Alberger v. Mayor of Baltimore

Alvey, C. J., delivered the opinion of the Court. The bill in this case is filed by a large number of owners of property abutting on Baltimore street, in the City of Baltimore, to have enjoined the collection of special assessments made on their property by the city authorities to pay ⁴ for the regrading, repaving, and recurbing of that part of Baltimore street between the east side of Greene street and the west side of Gilmor street. The objection taken to the assessments is, that they were made, or attempted to be made, in a manner that is without warrant of law, and under an ordinance that is unconstitutional and void. The ordinance in question is that designated as No. 6 of 1883, and by section 1 the City Commissioner was “authorized and directed to have all that part of Baltimore street, from the east side of Greene street to the west side of Gilmor street, repaved with Belgian block pavement, and recurbed with, six inch curbing, and regraded where the same may be necessary,” etc., one-third of the cost to be paid by the city, “and the other two-thirds thereof to be assessed, as provided in Article 47 of the City Code, title ‘ Streets and City Commissioner,’ subtitle ‘ Grades, Grading, Paving,’ &c. upon the owners of the property binding on said portion of Baltimore street, in proportion to the number of front feet owned by them respectively, on the portion of said street hereby directed to be repaved, regraded and recurbed where necessary.” And by section 2 it is provided, “ that all the proceedings under this-ordinance shall be the same as under Article 47 of the City Code, title ‘ Streets and City Commissioner,’ sub-title ‘ Grades, Grading, Paving,’ ” &c., so far as the provisions of said Article are applicable thereto, except 'that the City Commissioner shall be required to advertise for proposals for furnishing the stone only, and that the work of laying the same shall be done under the direction and supervision of said City Commissioner, by labor employed by the day, and paid for as other day labor employed in said City Commissioner’s Department is paid.” It appears that after the passage of this ordinance the City Commissioner advertised for proposals to furnish one million of granite paving blocks, that number being re ⁵ quired for various improvements on hand, including that provided for by the ordinance just recited.

Contracts were duly made for the same, with the lowest responsible bidders ; and in like manner proposals for curbstones and gutterstones were advertised for such amounts as would be required for the year, and contracts therefor were awarded to the lowest responsible bidders. The City-Commissioner then proceeded to repave and recurb the part of the street described; and after its completion assessed the abutting owners on the street with the proportion of the cost of the improvement as directed by the ordinance. It was to prevent the collection of such assessments that this suit was instituted. Answers were filed to the bill and testimony was taken, and upon hearing a decree was passed dismissing the bill; and it is from that decree that this appeal is taken.

The bill makes no charge of fraud or collusion of any kind ; but the complaint is founded exclusively upon what is supposed to be an illegal method of proceeding, and the alleged unconstitutionality of the ordinance. The ordinance, in some respects, seems to be a departure from the long established method of proceeding in the matter of paving and repaving the streets of the city. Heretofore it has been the practice, and it is so provided in Article 41 of the City Code, for the City Commissioner to advertise for proposals for doing the work of improvement, and to award the contracts to the lowest responsible bidders. This is the mode provided by section 32 of the Article of the City Code referred to; and after thus contracting for the work to be done, the Commissioner is then authorized and required, by sections 34 and 35, to proceed at once to impose a tax or assessment, and to make out and furnish a list of the persons liable for the amounts assessed.

But the special ordinance in question has provided only for advertisement for proposals to furnish the material for the work, and has required the work to be ⁶ done, under the direction of the City Commissioner, by the employment of labor by the day; and, of course, no assessment could be made until after the work was completed and the cost ascertained. This, however, is a matter that rests exclusively in the discretion and judgment of the legislative branch of the city government, and is not within the control of the Courts. The Act of the General Assembly of 1874, ch. 218, under which this ordinance was passed, simply confers the power on the city, in general terms, to provide by ordinance for paving and repaving the streets, and makes no provision as to the manner of having the work done, whether by contract or day labor. That is a matter that has been left to be regulated entirely by the city authorities.

And so in regard to the necessity or expediency of having the work done. Under the power delegated by the Act of 1874, ch. 218, the discretion exercised by the City Council in regard to the propriety or necessity of the improvement provided for by the ordinance cannot be controlled by the Courts. It is only where the power is exceeded, or fraud is charged and shown to exist, or where there has been a manifest invasion of private rights, that the remedial and corrective power of the Courts can be sucessfully invoked. In 1 Dill. on Munic.

Corp. (3rd Ed.) sec. 94, it is laid down as text law, that “where the law or charter confers upon the City Council or local legislature, power to determine upon the expediency or necessity of measures relating to the local government, their judgment upon matters thus committed to them, while acting within the scope of their authority, cannot be controlled by the Courts. In such case the decision of the proper corporate officers is, in the absence of fraud, final and conclusive, unless