Mayor of Baltimore v. Eschbach

Cochran, J., delivered the opinion of this court. The Legislature, by the Acts of 1797, chap. 54,1817, chap. 148, and 1835, chap. 390, conferred upon the Mayor and City Council of Baltimore full power and authority to pass all ordinances necessary to provide for the grading and paving of its Streets, and in execution of the power so conferred, they, by Rev. Ord. No. 15 of 1860, imposed upon the city commissioner the duties therein particularly specified and defined, in reference to such grading and paving. Under this ordinance, the city commissioner, with the approbation of the mayor, determined- to grade and pave Hull street, from Fort Avenue t'o the Port Wardens Line, upon an application made by the owners of a majority of the front feet Of ground bounding theredn, and accordingly advertised the Work proposed for contract, although that street had never been formally condemned by the Mayor and City Council.- Proposals were made for the work by John Eschbach, upon the acceptance of which; he'entered into a'contract, approved by the mayor, with' the city commissioner, acting on behalf of the Mayor and’ City Council, to complete the work on the terms proposed-, in accordance with the'provisions of the ordinance.

The commissioner then assessed the tax imposed by the ordinance for grading and paving, and delivered his warrants'for the collection of the same to the collector.- The tax was collected and paid over to Eschbach, with the exception of the sum of $4516, assessed- to certain owners of ground, who refused to pay the same,’because no application to grade ²⁸¹ and pave, sufficient to give the commissioner any authority to act in the premises, had been made by the owners of the ground bounding on the portion of the street to be graded and paved. Upon these material facts, Eschbach, assuming that the Mayor and City Council were bound by his contract with the city commissioner, to impose and assess for his use, a valid tax for the work done, and that the default, in imposing and assessing such a tax, had caused damage to him, brought suit and obtained the judgment for $4325, upon which this appeal was taken. The right of the appellee, toan affirmance of this judgment, depends primarily upon the liability or obligation imposed by the contract on the appellants, and as a determination of the character of the contract in that respect will, in our opinion, conclude all questions of right involved, a consideration of other propositions, discussed in the argument of the case, will be unnecessary. In ascertaining whether the contract charges or imposes any liability or obligation on the appellants, which the appellee is entitled to enforce in this case, the ordinance to which it refers, the circumstances preceding and connected with its execution, and the capacity and power of the parties by whom it was executed,' must be considered.

The city commissioner, by the 1st, 34th, 35th and 36th secs, of Rev. Ord., No. 15, of 1850, with the approbation of the mayor, is vested with power and authority to enter into and make contracts for grading and paving, and to assess taxes therefor, in two classes of cases only, 1st, when the proprietors of a majority of the feet of ground, binding and fronting on any condcmn.cd street, lane or alley,- make application to him in writing, to have such street, lane or alley, graded and paved; and 2nd, when all the proprietors of the ground fronting on a street, lane or alley, not formally condemned, make a like application for grading and paving. One or the other of these applications, as the case may be, must be made,-in accordance with the provisions of the ordinance, to initiate his jurisdiction and authority in any case of grading and paving; ²⁸² without such an application he is entirely destitute of the official character and power, in and by which alone he can take any lawful proceeding, or make any valid contract for such work. The power conferred on the mayor, to approve of his determination to grade and pave, and also of his contracts for grading and paving, is limited to the same classes of cases, and will