Lauer v. Mayor of Baltimore

' Thomas, delivered the opinion of the Court.. This is an appeal from an order of the Baltimore City Court overruling a motion to quash the proceedings of the Commissioners for Opening Streets for opening Bentalou street from Uorth avenue to Lafayette avenue, in Baltimore City, in so far as they relate to the assessment of benefits on property owned by the appellant, Leon Lauer. The street proposed to be opened and the property of the appellant is in what is called the “Annex portion.of Baltimore City,” and the ground of the motion to quash is that the Commissioners for Opening Streets, acting under the authority vested in them by the Act of 1904, Ch.- 274, and the ordinances passed in pursuance of that Act, have no power to assess benefits on property in that portion of the city. The right to assess property in particular localities to the extent that it is deemed specially benefited by local improvements is to be referred to the power of taxation and has been recognized and sanctioned in all the States.

The theory on which such assessments are made is that “those whose property is thus enhanced, and who thus receive peculiar benefits from the improvement, should contribute specially to defray its cost.” 1 Lewis, Eminent Domain, sec. 5 (2nd ed.); Gould v. Mayor, etc., of Baltimore, 59 Md. 378 ; Hagerstown v. Startzman, 93 Md. 609 . The power to mate such assessments has been expressly granted to the Mayor and City Council of Baltimore, and has ⁴⁴⁹ been exercised by it for a long time. Alexander v. M. & G. G. of Balt., 5 Gill, 383 . By its new Charter, see. 6, the City is authorized “To provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley within the bounds of said city, which in its opinion the public welfare or convenience may require.

To provide for ascertaining whether any and what amount in value of damage will be caused thereby, and what amount of benefit will thereby accrue to the owner or possessor of any ground or improvements within or adjacent to said city, for which said owner or possessor ought to be compensated, or ought to pay a compensation, and to provide for assessing or levying, either generally on the whole assessable property of said city, or specially on the property of persons benefited, the whole or any part of the damages and expenses which it shall ascertain will be incurred in locating, opening, extending, widening, straightening or closing up the whole or any part of any street, square, lane or alley in said city.” The Act of 1904, Ch. 274, under which, and the ordinances passed in pursuance thereof, the Oommissioners for Opening-Streets acted in proceeding to open Bentalou street, provides, by sec. 1, for the issuing of $2,000,000 of stock by the Mayor and' City Council of Baltimore, and that the proceeds of the sale of said stock “shall be used only for the purpose of providing the costs and expenses of condemning, opening, grading, paving and curbing the streets, avenues, lanes and' alleys of the Annex portion of Baltimore City,” and by sec. 2, for á special commission, “to be known as the Annex Improvement Commission.” Sections 3, 5, 6, 7, 9 and 10 of said Act'are as follows: “Sec. 3. That said commission shall have the right and power to condemn, lay out, open, extend, widen, straighten, close, grade and pave any street, avenue, lane or alley, or any part thereof, from curb to curb';' and to establish and fix the building line and the width of the'sidewalks' on any street, avenue, lane or alley now existing or to be laid out, opened, ⁴⁵⁰ extended,'widened,'.straightened, graded-or paved in the*'Annex portion'of-the City of Baltimore. • That' said '-commission shall have’all-powers necessary and proper in the exercise of 'said. powers; - and the Mayor and City Council of Baltimore are hereby authorized and empowered to grant by ordinance any further powers and duties it shall deem necessary for the proper execution of the improvements intended- to be, made by this Act. ‘ “Sec. 5. That the said commission hereby created shall be the agent of the Mayor.and City Council of'Baltimore to acquire by gift, purchase, lease, whatever the duration of the -lease, or by other methods of acquisition, or by condemnation, any private property whatsoever-, including streets, avenues, lanes and alleys, rights or' interests, franchises, privileges or easement, that may be required to open,- widen, extend, straighten, close, grade or pave any street,' avenue, lane or alley, or to broaden any sidewalk; and as soon as-the'title to the property acquired as set forth herein has been certified by the City Solicitor, said commission shall have the samé conveyed'to the Mayor and City Council of Baltimore/ and no ordinance shall be requisite to the validity- O'f "such conveyance ; said streets, avenues, lanes and alleys SO conveyed- shall become-public highways, subject'to all ordinances and resolutions relating to streets, avenues, lanes and alleys in the City of Baltimore. That authority is hereby confeired upon the Mayor'and City Council of Baltimore to provide by ordinance or ordinances the proceedings for condemnation of property as herein set-forth by the said commission. ' “Sec: 6v That no money'shall be expended by " said'coin-' mission to pay for the improvement of sidewalks in the said Annex, - but same shall be'done" at the expense of the ownei or- owners of property along and upon the streets, aventies, or lanes, said sidewalks are to'be placed;' authority -is ‘hereby given'said'commission "to assess said property for thenóst and expenses of' said -sidewalks, and to collect the' same as now .prescribed by law or ordinances’. ' ' ⁴⁵¹ ' “Sec. 7.

