Burns v. Mayor of Baltimore

Miller, J., delivered the opinion of the Court. The Act of 1874, ch. 218, has made important changes in the-laws relating to streets in the City of Baltimore, and in the powers conferred upon the city authorities respecting them. Without citing the language of the Act in full, we shall state briefly what these changes are, so far as they apply to the present case, reversing the order in which they appear in the statute. 1st. The Mayor and City Council are vested with power to provide by “ generad ordinance,” for the grading, pav ²⁰¹ ing, curbing, or for the regrading, repaving and recurbing of any street or part of a street in that city, “ without the passage of a special ordinance in the particular- case,” whenever the owners of a majority of front feet of property binding on such street, or part of a street shall apply for the same, upon terms and conditions to he prescribed in such general ordinance, and for the assessment of the cost of the work, in whole or in part, pro rata, upon all the property binding upon such street or part thereof.

There is no difficulty in understanding this provision. It retains that feature of antecedent laws which required applications of adjacent property owners, hut dispenses with the necessity of a special ordinance on each application. To put in motion the power thus delegated there must still be an application by the owners who think their property will be benefited by the improvement, but the mode of making the application and all the proceedings thereon by the city officials, including the assessment of the cost of the work in whole or in part, pro rata, upon the adjacent property, may be prescribed by one general ordinance applicable to all such cases. That is the effect of this part of the statute, and Ordinance Ho. 44, of 1874, containing general provisions on this subject was passed in pursuance thereof. 2nd.

The Mayor and City Council are also vested with full power aud authority to provide “by ordinance” for the grading, paving and curbing, or for the regrading, repaving and recurbing of any street or part of a street in the city, and also for assessing the cost of “ any such work,” in whole or in part, prorata, upon the property binding on such street or part thereof. It is important to the case before us to ascertain and determine the construction and effect of this clause of the statute, and that is'the question we shall now consider. Read in connection with the other provision, it is clear the intent of this was to give to the Mayor and City ²⁰² Council power to pass ordinances in special cases for the purposes indicated, without any application hy property owners. In thus dispensing with such applications in particular cases, it differs from antecedent legislation on this subject, (which the Act repeals,) hut it is' too plain for argument that this was the purpose of the law-makers.

But the more important question then arises, does this law grant to the City authorities power to make improvements of this character for the public convenience generally, or for the benefit of the whole Oity without any motive or purpose of special benefit to property in the immediate locality, and to assess the cost of the work upon the owners of such property? If it does, then the grave question is presented, whether such an enactment would be within the scope of legislative power. No decision of any Court has yet gone to the extent of sustaining such a law, and there are many strong ones to the contrary. But in this case, we are not confronted with that question.

Eor assuming the power to exist, it would he so oppressive and unjust to exert it, that we cannot impute to the Legislature the intent to do so, unless that intent has been manifested by clear and unambiguous language. In the first case in which that clause of the City’s Charter, (Act of 1797, ch. 54, sec. 2,) which gave the power “to tax any particular district for paving the streets, lanes, or alleys therein, or for sinking wells or erecting pumps, which may appear for the benefit of such particular part or district,” came before this Court for construction, it was contended that .the word “which” related to wells and pumps only, but the Court refused so to restrict the application of this term, and said: “It is difficult to suppose that the Legislature meant to authorize the imposition of a special tax on any particular part of the City, for any paving which should not appear to be for the benefit of such part. Such a power might he attended with evil consequences, and in many cases work very great ²⁰³ injustice. Where a street is directed to be paved for the benefit of a particular part or district of the city, it is perhaps proper that such part or district should be taxed for the purpose ; but where the paving is for the general benefit, and not of the immediate district in which the street lies, it ought to be paid for out of the general fund; and there would be much injustice in imposing a special tax on the particular district for that object, which could not have been the intention of the Legislature.

And where a law is of doubtful construction, that interpretation should be given it which is pregnant with the least mischief.” Moore & Johnson’s Case, 6 H. & J., 375 . And this construction was re-affirmed in Hughes’ Case, 1 G. & J., 492 , where the Court said cc a different construction would be at war with the intention of the Legislature, as it never could have been contemplated to give to the corporation the power to tax any particular part or district of the city for any paving which was for the general benefit, and not for the benefit of the immediate part or district taxed.” The theory and foundation of all previous legislation imposing these special assessments, for improvements of this character upon the owners of adjacent property, is that the improvement is for their benefit, and that they derive such advantage from it, in the enhanced value of their property, over and above what is conferred upon the public at large, that it is just they should be specially assessed therefor, and on this ground the validity of such laws has been sustained by the Courts. We find nothing in the terms of the statute now under consideration, indicating a purpose to