City of Baltimore v. Gahan

• Decision Date: 04 October 1906
• Citation: 64 A. 716,104 Md. 145
• Parties: MAYOR, ETC., OF CITY OF BALTIMORE et al. v. GAHAN.
• Court: Maryland Court of Appeals

64 A. 716

104 Md. 145

MAYOR, ETC., OF CITY OF BALTIMORE et al. v. GAHAN.

Court of Appeals of Maryland

October 4, 1906

Appeal from Circuit Court of Baltimore City; Henry Stockbridge Judge.

Suit by William H. Gahan against the mayor and city council of the city of Baltimore and others. From a decree for plaintiff defendants appeal. Affirmed.

Jones J., dissenting in part.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PEARCE, SCHMUCKER, JONES, and BURKE, JJ.

W. Cabell Bruce and Albert C. Ritchie, for appellants.

R. B. Tippett, for appellee.

McSHERRY C.J.

On June 15, 1906, Ordinance No. 150 adopted by the mayor and city council of Baltimore was approved. It is known as the "Bruce-Fendall Ordinance." By its first section it provided for the paving of 19 designated streets of the city, no one of which is situated in the annex. Seven were directed to be paved with prepared wood blocks, 2 with asphalt blocks, 1 with Belgian blocks and 9 with sheet asphalt, asphalt blocks, or bitulithic, as, under section 3, might be determined by the mayor, the president of the second branch of the city council, the comptroller, the city register, and the city solicitor after the bids had been submitted and opened. All of this paving was required to be done in accordance with specifications to be prepared by the city engineer, who was directed to advertise for proposals for performing the work on each of the named streets or parts of streets. By the fourth section it was ordained that if the bids for doing the work on any of the 9 streets for which the paving material is prescribed by the first section in the alternative shall in the judgment of the board of awards be excessive, and if the board shall reject all the alternative bids, the city engineer should do the paving with vitrified bricks; and if the bids for doing the work on the streets required to be paved with treated wood blocks shall in the judgment of the board be excessive and shall be rejected by the board, then the city engineer should pave those streets with treated wood blocks by day labor. By section 5 the whole cost of paving the 19 streets was limited to $214,500. Pursuant to this ordinance the city engineer prepared and issued specifications for the laying of asphalt block, sheet asphalt, and bitulithic pavements on Woodbrook avenue and on each of the other 9 streets required to be paved with one of the 3 materials thus named in the alternative. Each set of those specifications was complete and definite in itself, and each furnished the bidders on the respective materials to be used with a common basis or standard upon which to submit their bids as to each of said kinds of pavements. The specifications are entirely different from each other and call respectively for pavements which are wholly dissimilar, except in so far as they are all composition pavements. On the same day on which the ordinance was approved the city engineer duly advertised that sealed proposals would be received until 11 a. m. of June 27th to grade, curb, and pave with sheet asphalt, asphalt blocks, or bitulithic the 9 streets required by the first section of Ordinance No. 150 to be paved with such one of the three designated materials as the board named in the third section might select. Woodbrook avenue is one of those 9 streets, and when the bids referring to it were opened it was found that there were two bids on asphalt blocks, 4 on sheet asphalt, and 2 on bitulithic. The lowest bid on the first-named article was $2.10, on the second it was $1.84, and on the third it was $2.15 per square yard. The board then selected asphalt blocks as the material with which to pave Woodbrook avenue and awarded the contract to the Maryland Pavement Company; its bid being lower than the only other bid on the same material, but being higher than any of the bids on sheet asphalt. Two days later William H. Gahan, a taxpayer in the city, filed a bill in equity in the circuit court of Baltimore City against the city and the successful bidder, assailing Ordinance No. 150 as null and void, and the proceedings taken thereunder as unlawful, because, first, the ordinance attempts to delegate to the mayor, the president of the second branch of the city council, the city solicitor, the city comptroller, and the city register, or a majority of them, the power to select which one of the alternative kinds of materials specified in the ordinance should be used in the paving of the 9 streets named therein, which power, it is averred, can only be exercised lawfully by the mayor and city council acting in its legislative capacity by an ordinance duly passed and approved specifically prescribing the material with which the streets shall be paved; secondly, because by the process of bidding on alternative materials sections 14 and 15 of the charter (Laws 1898, pp. 274, 275, c. 123) were violated; and, thirdly, because the fourth section of the ordinance requires the city engineer, if all the alternative bids are rejected, to pave the streets with vitrified bricks by day labor, which provision is also alleged to be contrary to the same sections of the charter. An injunction to restrain the execution of the contract and to prohibit the doing of the work was prayed for. The city and the Maryland Pavement Company both demurred to the bill of complaint. The demurrers were overruled, and, the defendants declining to answer, an injunction issued in accordance with the prayer of the bill. From that order this appeal was taken, and the case was argued on August 8th during a special session of this court convened to hear this and the two preceding paving cases. On the 9th of August a decree was signed reversing the decretal order appealed against, and we now proceed to give our reasons in support of that action.

As the second of the three grounds upon which the Bruce-Fendall ordinance is attacked is precisely the same proposition which we have just fully and at length considered in the case of Mayor, etc., Balto. v. Flack et al., 64 A. 702, we need say nothing further in regard to it than that for the reasons given in that case it cannot be sustained in this and we pass at once to the other grounds above indicated; and both of them, it seems to us, are founded upon a misconception of the meaning and effect of the ordinance. Does the Bruce-Fendall ordinance delegate to the board of awards legislative authority, which can only be lawfully exercised directly by the mayor and city council itself by ordinance? Acts 1904, p. 492, c. 274, which was construed in the preceding cases, has nothing to do with the question, since the act relates solely to streets in the annex portion of the city and to the $2,000,000 loan with the avails of which those streets were to be paved, whilst the 9 streets, including Woodbrook avenue, designated in the first section of the ordinance now before us as those in respect to which alternative bids are to be and were asked for, are not within the annex, and the paving of them is to be paid for out of the $214,500 included in the levy of 1906 made for that special purpose. Hence the charter of the city, and not the act of 1904, must be looked to for the data needed to furnish an answer to the question. By section 6 of the city charter, subdivision entitled "Streets, Bridges and Highways" (Laws 1898, p. 260, c. 123), the mayor and city council are empowered "to provide by ordinance for grading, shelling, graveling, paving, and curbing *** of any lane, street, or alley in said city; *** to provide by general ordinance *** for the grading, graveling, shelling, paving, or curbing *** of any street, lane, or alley *** without the passage of a special ordinance in the particular case, whenever the owners of a majority of front feet of property binding on such street, lane or alley *** shall apply for the same, upon terms and under conditions to be prescribed in the same general ordinance," etc. The principle is a plain one, that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others. Thus where by charter or statute local improvements, to be assessed upon the adjacent property owners, are to be constructed in "such manner as to the common council shall prescribe" by ordinance, it is not competent for the council to pass an ordinance delegating or leaving to any officer or committee of the corporation the power to determine the mode, manner, or plan of the improvement. 1...