Bassett v. Ocean City
| Decision Date | 11 April 1912 |
| Citation | 84 A. 262,118 Md. 114 |
| Parties | BASSETT v. MAYOR AND CITY COUNCIL OF OCEAN CITY. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Worcester County; Robley D. Jones, Judge.
Action by Mayor and City Council of Ocean City against Mollie Bassett. Judgment for plaintiff, and defendant appeals. Affirmed.
Wm. F Johnson and Frederick J. Singley, for appellant. John W Staton and Robert P. Graham, for appellee.
By the act of 1904, c. 658, several new sections were added to the charter of Ocean City, giving the mayor and city council authority to provide for the improvement of the streets, sidewalks, etc. Section 8b, with which we are more particularly concerned in this case, provides as follows:
"The mayor and city council Of Ocean City be and they are hereby authorized and empowered to require and enforce the grading regrading, improvement, maintenance and repairs of the public streets, gutters, sidewalks, alleys and ways of the town by the placing of pavements, curbing, shells, dirt, board walks or other improvements of such material and kind as in the discretion of the mayor and city council may seem proper, at the expense of the owners of the abutting property, and in case of a failure of such owner or owners of such property to make such improvements or repairs in the manner and of such materials as directed by the mayor and city council within sixty days after written notice thereof by personal service on such owner or owners, or by mailing such notice to the last known post office address of such owner or owners, then the said mayor and city council have the power and authority to proceed to make such improvements or repairs and assess the costs thereof to the owner or owners of the abutting property in proportion to the frontage of such property, such assessment to be collected as municipal taxes are collected by law in said city; and the said mayor and city council are hereby given full power and authority to appoint, employ and compensate all officers, agents, servants or employés that may, in the exercise of their discretion, seem necessary or advisable to carry into effect the provisions of this and the preceding or any other section of the charter of Ocean City."
In pursuance of the authority conferred by this section, the mayor and city council, on the 10th of December, 1908, passed Ordinance No. 102, requiring the owners of property abutting on certain streets and avenues of the city to construct pavements and board walks, as directed by the ordinance, according to specifications adopted by the mayor and city council. After the expiration of the 60 days mentioned in section 8b of the act, Ordinance No. 302 was introduced for the construction by the mayor and city council, at the expense of the owners of the abutting property, of such of the pavements and board walks referred to in Ordinance 102 as had not been constructed under that Ordinance; and on the same day another ordinance was passed, directing notice to be given to all persons concerned that Ordinance No. 302 had been introduced, and that the mayor and city council would meet at a certain time and place for the purpose of hearing any objections to it and considering its passage. In accordance with said notice, the mayor and city council met at the time and place appointed; and, after hearing and considering all objections. Ordinance No. 302 was passed. It provided that after the completion of the pavements and board walks therein referred to all persons interested should be given an opportunity to object and to be heard before the cost of the same was assessed upon their property. Accordingly, after the construction by the mayor and city council of the pavements and board walks provided for in Ordinance No. 302, notice was given to those concerned that the mayor and city council would meet on a certain day to consider the assessment of the cost of such improvements upon the abutting property, and to hear any objections thereto; and, after such objections were heard and considered, the mayor and city council passed an ordinance assessing the costs of the pavements and board walks upon the abutting properties according to their frontage on the streets and avenues referred to in Ordinance No. 302, and requiring the assessments to be collected from the owners of said properties.
The appellant was the owner of a property fronting 50 feet on the west side of Atlantic avenue, Which avenue is between the properties west of it and the Atlantic Ocean. In accordance with the provisions of Ordinance No. 302, the mayor and city council constructed a board walk 24 feet wide on the west side of said avenue, and the amount of the assessment therefor upon the property of the appellant was $185. The appellant having refused to pay this amount, suit was brought to recover it in the circuit court for Worcester county by the mayor and city council, and the appeal in this case is from a judgment in its favor.
At the conclusion of the case, the defendant asked "the court to rule that under the pleadings and evidence in this case the plaintiff is not entitled to recover," and the only exception in the case is to the refusal of the court to grant that prayer. The prayer was entirely too general and indefinite, and was properly rejected. Dorsey v. Harris, 22 Md. 85; W. M. R. R. Co. v. Carter, 59 Md. 306; Pearre v. Smith, 110 Md. 531, 73 A. 141.
The narr. contained the common counts and a special count. The defendant filed the general issue plea and the plea of payment to the common counts, and demurred to the special count of the declaration, which demurrer was overruled, and this appeal brings up for review the ruling of the court below on the demurrer.
The special count of the declaration sets out the provisions of section 8b of the act of 1904, and alleges that the defendant was the owner of the property on Atlantic avenue; that the mayor and city council of Ocean City passed the ordinance requiring the defendant and others to make certain improvements, and that she was duly notified, etc.; and that the mayor and city council made the improvements referred to in said ordinance and assessed the cost of the same upon the property of the defendant, in proportion to the frontage of said property, to the amount of $185, which amount the defendant refused to pay. But this count omits the necessary allegation that the defendant failed to make the improvements provided for by the ordinance within 60 days after the notice required by section 8b of the act. Until there had been such a failure on the part of the defendant, the mayor and city council was not authorized by section 8b to make the improvements, and to assess the cost thereof upon the abutting properties. We think this count of the declaration was defective, and that the learned court below erred in overruling the demurrer; but the judgment in the case should not be reversed because of such error. It has been repeatedly held in this state that, where an act authorizes a tax, it may be recovered in an action of assumpsit. Mayor, etc., of Baltimore v. Howard, 6 Har. & J. 383; Dashiell v. Baltimore, 45 Md. 615; Appeal Tax Court v. W. M. R. R. Co., 50 Md. 274. All of the evidence necessary in order to establish the plaintiff's right to recover was admissible under the common counts, and no evidence in the case was admitted under the special count that was not admissible under the other counts of the declaration; and the defendant was not, therefore, injured by the overruling of her demurrer.
It is earnestly contended on behalf of the appellant that the board walk on the west side of Atlantic avenue was constructed for the benefit of the public generally, and that the cost of it cannot be assessed upon the property fronting thereon. The answer to this contention is that there is nothing in the section of the act referred to to show that the improvement was made without regard to special benefits to the property fronting on said avenue. Burns v. Baltimore, 48 Md 198; Baltimore v. Johns Hopkins Hospital, 56 Md. 1. It is the settled law in this state that the cost of the improvement of a street may be assessed, in whole or in part, upon the property binding on the street. In the case of ...
To continue reading
Request your trial