Holland v. Mayor of Baltimore

Lje Grand, C. J., delivered the opinion of this court. This is an appeal from an order of the circuit court for Baltimore city, dissolving an injunction. The case may be thus stated: the appellant, at the time of the institution of proceedings, was the owner of a lot of ground on the east side of Hollins street, in the city of Baltimore. That street was paved, and a portion of the expense incurred was assessed against the appellant, who, refusing to pay it, a distress was levied, in the name of the Mayor &- City Council of Baltimore, on the property found ¹⁹⁵ on the premises.

The appellant sued out a writ of replevin, and, subsequently, filed the bill in this case, to restrain the further proceedings of the appellees to collect the amount alleged to be due by him for the paving in front of his lot. There is no question in regard to the fact of the paving having been done, nor is there any as to the ownership by the appellant of the lot, for the paving in front of which he has been sought to be charged. These facts are conceded. Without stating circumstances which were relied upon in the argument, but which, in our opinion, have nothing to do with the decision of this caso, we will advert to the grounds on which rests the equity set up in the bill.

They are these: Holland and Cassard, owners of lots binding on the street, did not sign a recommendation to the city commissioner of the city of Baltimore, asking that the street might be paved. Gen. George H. Steuart signed, with others, a recommendation that the street be paved, and signed as the owner of 195 feet fronting on the street, when it is conceded by the admissions of counsel, and established by the proof iu the case, that, with the exception of 90 feet, he was not the absolute owner of any of the lots for the paving in front of which he signed ; he having leased 105 feet of them for terms of 99 years, renewable forever. If he had no right to represent the 105 feet which had been leased, then there was not a majority of the feet fronting on the street recommended to be paved by those who had the right or authority to do so, and, as matter of necessary consequence, the ■city authorities liad no power to direct the paving of the street.

It is a matter of mathematical ascertainment how many feet there are binding on a street within a given distance, and, in this case, it is not only shown by the enumeration of the feet of the several lots fronting on the street, but admitted, that if Gen. Steuart had not the right, to represent the 105 feet leased for ninety-nine years, there were not a majority of the feet represented by those who alone liad the right to do so. By the act, of 1833, chapter 40, section 1, the Mayor and City Council of Baltimore, on the recommendation of the owners of two-thirds of the feet fronting on any street, were empowered to order that it be repaved; and by the 3rd section ¹⁹⁶ of the same act it is provided, “that a tenant for ninety-nine years, or for ninety-nine years, renewable forever, and the executors or administrators of such tenant, shall be deemed and taken as an owner, within the meaning of this act.” By the act of 1840, ch. 63, it is enacted, that the Mayor and City Council should have full power and authority to provide, by ordinance or otherwise, for the prompt collection of taxes due the city, and, to that end, to sell real as well as personal property. It will be perceived, that by the language of the act of 1833, the authority conferred, in words, is only to repave.

But, by the ordinance of the Mayor and City Council of Baltimore, of May 20th, 1850, it is provided, that whenever the city commissioner shall receive an application, in writing, for paving to be done in any unpaved