Mayor of Baltimore v. Scharf

Irving, J., delivered the opinion of the Court. The bill of complaint in this cause was filed by the • appellees to restrain the Mayor and City Council of Baltimore from collecting certain taxes which had been assessed on them for repaving that portion of Baltimore street, between Harrison street on the east, and G-reene street on the west, by virtue of Ordinance Ho. 98 of the Ordinances of 1876. This Ordinance was passed in pursuance of authority from the Legislature given by ch. 218 of the Acts of 1874. The bill charges that the street was sufficiently paved for the interest of the complainants, with cobble stones which had already been paid for by the complainants ; that the repaving was ordered to he done with “Belgian pavement,” which was done for the benefit of the public generally, and was not necessary for the complainants, and subjects them to unnecessary cost and expense.

The bill sets out the several sums of money assessed on the complainants, and alleges that the Ordinance Ho. 98 ■ does not provide for the collection of the alleged assessments in accordance with the Act of 1874, ch. 218, and ⁵¹² that the distraint is illegal. The hill further charges, that in the attempted exercise of the power claimed to have heen given them hy the statute, the Mayor and Oity Council have delegated to the City Commissioner, a discretion with respect to the repaving and rekerbing which could only he exercised by the Council itself, and that to that extent they have exceeded their powers ; that if the right to delegate the discretion which has heen delegated exists, the City Commissioner has not exercised the discretion properly, but has exceeded his powers. The complainants further charge that The City Passenger Railway Company is bound by Ordinance of the city and by its charter to keep the streets occupied hy its tracks, and two feet on each side of its tracks in thorough repair, and that the attempt on the part of the City to make the owners of the property binding on the street pay for two-thirds of the whole cost is illegal and void. That conceding they may repave under their powers, this Ordinance is void because they have not made the City Passenger Railway Company pay any part of the expense of the work.

The Circuit Court for Baltimore City, upon answer filed and proof taken, passed a pro forma order granting the injunction and making the same perpetual. Prom that order this appeal is taken. The Ordinance in question has no preamble. It consists of three sections.' The first section simply repeals Ordidance No. 80, approved September 16th, 1814.

Sections 2 and 8 are as follows : “ Section 2. And be it enacted and ordained that the City Commissioner be and he is hereby authorized and directed to have all that part of Baltimore street from the west side of Greene street to the east side of Harrison street repaved, and rekerbed where the same is necessary, the repaving to he done with the pavement known as the ‘ Belgian pavement/ “ Section 3. And be it enacted and ordained, that the cost of such repaving shall be defrayed according to the ⁵¹³ provisions of Ordinance No. 44, approved June 4th, 1874, viz., two-thirds of the whole cost to he assessed upon the owners of the property binding upon said street between Greene and Harrison streets, and one-third to be paid by the city. The copy of the Ordinance filed with the answer of the Mayor and City Council, and alleged to be a true copy of the Ordinance, the appellees insist is not a true cojjy of the Ordinance as passed and as published in the printed copy of the Ordinances, which, by law, is made evidence of what the Ordinances are; while the appellants contend that the Ordinance, as passed and on file in the proper office, and of which the copy filed with their answer is a true copy, differs from the Ordinance in the printed volume in this—that in the latter a comma precedes the word “ repaved ” instead of following it, as is the case in the original.

The effect of this improper punctuation in the printed copy, on which the appellees rely, is to make the discretion vested in the City Commissioner by the words “ where the same is necessary ” apply to the repaving as well as the rekerbing; whereas, the appellants insist the true punctuation confines it to the rekerbing. At the hearing it was admitted by the counsel for the appellees that the punctuation in the original is as charged by the appellants. The appellants contend that the Ordinance is perfectly valid, and has been passed and executed in entire conformity with the Act of Assembly; that whether the repaving was necessary cannot be inquired into by this proceeding, as the Council was the sole judge of its necessity and its beneficial character to the ajjpellees. It is well settled that where nothing to the contrary appears in an Ordinance directing paving or repaving to be done, and the Ordinance charges the owners of the property along the line of the street with the cost of such, improvement, the presumption is, that the Mayor and ⁵¹⁴ City Council have decided, that the improvement is so far beneficial to them and their property that they ought to pay the proportion of the cost of it which has been put on them, and it will be held an adjudication of that question by that body.

