Philadelphia, Baltimore & Washington Railroad v. Mayor of Baltimore

Urner, J., delivered the opinion of the Court. The Acts of 1910, Oh. 110, p. 639, authorized and empowered the Mayor and City Council of Baltimore to open, construct and establish a public highway in the city along or over the bed of Jones’ Ralls, and “to delegate to the Commission known as the ‘Commission on City Plan’ the duty and power of opening, constructing and establishing” the highway, and to confer by ordinance on the Commission the power to acquire by purchase or condemnation the property to be used in connection with the improvement, and such other powers possessed by the City in relation to the opening and construction of highways and acquiring property therefor as it might deem proper to be so delegated. It was enacted that “for the purpose of providing the moneys requisite for opening, constructing and establishing said highway, and purchasing or acquiring said property, the Mayor and City Council of Baltimore is hereby authorized to issue the stock of the said corporation to an amount not exceeding one million dollars ($1,000,000.00).” The Act required that the question of issuing the stock should be first submitted to the voters of the City, and it directed that before the City should proceed to open and construct the new thoroughfare, an ordinance for that purpose should be passed and the property to be acquired should be designated upon a plat. The approval of the voters having been given to the project, in the manner contemplated by the Act, and by section 1 of Article 11 of the ⁵⁰⁷ Constitution of the State, the Mayor and City Council passed an ordinance (Mo. 70, approved February 9, 1912)'author-izing the Commissioners for Opening Streets to condemn and open in pursuance of Chapter 110 of the Acts of 1910 the proposed highway over and along Jones’ Falis, to be known as the “Fallsway,” in accordance with a detailed description, and a plat duly prepared and filed, indicating the outlines of the improvement and condemnation.

A supplemental ordinance (No. 114, approved May 28, 1912) conferred upon the same Commissioners authority to acquire property for the highway by purchase or other voluntary method. In the course of their proceedings for the opening of the Fallsway the Commissioners for Opening Streets assessed certain sums as benefits against property belonging to the appellant. The present suit was then instituted with a view to having the City restrained from collecting the assessments on the ground that they were illegal and void. The specific points of objection were: first, that the cost of the highway was intended by the Act of 1910 to be paid out of the proceeds of the stock for which it made provision, and that consequently the City had no power to impose any part of the cost upon property owners by way of assessments for benefits; and, secondly, that the only body, to which the powers granted by the Act were authorized to be delegated, was the Commission on City Plan, and that the ordinances attempting to make such a delegation to the Commissioners for Opening Streets were, therefore, invalid and the proceedings of the Commissioners ineffective.

These questions, after the filing of the answer and general replication in the Court below, were proposed by the complainant and adopted by the Court as preliminary questions of law which it was convenient to have determined before the trial of any issue of fact in the case, as permitted by section 205 of Article 16 of the Code. The appeal is from an order sustaining the validity of the assessments as against each of the contentions thus submitted. The objection that benefits are not assessable on account of the improvements because a special fund has been appropri ⁵⁰⁸ ated for that object is fully met by the decision of this Court in Lauer v. Baltimore, 110 Md. 447 . In that case an assessment for benefits in connection with the opening of a street in the Baltimore City Annex was resisted on the ground that the Acts of 1904, Chapter 274, created a loan of two million dollars which was to “be used only for the purpose of providing the costs and expenses of condemning, opening, grading, paving and curbing the streets, avenues, lanes and alleys” of that portion of the City.

This position was held to be untenable. In the opinion, by Judge Thomas, it was said: “The right to assess property in particular localities to the extent that it is deemed specially benefited by local improvements is to be referred to the power of taxation and has been recognized and sanctioned in all the States. The theory on which such assessments are made is that, 'those whose property is thus enhanced, and who thus receive peculiar benefits from the improvements, should contribute specially to defray its cost.’ 1 Lewis, Eminent Domain, sec. 5 (2nd ed.); Gould v. Mayor, etc., of Baltimore, 59 Md. 378 ; Hagerstown v. Startzman, 93 Md. 609 . The power 1» make such assessments has been expressly granted to the Mayor and City Council of Baltimore and has been exercised by it for a long time.

Alexander v. Baltimore, 5 Gill, 383 .” The provisions of section 6 of the City Charter (Acts of 1898, Chapter 123) are quoted in the opinion to the effect that the Mayor and City Council are authorized to provide for laying out, opening, extending, widening, straightening or closing any streets, lanes, squares or alleys in the City and to provide for ascertaining damages and assessing benefits resulting from such improvements. The Act of 1904 created the Annex Improvement Commission, and authorized it to exercise certain specified powers in reference to the condemnation, opening, etc., of thoroughfares in the Annex, and such further powers and duties as the Mayor and City Council might deem necessary for the proper execution of the improvements designed, but it was provided that authority might be conferred by ordinance ⁵⁰⁹ upon the Commissioners for Opening Streets, in lieu of the first-named Commission, to carry out the purposes of the statute. By an ordinance passed in pursuance of this Act the Commissioners for Opening Streets were empowered and directed to perform the duties and functions provided hy the Act for the Annex Improvement Commission, and it was ordained that the procedure of the Commissioners in the premises should be “that now or hereafter prescribed by law in relation to their ordinary duties and powers of the same nature.” The procedure of the Commissioners for Opening Streets was thus generally defined in part by section 175 of the City Charter: “Whenever the Mayor and City Council of Baltimore shall hereafter by ordinance direct the Commissioners for Opening Streets to lay out, open, extend, widen, straighten or close up, in whole or in part, any street, square, lane or alley, within the bounds of this City, the said Commissioners, having given the notice required by law of their first meeting to execute the same, shall meet at the time and place mentioned in said notice, and from time to time thereafter, as may be necssary, to exercise the powers and perform the duties required of them by said ordinance, and shall ascertain whether any and what amount of value in damage will thereby be caused to the owner of any right or interest in any ground or improvements within or adjacent to the City of Baltimore for which, taking into consideration all advantages and disadvantages, such owner ought to be compensated; and the said Commissioners, having ascertained the whole amount of damages for which compensation ought to be awarded, as aforesaid, and having added thereto an estimate of the probable amount of expenses which will be incurred by them in the performance of the duties required of them, as aforesaid, and also of the expenses incurred by the City Register by reason of said proceedings, shall proceed to assess all the ground and improvements within and adjacent to the city, the owners of which, as such, the said Commissioners shall decide and deem to be directly benefited by accomplishing the object authorized * * *.” ⁵¹⁰ The Commissioners for Opening Streets being thus required by the City Charter to assess for benefits whenever they were directed by ordinance to act in connection with street projects, and having been charged in the Lauer case with the duty of following the procedure prescribed by law, it was held that they had full power to make the assessments there in controversy, and that the exercise of the authority thus expressly conferred should not be denied merely because of the creation of a special fund “for the purpose of providing the costs and expenses” of the improvement. This conclusion was predicated upon the general rule that exemptions from taxation are to be strictly construed; and since the charter expressly provided for such assessments, and the Act creating the special fund made no reference to the subject, there was found to be no support for the contention that the property affected by the proceedings before the Court was exempt from liability to be assessed on account of the resulting benefits.

The present case is controlled by the same considerations. There is nothing in the Act relating to the Fallsway to qualify or restrict the