularities. She had the right to make such objections before the tribunal provided for under the ordinances, but not collaterally or by such a proceeding as this. The cases to that effect are very numerous in this State. We will only refer to O’Neill, et al. vs. Virginia and Maryland Bridge Company, 18 Md., 1; County Commissioners of Alleghany County, et al. vs. Union Mining Company, 61 Md., 548, and Greenland vs. County Commissioners of Harford County, 68 Md., 59.

We have considered at some length the points raised by the bill that have been pressed by counsel, with the exception possibly of one or two, which are disposed of by what we have said above, or at least are met by the case of Spencer vs. Merchant.

There is still another question which was presented in argument, although not given in the bill, as a reason for the interposition of a Court of equity. That is the right of the City Collector to sell the property of the appellee.

(Decided 21st June, 1894.)

The Act of 1892 authorizes the city “to provide by ordinance for the levy and collection in such manner as they may deem proper of a tax upon all the property binding,” etc.

The ordinance, after requiring the list to be placed in the hands of the City Collector, directs him to “ thereupon proceed in all respects as he does in cases where persons or property are assessed for benefits for opening, closing, widening and straightening any street, lane or alley.”

Section 806 of Article 4 of Public Local Laws is the statute law on the latter subject. It does not prescribe the mode of procedure for the collection of such benefits, but authorizes the appellant “to enact and pass all ordinances from time to time which shall be deemed necessary and proper to exercise the powers and effect the objects above specified.”

Prom an examination of the ordinances of the city of Baltimore, we find that the appellant has full power to sell for benefits for opening, closing, widening and straightening any street, lane or alley. Hence the appellant has full and ample power to sell the property of the appellee for the assessment made under Ordinance No. 84.

It follows from what we have said we must reverse the pro forma decree, the injunction must be dissolved, and the bill dismissed.

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