Carr v. Town of Hyattsville

• Decision Date: 19 April 1911
• Citation: 81 A. 8,115 Md. 545
• Parties: CARR v. MAYOR, ETC., OF HYATTSVILLE.
• Court: Maryland Court of Appeals

81 A. 8

115 Md. 545

CARR v. MAYOR, ETC., OF HYATTSVILLE.

Court of Appeals of Maryland

April 19, 1911

Appeal from Circuit Court, Prince George's County; Fillmore Beall, Judge.

Action by C. Franklin Carr against the Mayor and Common Council of Hyattsville. From a judgment dismissing the bill on demurrer plaintiff appeals. Affirmed.

Jackson H. Ralston, Frederick L. Siddons, and William E. Richardson for appellant. Vincent A. Sheehy, for appellees.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.

BURKE J.

By Acts 1910, c. 305, section 21 of the act of 1908, chapter 79 of the Public Local Laws of Prince George's county, was repealed and re-enacted as sections 21a, 21b, and 21c. These sections, which were intended to be amendments to the charter of Hyattsville in Prince George's county, provided for the construction of sidewalks, curbs, gutters, and roadbeds and certain definite and quite full provisions were made by the act for street improvement, for raising money for that purpose, and for the assessment of the cost of the work upon the abutting land. By section 2 it was declared that the act should have no force or effect "unless the same shall be approved by a majority of the votes cast at a special election to be held in the said town of Hyattsville, and that the said special election shall be held at the same time and place as the election to be held in the said town on the first Monday in May, 1910, for mayor and common council for said town, for which said special election ballots shall be prepared having printed on them 'For the Act to Improve the Streets,' and 'Against the Act to Improve the Streets.' If at said election the majority of the votes cast shall be 'For the Act to Improve the Streets,' then and in that event the act shall have full force and effect, or if, on the contrary, the majority of the votes cast shall be 'Against the Act to Improve the Streets' then this act shall be null and void." The act was submitted as provided to the voters of the town of Hyattsville at the election held therein on the first Monday in May, 1910; but the ballots voted at that election had printed on them the words "For the Road Bill," and "Against the Road Bill," instead of the words, "For the Act to Improve the Streets," and "Against the Act to Improve the Streets," as directed by the act. The majority of the ballots cast at the election were marked "For the Road Bill," and, after canvassing the vote, the mayor and common council declared the act to be in full force and effect. Acting under the power conferred by the act, the mayor and common council passed an ordinance for the improvement of the road bed of Spencer street, one of the streets of the municipal corporation, and also providing for notice to the owners of abutting property, and for the assessment for the cost of improvement against such property.

The appellant is the owner of fee-simple lots abutting on the south side of Spencer street in the town of Hyattsville. He filed his bill of complaint in the circuit court for Prince George's county for an injunction to restrain the mayor and common council from making any assessment against his property for the improvement of the roadbed of Spencer street, and from enforcing any assessment against his property for that improvement, and for other and further relief.

After reciting the facts we have stated, the bill charges that the mayor and common council of Hyattsville, against the objections of the appellant, "directed that Spencer street be forthwith macadamized, and that a notice of the intention of the mayor and common council so to do be published in the two local papers, which action was taken, all of which will more fully appear by reference to exhibit C hereto attached, and made a part hereof; that the said mayor and common council are now proceeding to macadamize said Spencer street, and are threatening to levy an assessment for the cost thereof against the property abutting on said street, of which the plaintiff is the owner of three lots, as hereinbefore set forth; that they are further threatening that in the event that said assessment shall not be duly paid to cause the property of this petitioner to be sold in the same manner as taxes due the town of Hyattsville are enforced under the provisions of chapter 79 of the Acts of the General Assembly of 1908, and that meanwhile such assessment constitutes an apparent lien and cloud upon the title of the plaintiff, and interferes with the beneficial enjoyment of his property." The ground upon which the relief prayed for is asked is that the act under which the municipality is acting in improving the street has never become effective and operative, because the ballots cast at the election were not prepared in strict conformity to the requirements of its provisions. The defendant demurred to the whole bill. The lower court sustained the demurrer and dismissed the bill, and from this ruling the plaintiff has brought this appeal.

It is not alleged that the voters were deceived, misled, or confused by the form of the ballot as actually prepared. Nor is there any charge of fraud...