Johns Hopkins Club Building Co. v. Mayor of Baltimore

²⁸⁴ Stockbridge, J., delivered the opinion, of the Court. The Johns Hopkins Club Building Company is the owner of a lot of ground at the corner of Monument and Howard streets, the building on which is occupied and used as a club house by the Johns Hopkins Club. It appears from the evidence that on the 21st of October, 1915, the following notice was left on the premises: “City Engineer’s Office, Baltimore. Notice to Repair andt Renew Footway.

Inspector’s Report No. 14353. Oct, 13, 1915. To Johns Hopkins University Club, S. 'E. Oor. Howard and Monuments Streets: You are hereby notified to repave with cement foot-way and put all surface drains under same, in front and side of house or lot No. , S. E. Cor.

Howard and Monument Streets between and 227 W. Monument. Remarks: Second and final notice. The above work must be started not later than Oct. 18.1915. R. M. Cooksey, Highway Engineer.” Nothing was done by the Building Company by way of a compliance with this notice, and on December 18th another notice was given in these terms: “City Engineer’s Office, Baltimore.

Notice to Repair and Renew Footway. Inspector’s Report No. 25000. Dec. 16, 1915. To Geo.

Gator (Prest.), Continental Bldg.: You are hereby notified to repave and cement foot-way and put all drains under same, in front and side of house or lot No. 227 W. Monument St., between and Remarks: S. E. Cor. Howard and Monument. The above work must be started not later than Dec. 27.1915. R. M. Cooksey, City Engineer, Highway Engineer.” ²⁸⁵ As in the previous instance, the officers of the Building Company did nothing in the way of compliance.

Thereupon the City caused the pavement of the footway to be relaid in cement, and rendered a bill therefor, for the sum of $278.39. This bill was also certified to the City Collector of Taxes, and by virtue of Section 23 of Article 35 * of the ordinances of the Mayor and City Council of Baltimore, became a lien upon the property, rendering it liable to be sold. The bill in this case was filed to enjoin the collection of this tax, and the infliction of the penalties provided by the ordinance under which the municipal officials assumed to act. The bill avers the footway in question to have been in good condition.

This is denied by the answer, and much of the testimony taken related to this phase of the case. The evidence is flatly contradictory, but that question is not one to be determined by the courts in the absence of any allegation of fraud or bad faith. Where neither of these are alleged, the question is one of opinion merely. It is not every difference of viewpoint between a citizen and a municipal corporation which is justifiable in the courts, and where the performance of his duty involves the exercise of discretion or judgment on the part of a municipal official, the courts will not review the manner of the exercise where neither fraud or bad faith is alleged.

Whether a particular footway is or is not out of repair or so worn as to require it to' be relaid in part or in whole, is a matter too vast in detail to be passed on, in a city the size of Baltimore, by separate ordinance in each case. That is a ministerial function rather than a legislative one, and as such is proper to be committed to a municipal official, such as a city engineer or highway engineer, or an appropriate department. McQuillan on Municipal Corporations, sec. 1822: Barber Asphalt Co. v. Tomlinson, 141 Mo. App. 422 . ²⁸⁶ The main ground relied on by the appellant is that the ordinance under which Mr. Cooksey, as highway engineer, assumed to aot, is void, and, therefore,' all proceedings under it are invalid, and ineffectual to> place a lien upon the property of the appellant, or render it liable to the city for the cost of the work done.

In considering this phase of the case it is always to be borne in mind that the test is to be found not by what has been done under the ordinance, but what may, by its authority, be done. Ulman v. Baltimore, 72 Md. 587 . The power of the Mayor and City Council of Baltimore over- the streets and highways of the city is to be found in section 6 of the City Charter, in which it is provided that “The Mayor and City Council of Baltimore shall have full power and authority * * * to pass all ordinances necessary for the grading, regulating, paving and repairing the footways in the streets, lanes and alleys of the city and impose a tax on any lot fronting on any paved street, lane or alley for the purpose of grading, regulating, paving or repairing footways in front thereof, or compel by fine or otherwise the owner or proprietor of any lot to pave or repair the footway in front thereof, agreeably to the ordinances to be passed by it.'” The ordinances of the Mayor and City Council adopted in execution of the power thus conferred axe grouped together in the City Code of 1906, in Article 35, and have been twice amended by ordinances, approved respectively .(No. 102) May 10, 1912, and (No. 7) June 26, 1915. Sections 21 and 22 as they now stand, are as follows: “21.

The City Engineer shall cause notice of the order provided in section 28 hereof to be given to the proprietor or proprietors of the lot or lots in front of which a footway is required to be filled up, dug down, paved or repaved in manner following, that is to say: the said order, or a copy thereof, may be left at any house on such lot, or served personally on the pro ²⁸⁷ prietor or proprietors, or Ms, her or their tenant, agent or guardian, or left at his, her or their residence, or a copy of such order may be published in one or more of the newspapers of the city and posted or set upon the premises, notice in any of which modes shall be deemed sufficient. “22. If the proprietor or proprietors of any lot or lots fronting on any paved street, lane or alley, shall neglect or refuse to fill up, dig down, pave or repair the footways in front of such lot or lots, for the space of ten days after service of a printed or written order, or copy thereof, in manner as aforesaid, to be reckoned in case of publication in a newspaper from the date of first publication, then the City Engineer is authorized and directed to have the said footways filled up, dug down, paved or repaved with cement, stone or brick, in the discretion of the City Engineer, in a sufficient and substantial manner, or repaired in such manner as the City Engineer shall think proper; and a tax is hereby imposed upon each respective lot in front of which the footways shall have been so filled up, dug down, paved or repaved, equal to the expense of such filling up, digging down, paving or repairing (including therein the cost of advertising in cases where advertising is necessary), with an addition thereto of 3 per cent, for the cost of collecting.” The notice referred to in the sections quoted is the notice from the City Engineer or Highway Engineer to an owner to repair or repave the footways along the front or side of his property, but in neither of these, nor in any other section of the City Code, or ordinances applicable to the footways-, is there any provision whatever for a notice to the owner of the property of the amount of the tax to be imposed upon him, or any provision for a hearing with regard thereto, or any appeal provided upon the assessment made or tax levied. In this respect these provisions differ materially from other similar city ordinances. ²⁸⁸ In the ease of Gomeringer v. McAbee, 129 Md. 551 , in construing the ordinance requiring citizens to make connection with the- sewer system of Baltimore, this Court pointed out that the ordinance then under consideration appointed a day for the property owner to show cause why charges should not be made against him, and with the right of appeal to the City Court, as in the case of new assessments. This is different in a marked degree, therefore, from the ordinance now being