Mayor of Baltimore v. Gahan

McSherry, C. J., delivered the opinion of the Court. On June 15th, 1906, Ordinance No. 150 adopted by the Mayor and City Council of Baltimore was approved. It is ¹⁴⁷ known as the Bruce-Fendall ordinance. By its first section it provided for the paving of nineteen designated streets of the city, no one of which is situated in the annex.

Seven were directed to be paved with prepared wood blocks, two, with asphalt blocks, one with Belgian blocks and nine with sheet asphalt, asphalt blocks or bitulithic, as under sec. j, might be determined by the Mayor, the President of the Second Branch of the City Council, the Comptroller, the City Register, and the City Solicitor, after the bids had been submitted and opened. All of this paving was required to be done in accordance with specifications to be prepared by the City Engineer, who was directed to advertise for proposals for performing the work on each of the named streets or parts of streets. By the fourth section it was ordained that if the bids for doing the work on any of the nine streets for which the paving material is prescribed by the first section in the alternative, shall in the judgment of the Board of Awards, be excessive, and if the board shall reject all the alternative bids, the City Engineer should do the paving with vitrified bricks; and if the bids for doing the work on the streets required to be paved with treated wood blocks, shall, in the judgment of the board, be excessive and shall be rejected by the board, then the City Engineer should pave those streets with treated wood blocks by day labor. By section five the whole cost of paving the.nineteen streets was limited to $214,500.

Pursuant to this ordinance the City Engineer prepared and issued specifications for the laying of asphalt block, sheet asphalt and bitulithic pavements on Woodbrook avenue and on each of the other nine streets required to be paved with one of the three materials thus named in the alternative; each set of those specifications was complete and definite in itself, and each furnished the bidders on the respective materials to be used, with a common basis or standard upon which to submit their bids as to each of said kinds of pavements. The specifications are entirely different from each other and call respectively for pavements which are wholly dissimilar except in so far as they are all composition pavements. On the same day on which the ordi ¹⁴⁸ nance was ápproved the City Engineer duly advertised that sealed proposals would be received until eleven A. M. of June 27th, to grade, curb and pave with-sheet asphalt, asphalt blocks or bitúlithic the nine streets required by the first section'of Ordinance 150 to be paved with such one of the three designated materials as the board named in the third section, might select. Woodbrook avenue is one of those nine streets, and when the bids referring to it were opened it was found that there were two bids on asphalt blocks, four on sheet asphalt, and two on bitúlithic.

The lowest bid on the first named article was two dollars and ten cents, on the second it was one dollar and eighty-four cents, and on the third it was two dollars and fifteen cents per square yard. The board then selected asphalt blocks as the material with which to pave Woodbrook avenue and awarded the contract to the Maryland Pavement Company, its bid being lower than the' only other bid on the same material, but being higher than any of the bids on sheet asphalt. Two days later William H. Gahan, a taxpayer in the city filed a bill in 'equity in the Circuit Court of Baltimore City against the city and the successful bidder assailing Ordinance No. 150 as null and void and the proceedings taken thereunder as unlawful because, first, the ordinance attempts to delegate to the Mayor, the President of the.Second Branch of the City Council, the City Solicitor, the City Comptroller and the City Register, or a majority of them, the power to select which one of the alternative kinds of materials specified in the ordinance should be used in the paving of the nine streets named therein, which power, it is averred, can only be exercised lawfully by the Mayor and City Council acting in its legislative capacity by an ordinance duly passed and approved specifically prescribing the material with which the streets shall be paved. Secondly, because by the process of bidding on alternative materials secs. 14 and 15 of the charter were violated.

And thirdly, because the fourth section of the ordinance requires the City Engineer, if all the alternative bids are rejected, to pave the streets with vitrified bricks by day labor; which provision is also alleged to be con- ¹⁴⁹ trary to the same sections of the charter. An injunction to restrain the execution of the contract and to prohibit the doing of the work was prayed for. The city and the Maryland Pavement Company both demurred to the bill of complaint. The demurrers were overruled, and the defendants declining to answer, an injunction issued in accordance with the prayer of the bill.

