Moale v. Mayor of Baltimore

Irving, J., delivered the opinion of the Court.. The hill in this case was for an injunction to restrain the -city authorities from selling the property of the complainants, the heirs-at-law of Randall H. Moale, for the payment of certain paving taxes assessed to the estate of Randall H. Moale, and claimed by the city to he a lien on the property. Demurrer was interposed, and the case was heard by the Circuit Court of Baltimore City, by consent •of parties, on bill and demurrer, without the granting of a preliminary injunction. After hearing, the bill was dismissed ; and this appeal is from the decree dismissing the bill.

By the Act of Assembly of 1874, ch. 218, the Mayor and City Council of Baltimore was empowered to provide, by ordinance, for the paving, grading, and kerbing of the .streets in the city, without application therefor by the owners of the property binding on such street, and to-■assess “ the cost of any such work in whole or in part pro ²³⁵ rata, upon the property binding on such street, lane or alley, or part thereof, and for collecting such assessments as other city taxes are collected.” In pursuance of this authority, and in attempted execution of the power conferred, the Mayor and City Council'passed, in 1874, Ordinance -number 63, and Ordinance number’88, for the paving of Hanover street. The first section of Ordinance Ho. 63 being found in error in providing for the paving of Hammond street instead of Hanover street, provided for in the title, that section was repealed by Ordinance Ho. 88 of same year, and a new section was substituted. That section is as follows: “ That the City Commissioner be, and he is hereby, authorized and directed to have Hanover street, from Clement street to the shore of the middle branch of the Patapsco river, graded, paved, and kerbed, and to assess upon the owners .of property on said street, between the streets named, their proportional part of the expenses of said paving, grading, and kerbing, in accordance with existing ordinances and Acts of Assembly.” The second section of the Ordinance 63, which was not repealed, and is to be.read with the section just quoted, is as follows: “And be it further enacted and ordained, that the collector of the city be, and he is hereby, directed to collect said expenses, when so assessed, from said property owners as other city taxes are collected.” 1. The appellants contend that these ordinances for the paving of Hanover street are void.

First, because the ordinance is not, as they insist, a proper execution of the power granted to the Mayor and City Council by the Legislature in chapter 218 of the Acts of 1874. It being necessary to strictly pursue the power granted, they insist the Council failed to do so, by directing the assessment to be made on the person, whereas the Legislature, in the Act, only authorized them to assess the expenses of paving on the property binding on the street, and in doing as they have, they have not confined the assessment to local prop ²³⁶ erty. Secondly, because the Mayor and Oity Council have delegated powers belonging only to them to the Oity Commissioner; and lastly, because of the front foot rule of assessment. The ordinances upheld in Scharf’s Case, 56 Md., 50 , and in the Johns Hopkins Hospital Case, 56 Md., 1 , are so nearly identical with the ordinance now attacked, it would seem that those cases ought to be conclusive against all the objections alleged as invalidating the ordinance.

It is true that the Act of 1874 does direct that the assessment be made pro rata on the property fronting on the street paved; but that was only intended to indicate the proportion in which the owners of property on the street were to be called on to contribute to the expense. It was to be apportioned ratably on the property on the street. It is difficult to see how the property could be assessed except as belonging to somebody, and of course that somebody would be the person to pay for the property, for the property could not pay for itself. It is umhrabtedly a personal debt to the extent of the property charged with the tax.

The tax was intended to be, and is, a lien on the property; and the owner, to that extent, is answerable for its payment, as íbr a personal debt of any other kind; but we do not wish to be understood, that his liability for that tax would extend beyond the value of the property taxed for the improvement. We do not understand that question, last suggested, to be involved, but we deem it proper to say we express no opinion on that aspect of the question until it arises. That it is a personal liability, we think the cases of Dashiell vs. Mayor, 45 Md., 430 ; the Gould Cases in 58 Md., 48 , and 59 Md., 378 , and the case of Handy vs. Collins, Execittrix, 60 Md. 229 , put beyond controversy. With respect to the contention, that the delegation of power by the Mayor and Oity Council to the Oity Commissioner is such as to render the ordinance void, we need only say that the last decision of the Scharf Case ²³⁷ and the decision in the Johns Hopkins Hospital Case , whereby the first opinion was set aside and a new view adopted by a majority of the Court, establish that the ordinance in question is not infirm on that account; and that neither the Act of Assembly of 1874, nor the ordinance is obnoxious to constitutional objection.