That said commission is hereby authorized and empowered to contract, .with any person, persons, company or corporation for the. work .of .opening,: grading, curbing and paving the streets, avenues, lanes and. alleys of the Annex as intended by. this .Act, or to employ the necessary, laborers, help and. assistants, .skilled and .unskilled, and perform the work under their own supervision. The costs and expenses of said work and all necessary expense of this commission to be paid out of the loan as provided in section 1 of this Act, upon vouchers, approved by the said commission or its chairman, and presented to the Comptroller and City Begister of the City of Baltimore. “Sec. 9: That the said commission is hereby authorized as its work progresses to turn over from time to time such completed portions of said work as it may see .fit to the charge, superintendence and control of the proper city officials, and shall on the termination of its work turn over all the records, writings, maps; reports to the Commissioner - for Opening Streets,- to be by him preserved and to be used as the papers and records of his office. • . “Sec. 10. That, provided,' however, in lieu of said commission hereinbefore provided for in section 2 of this Act, the Mayor and City Council may by ordinance authorize and empower- the Commissioners for Opening Streets of Baltimore City to perform, the duties and functions in this bill' heretofore provided for the said commission.” ■ By section 3 the commission is not only given “all powers necessary and proper in the exercise of” the powers expressly conferred, but the Mayor and City Council are “authorized and empowered to grant by ordinance -any further powers and duties it shall deem-necessary for the proper execution of the improvements intended to be -made by this Act;” and by sec-: tion 5 “to provide by ordinance or ordinances the proceedings for condemnation of property'as herein set forth by said commission.” In "execution of this'power conferred by the Act' on the Mayor and City Council, it passed, March 6th, 1905; Ordinance\No'. 216, by which the Commissioners for Opening- ⁴⁵² Streets are “authorized, empowered and directed . * * * to perform the duties and functions in said Act provided for the Annex Improvement Commission,” and it is provided by sec. 7 “that in condemning; laying out, opening, extending, widening, straightening or-closing streets, avenues, lanes, alleys or parts thereof, under said Act, the procedure of the said Commissioners for Opening Streets, except in so far as they shall be authorized by the terms of said Act h> acquire property, rights or interests, franchises, privileges or easements through voluntary action of the citizen, shall be that now or hereafter prescribed by law in relation to their ordinary duties and powers of the same nature.” How the procedure of the Commissioners for Opening Streets in opening streets required by ordinance to be opened, is prescribed by sections 172 to 195 of the City Charter (Act of 1898, Ch. 123), and section 175 provides that “Whenever the Mayor and City Council of Baltimore shall hereafter by ordinance direct the Commissioners for 'Opening Streets to lay out, open, extend, widen, straighten or close up, in whole or in part, any street, square, lane or alley, within the bounds of this city, the said Commissioners having given the notice required by law of their first meeting to execute the same, shall meet at the time and place mentioned in said notice, and from time to time thereafter, as may be necessary, to exercise the powers and perform the duties required of them by said ordinance, and shall ascertain whether any and what amount of value in damage will thereby be caused to the owner of any right or interest in any ground or improvements within or adjacent to the City'of Baltimore for which, taking into' consideration all advantages 'and disadvantages, such owner ought to be compensated; -and the'said commissioners having-ascertained the whole amount of damages for which compensation ought to be awarded, as aforesaid, and having added thereto an estimate of the probable amount of expenses which will be incurred by-them in the performance of the duties required of them,'as'aforesaid; and also ‘of the expenses incurred by the City Eegister by 'reáson of said proceedings, ⁴⁵³ shall proceed to assess all the ground and improvements within and. adjacent .to.the city, the owners of which, as .such, the said commissioners shall decide and deem to he directly benefited by accomplishing the object authorized in the ordinance aforesaid;” etc. ... As the sections of .the. charter referred to contain the only procedure prescribed by law, it is evident that the procedure referred .to in Ordinance Ho. 216 is that prescribed by-said sections, and that the Commissioners for Opening Streets in opening streets in. the Annex portion of the city are. required by the ordinance, after “having ascertained the whole amount of damage for which