Hughes’ Case, 1 Gill & Johnson, 492; Moore vs. Mayor and City Council, 6 H. & J., 375 ; Burns’ Case, 48 Md., 198 . These cases also decide, by necessary implication, that the Mayor and City Council, under their charter and the several Acts of Assembly defining their powers, are the proper tribunal for the determination of the question whether such improvement is needed, and whether a particular district of the city should have the burden of making it; but these decisions proceed on the hypothesis that the Mayor and City Council have done all that was necessary to be done preliminary to their action, to justify their action and make it final. They do not decide the question which is raised in this case, for it was not before the Court. In Hughes’ Case and Moore’s Case the question did not arise, for the law was then different, and the point at least was not made.

In Burns’ Case the point was not made, and if it had been, would not have been necessary to the decision of the case as it was decided. In this case the appellants contend there is no jurisdiction in the Court to consider or review what has been done by the Mayor and City Council—that their action is final. On the contrary, the appellees insist that the Court can and ought to interfere, by wa_y of injunction, to restrain the execution of the Ordinance against them, because the Ordinance No. 98 of 1876, under which the appellants have proceeded, is void, because it makes no provision for notice to the property holders to he affected, of their intention to consider the subject, and gives them no opportunity of being heard about it and their taxation for the cost of the repaving. The question presented has, we believe, never before been raised in this State.

Prior to the Act of 1874, ch. 218, (under which Act Ordinance ⁵¹⁵ 98 was passed) such improvements as were provided for in that Ordinance could only he made by the Mayor and City Council upon an application of a certain portion of the owners of the property intended to be affected by the improvement and to be charged with a part of the cost. And the Act of 1870, ch. 322, in cases of change of grade, paving, repaving, or renewing curb stones of any street, lane, or alley, made provision for notice of the determination of the matter by the Mayor and City Council in respect to the application, to be published in the newspapers for three weeks successively, and thereby give an opportunity to any person to appeal from the decision of the Mayor and City Council, within thirty days, “ to the City Court, or any other Court of competent jurisdiction, which Court should hear and determine the appeal.” By this Act a trial by jury was accorded, and a further appeal to the Court of Appeals from any ruling of the Court. By the Act of 1874 a new state of things is introduced. The Act-of 1870, ch. 322, is expressly repealed by it.

The necessity for the application of a part of the owners of the property binding on the street to be improved, was wholly dispensed with, and the authority was conferred on the Mayor and City Council to proceed without such application. The Act makes no provision about notice, and the question is whether the Act of Assembly intended, in cases of paving and repaving, such as are provided for in the Act, to dispense with notice altogether; or intended to leave the question of notice, its kind and extent, to the discretion of the Mayor and City Council; if it did intend to dispense with the necessity for notice, whether the Legislature had the power to do so ? And, if the Legislature intended to leave that matter entirely to the Mayor and City Council, whether the Mayor and City Council have acted legally and constitutionally in dispensing with notice, or failing to provide affirmatively for notice ? We cannot suppose the Legislature intended to sanction the course pursued by the City authorities in this instance. ⁵¹⁶ It was not necessary for the Legislature to designate all the formalities the Mayor and City Council were to. observe in the execution of the powers the Legislature was. conferring upon them by the Act in question.

We must assume that the Legislature intended them to determine the character and extent of the notice, which the exigency of the case demanded, and of the proceedings after it. The 26th section of the Baltimore City Code of 1879 says, “ the Mayor and City Council shall have power to pass all Ordinances necessary to give effect and operation to all the powers vested in the corporation.” The Legislature must have intended them to execute the powers vested in them respecting the paving and repaving the streets of the city, with a due regard to all the legal and constitutional rights of those interested in their action. The Legislature has not declared that notice shall in no case be necessary, and tlie mere failure to provide for it does not,, we think, warrant the inference that it intended to abridge any of the constitutional rights of the property-holders, in the city. Judge Dillost says, in section 262 of his work on Municipal Corporations, “Where the power to legislate on a. given subject is conferred, but the mode of its exercise is not prescribed, there the Ordinance passed in pursuance-thereof must be a reasonable exercise of the power, or it will be pronounced invalid.” The Legislature could not have intended so unreasonable an exercise of the powers conferred about paving and repaving, as to justify such an Ordinance as this one is, without any notice of any kind to the property-holders.