In the first opinion the position was distinctly taken, and argued out by the writer of this opinion, that there was such delegation of power to the City Commissioner as did invalidate the ordinance. That view of the case is not specially adverted to in the second opinion, which finally settled the case ; but inasmuch as the question was raised, and was necessary to the full decision of the case, and the ordinance could not be supported without concluding that objection to be untenable, it must be regarded as no longer an open question. The ordinance there and here, it will be seen in the further discussion of the case, are saved from that objection in the same way. Again, it is objected, that the ordinance cannot be supported because the front foot rule of apportionment has been adopted, and that in this case, by the application of the front foot rule, a portion of the property of the complainants, fronting on the street paved, has been taxed beyond its value, resulting in the destruction of the property, which natural right will not permit.

We do not understand the bill to present such a case as the argument suggests. If it did, it would raise a very grave question, whether the owner could be forced to pay the assessment in excess of such value, or be compelled to submit to a rule which, in effect, took his whole property from him. The suggestion of the possibility of such case illustrates the possible hardship of the rule, but we do not think this such a case. The bill alleges that of the part fronting on the east side of the street, which is in all six hundred and twenty ioet and nine inches, one hundred and twenty feet thereof consists of a strip forming a triangle near the in ²³⁸ tersection of McComas street with.

Hanover street, and is very narrow, being on one side only twelve feet deep ; and that this has been assessed by that rule as much as the rest, which is from one to two hundred feet deep. By the very showing’ of the bill, it is one continuous lot and frontage, and the assessment has been made upon the whole lot with full respect, no doubt, to its full situation, and it must be so treated. It is that whole lot which is bound for the assessment on it, as a whole j and part of it cannot be excepted, and exempted from the burden. Nor can the larger part of it be released from any part of the tax, because a part of the lot, if assessed by itself, would present a case of extreme hardship, if not fatal to the rule in such case.

Eor aught that appears in this case we see no reason to disturb the rule adopted and approved in the cases cited. . 2. Several exceptions are taken to the method of assessment by the City Commissioner, which are relied on to defeat the claim in whole or in part. First, it is contended that the ordinance requires the cost to be assessed on the property owner, whereas the assessment is made to-“the estate of Randall H. Moale.” This contention is. made on the assumption that we might overrule appellants’ first objections, as we have done. The assessment, was made in 1875.

Randall H. Moale died in 1864. The bill does not allege there had been a partition of the property, and from that fact, and the suit being joint, possibly we might be justified in supposing the property still enjoyed in common. But, however that may be, it would seem to be too narrow a point, and entirely too refined, and inequitably technical for a Court of equity to declare that the city shall lose the tax and, the appellants enjoy the benefits of the improvement without paying anything-therefor, by reason of such imperfect designation of the person or property taxed. In common parlance “the estate ” is not only understood to indicate the property,, ²³⁹ but the takers of it; and when it is said that an estate is charged with the payment of any claim, it is well understood that those who are to take, with the incumbrance, are to pay it, in due proportion among them.

Manifestly this language was adopted not only to designate the property, but also that the former owner was dead, and that there were successors in title whom it was more convenient to designate in mass without separately naming them. After charging “ the estate of Randall H. Moale ” as debtor, the assessment proceeds to describe the property particularly, and by metes and bounds. Thus it appears that the requirements of the Act of Assembly, strictly considered, have not been violated by the ordinance, and that whether the person or the property is to be assessed, in this case it is sufficiently done on both. Secondly.

The appellants insist that the assessment is void and cannot be eniorced, because the property holders-along the line of the street, and fronting