Jarvis v. Mayor of Berlin

Adkins, J., delivered the opinion of the Court. Under an agreement made June 24th, 1924, between the Mayor and Council of Berlin and the County Commissioners of Worcester County, approved by the State Roads Commission, it was arranged that the State Roads Commission ¹⁵⁸ should take charge of and build for the town of Berlin certain streets in said town, and th^t when said roads were completed and ready for use there should be turned over to the Mayor and Council of Berlin, from the lateral roads funds available for use in Worcester County during the year 1925, a sufficient amount to compensate or reimburse said town for fifty per cent, of the funds which may have been expended on the building of said roads under the supervision of the State Roads Commission. Whereupon the following ordinance was passed on October 6th, 1924, and approved by the Mayor on October 9th, 1924: “Ordinance No. 81. “An ordinance providing for the widening, straightening, grading, improving and paving of Bay Street from Main Street to the corporate limits of Berlin at the west end of the state road from T'rappe, and Broad Street from Main Street to the corporate limits of Berlin at the east end of the old county road from Libertytown and Powellville. “Whereas, the County Commissioners of Worcester County and the Mayor and Council of Berlin did on the twenty-fourth day of June, nineteen hundred and twenty-four, enter into an agreement whereby the said County Commissioners of Worcester County recommended to the State Roads Commission of the State of Maryland that the State Roads Commission take charge of and build for said town of Berlin the roads referred to in the title of this ordinance, and that when the said roads shall have been completed and ready for use there be appropriated to the said Mayor and Council of Berlin sufficient funds from the lateral road funds to be available for use in Worcester County, during the year nineteen hundred and twenty-five, as will compensate or reimburse the Mayor and Council of Berlin for fifty per cent, of the funds which may have been expended in the building of said roads in the town of Berlin under the supervision of the State Roads Commission aforesaid. Whereas said agreement has been approved by the said State Roads Com ¹⁵⁹ mission and the suggestion therein as to the building thereof under the direction and supervision of the said State Roads Commission accepted. “Section 1.

Be it enacted and ordained by the Mayor and Council of Berlin, That, pursuant to the authority conferred upon it by its charter and the agreement therein referred to, the road bed of Bay Street from Main Street to the corporate limits of Berlin at the west end of the state road from Trappe, and of Broad Street from Main Street to the corporate limits at the east end of the old county road from Libertytown and Powellville, be widened, straightened, graded, improved, and paved, with concrete according to the standard specifications of the Maryland State Roads Commission, said roadbed to be laid on said street in accordance with the blue prints hereto attached and made a part hereof, marked Exhibits Plats 1, 2, 3, 4, 5, and 6, and Grade Sheets 1 and 2. “Section 2. And be it enacted and ordained as aforesaid that one-eighth of the cost of such work be assessed according to the front foot rule of apportionment upon the respective properties binding on the northerly side of said Bay Street and on the northerly side of said Broad Street, and one-eighth thereof also according to the front foot rule of apportionment upon the respective properties binding on the southerly side of said Bay Street and on the southerly side of said Broad Street. “Section 3. Be it further enacted and ordained that the said work be done through the agency of the State Roads Commission of Maryland, acting for and on behalf of and with the approval of the Mayor and Council of Berlin, and in accordance with the plans and specifications heretofore mentioned, and at the least cost consistent with the proper quality of materials and workmanship. “Section 4. Be it further enacted and ordained as aforesaid, That this ordinance shall take effect from the date of its passage.” ¹⁶⁰ Subsequently, on April 25th, 1925, Ordinance No. 36 was passed, and signed by the mayor.

It is entitled: “Ordinance No. 36. “An ordinance amending Ordinance No. 31 by changing the route of the improved street therein described from the intersection of Bay Street and Pitts Street so as to make said improvement on Pitts Street to Williams Street to connect with that part of Pitts Street already improved from Williams Street to Main Street, instead of to run on Bay Street from Pitts Street to Main Street; and providing for the widening, straightening, grading, improving and paving of said Pitts Street from its intersection with William Street to its intersection with Bay Street.” It repeats the recital in Ordinance No. 31, and further recites that, by reason of certain difficulties in the way of improving Bay street from Main street to the intersection of Pitts street, the said commission recommended a change of the route of the improved street so as to run on Pitts street to Williams street to connect with that part of Pitts street already improved, and that said proposed change has been submitted to and approved by the County Commissioners, and then re-enacts Ordinance 31 as amended. Subsequently, on September 2nd, 1925, Ordinance No. 38 was passed: “Ordinance No. 38. “Whereas, by virtue of the authority of the General Assembly of Maryland, and of ordinance heretofore passed, Pitts Street from Bay to Williams Street, Bay Street from Pitts Street to the west end of the state road leading from Trappe to Berlin, Broad Street from Main Street to the corporate limits at the east end of the old county road from Libertytown and Powellville, Baker Street from Main Street to Harrison Avenue, and West Street from Main Street to Broad Street, have been widened, straightened, graded, improved and paved. ¹⁶¹ “Whereas, it was duly determined and provided that certain proportions of the cost of such work be assessed by the front foot rule of apportionment upon the respective properties along the line of said improvements, binding on each side of said improved street, within the limits above mentioned. “'Vow, therefore: “Section 1. Be it enacted and ordained by the Mayor and Council of Berlin, That the Mayor and Council meet in special session at the council room in the town of Berlin, on the 16th day of September, 1925, at 7:30 o’clock P. M., for the purpose of hearing all persons interested in the proposed assessments and for the consideration of any objections thereto, and that general notice of the time, place and object of said meeting be given by publication in two successive issues of some weekly newspaper published in Worcester County, the first insertion to be at least one week before the meeting, warning all persons interested in the proposed assessments, to appear at the time and place aforesaid to be heard in the premises; and the secretary is hereby directed to cause a copy of the said notice to be served personally on such tax payers proposed to be assessed, as may be found within the corporate limits, and to mail such notice to such tax payers as are not found within the corporate limits, addressed to their last post office address, such personal service, or such mailing to be not less than five days before the date fixed for such meeting. “Section 2. Be it further enacted and ordained, as aforesaid, That publication and service as aforesaid of a copy of this ordinance shall be deemed sufficient notice. “Section 3.

