Mayor of Baltimore v. Stewart

McSherry, C. J., delivered the opinion of the Court: There are two appeals in this record. One was taken by the Mayor and City Council of Baltimore from a judgment of the Baltimore City Court quashing certain proceedings of the City Engineer in relation to the proposed paving of St. Paul street; the other was entered by Alice Gerry Stewart and David Stewart from a judgment of the same Court refusing to declare invalid an ordinance directing St. Paul street to be paved. Practically the same controlling question lies at the foundation of each case, though there are, in addition, minor inquiries suggested as applicable to the second which do not seem to have been specifically ruled on below. One opinion, however, will be sufficient to dispose of both appeals.

The proceedings of the City Engineer were quashed upon one of the grounds which Mr. and Mrs. Stewart rely on to invalidate the. ordinance. If there was error in quashing these proceedings on that ground, then there was no error in refusing on the same ground to strike down the ordinance. So we will proceed at once to inquire whether the judgment from which the city appealed should be affirmed. ⁵⁴⁴ By Ordinance No. 50 of 1900, passed pursuant to the General Paving Ordinance, contained in Article 48 of the Baltimore City Code of 1893, provision was made for the paving of St. Paul street between Twenty-fifth and Thirtieth streets. After the decision by this Court of the case of Ulman v. Mayor and C. C. of Balto., 72 Md. 587 , wherein it was held the assessments levied upon the owners of abutting property to pay for the paving of streets were invalid if levied without notice to the persons affected, or without an opportunity afforded to them to be heard, the Mayor and City Council provided by a general ordinance an elaborate plan of procedure to be followed thereafter whenever street paving was to be done.

Adequate provision was made for giving ample notice to every individual interested in the subject, or who might become chargeable with any part of the cost of the improvement; and the notices required to be given were, first, as to the pendency of an ordinance providing for the paving of a particular street; secondly, as to the apportionment of the cost of the paving ; and thirdly, as to the right of each interested party to appeal from the. findings of the City Engineer to the Baltimore City Court. The first of these notices is required to be given through the press after an ordinance has been introduced and before it has been acted on by the City Council, and the object of it is to warn all persons who may be affected by the measure, should it be adopted, to appear before the Joint Standing Committee on Highways and there contest the passage of the ordinance if they desire to do so. The second-notice, also given .through the press, is issued by the City Engineer and warns all persons that they may appear before him on a designated day and then and there controvert the apportionments made by him ; whilst the third public notice is given by the City Register and informs all persons interested in the paving of the particular street, that they may appeal within thirty days from the apportionment made by the City Engineer to the Baltimore City Court, where the questions presented by the appeal can be tried by a jury, if a trial by jury be claimed. These provisions of the General Ordinance, contained in Art. 48 of the City Code, grat ⁵⁴⁵ ify all the requirements as to notice and hearing which in Ulmad s case were said to be necessary to give validity to the assessment against an individual for the cost of paving a public thoroughfare.

Each proprietor fronting on any street to be paved is thus afforded an opportunity to litigate the passage of an ordinance providing for the paving of that street; he is also given a hearing before the City Engineer upon the question as to whether the amount assessed against him for the improvement is excessive or erroneous ; and he is finally given an appeal to a Court of law where the same question may be determined by a jury. “If the Legislature provides for notice to and hearing of each proprietor, at some stage of the proceedings upon the question what proportion of the tax shall be assessed on his land, there is no taking of his property without due process of law.” Ulman v. Mayor, etc., 72 Md. 593 ; Spencer v. Merchant, 125 U. S. 345 ; Paulson v. City of Portland, 149 U. S. 41 . We gather from the argument and the record that the specific ground upon which the proceedings of the City Engineer were quashed was that the title of Ordinance No. 50, of 1900, declared that the paving was to be done with sheet asphalt whilst the body of the ordinance contains a proviso permitting the use of vitrified bricks in lieu of asphalt in the gutters and upon such other portions of the street as in the judgment of the City Engineer shall be necessary or desirable. The foundation of this objection is two-fold: First, that the title of the: ordinance is misleading in this that the ordinance embraced a£ subject not disclosed by the title; secondly, that the ordinance left to the discretion of the City Engineer the selection of material with which the paving was to be done, whereas that was a matter to be determined solely by the City Council. When it is proposed to pave a particular street and an ordinance has been introduced to provide for doing the work, sec. 61A, Art. 48 of the City Code, requires public notice to be given “of the introduction of said ordinance, and that any and all persons interested therein will be heard upon any matter relating thereto by the Joint Standing Committee on High ⁵⁴⁶ ways at the time and place to be designated in said notice.” The City Code does not require the provisions of the particular paving ordinance to be published, but simply directs notice of the fact that an ordinance to pave a designated street has been introduced.