From that order this appeal was taken and the case was argued on August the eighth during a special session of this Court convened to hear this and the two preceding paving cases. On the ninth of August a decree was signed reversing the decretal order appealed against, and we now proceed to give our reasons in support of that action. As the second of the three grounds upon which the BruceFendall ordinance is attacked is precisely the same proposition that we have just fully and at length considered in the case of Mayor, &c., Balto. v. Flack et al., we need say nothing further in regard to it than that for the reasons given in that case, it cannot be sustained in this; and we pass at once to the other grounds above indicated; and both of them, it seems to us, are founded upon a misconception of the meaning and effect of the ordinance. Does the Bruce-Fendall ordinance delegate to the Board of Awards legislative authority which can only be lawfully exercised directly by the Mayor and City Council itself by ordinance?

The Act of 1904, ch. 274, which was construed in the preceding cases has nothing to do with the question, since that Act relates solely to streets in the annex portion of the city and to the two million dollars loan with the avails of which those streets were to be paved; whilst the nine streets including Woodbrook avenue, designated in the first section of the ordinance now before us as those in respect to which alternative bids are to be and were asked for, are not within the annex, and the paving of them is to be paid for out of the two hundred and fourteen thousand and five hundred dollars included in the levy of 1906 made for that special purpose. Hence the charter of the city, and not the Act of 1904, must be looked to for the data needed to furnish ah answer to the ¹⁵⁰ question. By sec. 6 of the City Charter, sub-division entitled “Streets, Bridges and Highways,” the Mayor and City Council are empowered “to provide by ordinance for grading, shelling, graveling, paving and curbing * * * of any lane, street or alley in said city. * * * To provide by general ordinance * * * for the grading, graveling, shelling, paving or curbing * * * of any street, lane or alley * * * without the passage of a special ordinance in the particular case, whenever the owners of a majority of front feet of property binding on such street, lane or alley * * * shall apply for the same, upon terms and under conditions to be prescribed in the same general ordinance, &c.” The principle is a plain one, that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others. Thus where by charter or statute local improvements, to be assessed upon the adjacent property owners, are to be constructed in “such mannei'- as the common council shall prescribe” by ordinance, it is not competent for the council to pass an ordinance delegating or leaving to any officer or committee of the corporation the power to determine the mode, manner, or plan of the improvement, i Dillon Mun.

Corp. (2 ed.), sec. 60. So, in Ruggles v. Collier, 43 Mo. 359 , where the charter gave the city power to require streets to- be paved “in, all cases where the City Council shall deem it necessary,” it was held that the council could not, by ordinance, make the Mayor the judge of the necessity for paving, To the like effect is Hydes v. Joyes, 4 Bush. (Ky.) 464; Birdsall v. Clark, 73 N. Y. 73 ; Thompson v. Schermerhorn, 6 N. Y. 92 . In Mayor, &c., v. Scharf, &c., 54 Md. 499 , an ordinance relating to paving was held void on two grounds—one of which was that it delegated to the City Commissioner authority to prescribe the rule according to which the pro rata proportion of the total cost of repaving a part of Baltimore street was to be assessed upon each abutting proprietor; and the other of which was that no notice was provided to be given to and no opportunity for a ¹⁵¹ hearing accorded the parties to be affected.

Upon a rehearing (jó Md. jó) the decree striking down the ordinance on those two grounds was rescinded upon the reasoning in Mayor, &c., v. Hopkins, 56 Md. 1 , and the duty assigned to j:he City Commissioner was held to be one involving only measurements and arithmetical calculations. This last-cited case was overruled in Ulman v. Mayor, &c., 72 Md. 587 , but only in so far as concerned the ruling that the property owner was not entitled to notice of the proceedings affecting him and also not entitled to an opportunity to be heard, the ordinance having failed to provide for either notice or a hearing. How, conceding, as falling within the principle laid down in these cases, and as intimated in Mayor v. Stewart, 92 Md. 551 , that the power to determine what material is to be used in paving a street, is a legislative power, and that it is included .under the power to grade and pave, and is to be exercised by the City Council, unless validly reposed in some other agency; then that power cannot be trausferred by the City Council to any one else. The Bruce-Fendall ordinance however delegated to the Board of Awards no such broad and unrestricted power as was attempted to be conferred upon subordinate agencies by the ordinances reviewed in some of the above-cited cases.

On the contrary, it limits the materials to be adopted and definitely prescribes that such one of the three thus selected by the City Council shall be used for the paving of each of the nine streets as the Board of Awards may designate after the bids have been opened—and when that designation has been made the two alternative methods which have not been