Be it further enacted and ordained, as aforesaid, That this ordinance shall take effect from the date of its passage.” Subsequently, on September 22nd, 1925, Ordinance Vo. 39 was passed. It recites that, in pursuance of Ordinance Vo. 31, as amended by Ordinance Vo. 36, the streets there ¹⁶² in mentioned have been improved as therein provided; and that by said Ordinance No. 31 as amended it was enacted and ordained that one-eighth of the cost of the work be assessed according to the front foot rule of apportionment upon the respective properties binding on the northerly side of said streets, and one-eighth thereof upon the respective properties binding on the southerly side of said streets; recites Ordinance No. 38, and that the notices required thereby were duly given, and that the Mayor and Council met in accordance with said notices and heard all persons who appeared and desired toi be heard in regard to the proposed assessments and received all written communications with regard thereto and gave full consideration to both oral and written protests, and after such hearing and consideration determined that the amounts properly assessable to the owners of the abutting properties were as thereinafter set forth. It then enacts that one-eighth of the cost of said improvements be assessed according to the front foot rule against the respective properties binding on each side of the several streets, and lists the several owners and the amounts with which they are assessed; and enacts further that said assessments shall bear interest from October 1st, 1925, providing that the assessments may be paid in installments. The amounts assessed against appellant on two lots were together $315.86, and suit in assumpsit on the common counts was brought against him to collect that sum, with interest from October 1st, 1925.

The case was tried by the court without a jury, and 'a verdict rendered in favor of appellee for $315.86, and judgment entered on that verdict. This appeal is from that judgment. The main contention of appellant is that all of the above mentioned ordinances were void, in that they provided for the widening and straightening of streets as well as for grading and paving them, and assessed the abutting property owners with a portion of the costs of such work by the front foot rule of apportionment; whereas there was no ¹⁶³ authority conferred, upon the municipality by any act of the legislature to assess the abutting’ property owners for costs of widening and straightening streets. This objection is presented in the first three bills of exception, which were to the refusal of the trial court to strike out as evidence the said ordinances, which were admitted subject to exception; and in the sixth, which was to the ruling of the court on the prayers.

The other objection seriously pressed was that Ordinances 31, 36, 38, and 39 were void, the first two because they made no provision for notice to abutting property owners and gave them no opportunity to be heard; and No. 38, because it was too late, and gave notice more than three months after the completion of the work, and then stated that the assessment had already been determined upon; and No. 39, which actually made the assessment, because of the alleged absence of authority to make the assessment. This objection is also presented in the first, second, third, and sixth bills of exception. Taking these objections in order: There can be no question, and it is in fact admitted, that the municipality was authorized by chapter 799 of the Acts of 1912 to assess by ordinance to the abutting property owners “not exceeding one-half of the cost upon any property binding upon such street * * * that is to say, not to exceed one-fourth of said cost upon any property binding upon each or either side of such street * * *, according to the front foot rule of apportionment * * * or such other equitable basis as it may determine;” and to provide “for the collection of said assessment as. other city taxes are collected or in such manner as. it may prescribe, either before or after the work shall have been done” for grading and paving or curbing of any street now condemned, ceded, dedicated, or opened as -a public highway or “which may hereafter be condemned, ceded, dedicated, opened, widened, straightened or altered according to the laws and ordinance regulating same.” And by section 43 of chapter 733 of the Acts of 1908 it is provided: The Mayor and Council of Berlin shall have full ¹⁶⁴ power and authority for “laying out, opening, widening, extending, straightening out and closing up., in whole or in part, and for the grading, regrading, for shelling and re-shelling, for paving and repaving, curbing and reeurbing, and for repairing and keeping in proper condition and order for travel, traffic and other uses the streets, lanes, alleys and thoroughfares within the