Upon turning to the record it will be seen that the notice which was in fact given, reads in part as follows: “Pursuant to the provisions of sec. 61A, Art. 48 of the Baltimore City Code of 1893, by order of the Joint Standing Committee on Highways, notice is hereby given to all persons interested therein that an ordinance has been introduced into the City Council and referred to the Joint Standing Committee on Highways, before which committee it is now pending, the title of which is, as follows : ‘An ordinance to provide for - the grading and paving with sheet asphalt and curbing all that portion of St. Paul street from the north side of Twenty-fifth street to the south side of Thirtieth street.’ ” Then comes a statement that by the provisions of the ordimance the cost of the work is to be paid for by assessing the -whole expense on the abutting property in proportion to the -frontage of said property, except the cost of paving the cross streets, which is to be paid by the city. The notice then promeeds: “All persons in any way interested in the subject-matTer of said ordinance are hereby notified that the Joint Standing Committee on Highways will be in session at the City Hall, first branch committee room, Baltimore, on Wednesday, March twenty-first, nineteen hundred, at three o’clock P. M., for the purpose of considering said ordinance and giving a hearing to all those who may appear before them relative thereto.” The first section of the ordinance is set out in the .margin. * It will be observed that it directs the City Engineer ⁵⁴⁷ to have the street graded and paved with Trinidad Lake, Alcatraz or Bermudaz sheet asphalt or other sheet asphalt which, in the opinion of the City Engineer is equally as good ; it designates the kind of curbing and then in parenthesis occurs the proviso in relation to the use of vitrified brick for the gutters and in such other portion of the street as in the judgment of the City Engineer may be necessary or desirable. Now in what way is the title of the ordinance misleading, and in what manner does the title conflict with that provision of the city charter which declares that “ every ordinance enacted by the city shall embrace but one subject, which shall be described in its title.” Sec. 221, ch. 123, Act 1898. It is not pretended that the ordinance as passed is couched in precisely the language in which it was phrased when introduced..

It is altogether possible that the proviso was inserted either by the Joint Standing Committee or after the ordinance had been reported back from the committee to the Council. It is matter of common knowledge, which every person must be assumed to be acquainted with, that bills and ordinances are open to amendment on their passage through legislative bodies ; and that they are consequently apt to differ materially when finally adopted from the form in which they were when introduced. This being so, the fact that only asphalt was mentioned in the title was no reason for any one supposing that the ordinance when passed would confine the paving material strictly and exclusively to asphalt. The notice having advised all parties interested that an ordinance had been introduced, it became their duty to appear at the time and place designated if they wished to contest the passage of the ordinance or desired to have its provisions varied.

The public notice was not intended to give information of the contents of the ordinance— ⁵⁴⁸ it could not do so for the reason already suggested, that the ordinance was liable to be amended — but the object of the notice was merely to warn parties whose property abutted on the street proposed to be paved that an ordinance providing for that paving was pending. The fact that it wás only a pending ordinance was notice in itself that its provisions were not necessarily or even probably final; and any one relying on its provisions as final or depending on its title as indicating what its provisions would ultimately be, if misled at all was misled by his own failure to heed the notice and not by the terms of the notice as published. But it is said the title violates the charter in this that the subject dealt with in the ordinance is not disclosed in the title. This provision of the charter is similar to sec. 29, Art. 3, of the State Constitution, which has been frequently under discussion in cases decided by this Court.

What has been ruled in those cases in reference to the constitutional provision will apply to the like clause of the charter. It never has been understood that the title of a statute should disclose the details embodied in the Act. It is intended simply to indicate the subject to which the statute relates. The subject of this ordinance was the paving of St. Paul street between certain termini.

The material to be used in doing the work was an incident or detail and not the subject. When the general subject is indicated no matters of detail need be mentioned in the title. “ The primary object of the provision undoubtedly is to exclude all foreign, irrelevant or discordant matter from the statute, and to confine the statute to the single subject disclosed in the title.” Phinney v. Shepard Asylum, 88 Md. 636 . The use of vitrified bricks where sheet asphalt would not be serviceable does not detract from the scheme to pave with sheet asphalt, any more than the usé of stone or iron lintels and sills would prevent a house built of brick from being properly described as a brick house. The pavement is still an asphalt pavement though the gutters on either side of the