If notice was necessary, and was provided for by the-statute and Ordinances, at a time whére a majority of front feet owners were required to petition for the repaving, as. a protection to those who did not unite in the application, even to the extent of requiring notice of what action the-Mayor and City Council had taken, in order that an ⁵¹⁷ •appeal might he taken, to a Court of justice, and finally an appealed to the Court of Appeals; surely, when the neces-sityr for application hy any body is done away with, and all opportunity of appeal by direction from the Legislature is withdrawn, the Legislature did not intend to •authorize the Mayor and City Council to proceed without any notice at all. A fortiori there was greater need now for notice than before. If such was the purpose of the Legislature, we could not uphold the law; hut if the Ordinance had made suitable provision for notice under the law, we think it might stand. In providing for no notice it departs from the usage which has prevailed, and which still accords, hy law, notice in other cases of improvement of no greater importance ; such as opening new streets, widening old ones, paving to prevent or remove nuisances and many others.

Can such an Ordinance he supported? and can proceedings under it he upheld, of which, so far as the complainants are concerned, the first notice they had was the levy for assessments. The Constitution of the United States provides that no State shall deprive any person of life, liberty, or property without due process of law; “ what is due process of law ” has heen*tEUsuhject of much and very able discussion, and •of many decisions; but an exact definition has never been given which will include all cases to which it applies. The full meaning of such an important phrase remains to he ascertained by the gradual process of “exclusion” and “inclusion” in judicial determination as cases may •arise. Davidson vs. New Orleans, 6 Otto, 104 .

Judge Cooley, in his work on Constitutional Limitations, page 356, after saying that “ due process of law ” is not confined to judicial proceedings, says, that “in each particular case it means such an exertion of the powers of Government as the settled maxims of the law sanction, and under such ■safe-guards for the protection of individual rights as those ⁵¹⁸ maxims prescribe for this class of cases to which the one in question belongs.” The same author in his work on Taxation, page 265, says, that in proceedings involving taxation, “ it is of the utmost importance to the person-assessed, that he should have opportunity to be heard before the charge is fully established against him,” and on page 266, Judge Cooley, says, “ we should say that notice of proceedings in such cases and an opportunity of being heard were matters of constitutional right.” It is necessary therefore to the validity of a law, such as the Ordinance under review, that at some stage of the proceedings in the tribunal charged with determining the question, the party to be affected should have opportunity of being heard on the matter. The case of Stuart vs. Palmer, 74 N. Y., 183 , is similar to this and exactly in point. An Act was passed “ to lay out, open and grade Atlantic avenue in the town of New Lots, King’s County.” Proceedings were had and assessments of taxes were made. A proceeding was instituted on the part of one of the persons taxed, to vacate the-assessments, to remove a cloud from his title and to-restrain the collector from collecting the tax.

In that case no notice was provided for by the law or the-ordinance. The case was most carefully considered, and Judge Earl in delivering a very convincing opinion,, in which all the other Judges concurred, says: “I am of opinion that the Constitution sanctions no law imposing such an assessment, without notice tó, and a. hearing, or an opportunity of a hearing by the owners of the property to be assessed. It is not enough that the-owners may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require notice to them and give them a right to a hearing and an opportunity to he heard.

It matters not upon .the question of the constitutionality of such a law, that the assessment, has in fact, been fairly apportioned. The constitutional ⁵¹⁹ validity of the law is to be tested, not by what has been done, but what may by its authority he done. The Legislature may prescribe the kind of notice and the mode in which it shall he given, but it cannot dispense with all notice.” The same doctrine is maintained by the Supreme Court of the United States in Davidson vs. New Orleans, 6 Otto, 104 ; Philadelphia vs. Miller, 49 Pa., 440 ; 31 N. Y., 514 ;