City of Baltimore v. Johns Hopkins Hospital

• Decision Date: 17 March 1881
• Citation: 56 Md. 1
• Parties: THE MAYOR AND CITY COUNCIL OF BALTIMORE, AND CHARLES WEBB, Collector of Taxes v. THE JOHNS HOPKINS HOSPITAL, and others.
• Court: Maryland Court of Appeals

56 Md. 1

THE MAYOR AND CITY COUNCIL OF BALTIMORE, AND CHARLES WEBB, Collector of Taxes v. THE JOHNS HOPKINS HOSPITAL, and others.

Court of Appeals of Maryland

March 17, 1881

APPEAL from the Circuit Court of Baltimore City.

Under Ordinance No. 68, of the Mayor and City Council of Baltimore approved June 26th, 1878, authorizing and directing the City Commissioner, to have Pratt street, between Jones' Falls and Howard street repaved in a specified manner, the City Commissioner proceeded to have the work done. When the expense of the work was ascertained, and it became necessary to provide for it, the City Commissioner charged one-third under the direction contained in the Ordinance, to the Mayor and City Council of Baltimore, and assessed the remaining two-thirds upon those persons only who were owners of property on Pratt street between the prescribed limits, among whom were the appellees. The City Commissioner in determining the amount which the appellees as such owners, should respectively pay, adopted the rule of assessment by the front foot of property binding on the line of the improvement. The bill in this case was filed by the appellees, who subsequently filed an amended bill. The object of the bill was to restrain by injunction the Mayor and City Council of Baltimore, and Charles Webb, collector of taxes, from collecting the assessments imposed upon the complainants. A pro forma decree was passed annulling the assessments imposed, and perpetually enjoining the collection of the same. From this decree the respondents appealed.

The cause was argued before BARTOL, C.J., MILLER, ALVEY, ROBINSON and IRVING, J.

Thomas W. Hall, City Solicitor, and James L McLane, City Counsellor, for the appellants.

It is conceded that the Act of 1874, ch. 218, which repeals all former Acts upon the subject, and from which all present powers of the Mayor and City Council, in regard to the paving, &c., of streets, and the collection of paving assessments, are derived--makes absolutely no provision whatever for notice of any kind. It is said, however, that this omission of the Legislature, does not dispense with the necessity of notice in order to warrant the exercise of the powers conferred by this Act, and it is intimated that the omission may be supplied by municipal legislation. The analogy relied upon, however, as being furnished by the requirement (by Act of Legislature) of previous notice, in order to warrant the passage of Ordinances to open and condemn streets, wholly fails in its application to Ordinances to pave or repave streets already opened and condemned, and in use as public highways.

The subject-matter of the two classes of Ordinances is wholly distinct. An Ordinance to condemn private property for the purposes of a street or highway, is an exercise of the power of eminent domain delegated pro hac vice, by the Legislature to the municipality. It is subject to all constitutional restrictions in regard to the "taking of private property for public uses," which can only be done by "due process of law." It involves a necessary co-operation or concurrence of the legislative and judicial functions--the legislative, to decide upon the necessity and extent of the "taking"--the ""judicial" to legalize the taking and to determine the measure of compensation. Every such "taking" is, or may become "a case in Court," and require the intervention of a jury; hence notice may well be deemed essential, to give jurisdiction, and to initiate proceedings in such cases. Mayor, &c., of Baltimore vs. Ritchie, 51 Md., 233; Kohl vs. U. S., 91 U.S. S. C., 367-376.

On the other hand, an Ordinance to pave or repave a public highway, and to impose a tax for the purpose, is a purely legislative measure. The power of the Legislature to legislate for such purposes is not dependent upon notice to the parties to be affected by its exercise--otherwise all road-laws and all State and county taxes levied for the repairs of bridges and highways, passed without notice, would be void.

The imposition of a paving-tax or assessment, is an exercise of the taxing-power, and not of the power of eminent domain. The Greenmount Cemetery Co's Case, 7 Md., 517; Cooley on Cons. Lim., 620; Cooley on Taxation, 429-430; Dill. on Mun. Cor., secs. 589 and 590; 2 Dill. on Mun. Cor., secs. 589 and 596.

The supposed analogy fails in another particular. The statutory provision referred to, requiring previous notice of any Ordinance to open and condemn streets, is that before any such Ordinance shall be passed, "at least sixty days' notice shall be given of any application for the passage of such Ordinance," &c. Public Local Laws, Art. 4, sec. 838.

There is a distinction between proceedings to open and condemn, and proceedings to pave, &c., and the fact that notice is not required in the latter class of proceedings has been decided by this Court in Dashiell's Case, 45 Md., 616, 625-6.

The analogy also relied upon as being furnished by the Act of 1870, ch. 322, is equally at fault. That Act undoubtedly required notice, both by publication and by personal service, (in certain cases,) to authorize the grading, paving, &c., of streets, and assessments upon the property holders therefor. It was notice, however, not of the assessment, but of " the determination" to grade, pave, &c. and a right of appeal to the Baltimore City Court, and a jury was given by the Act to any person " aggrieved by such determination."

In the case of an Ordinance to grade, pave, &c., under the Act of 1874, ch. 218, sec. 2, the Ordinance itself is the "determination," and it is made FINAL, and no right of appeal to any Court is given. The reason for notice which existed in the one case, wholly fails in the other.

The necessity of notice is insisted upon as a fundamental constitutional maxim. If so, it must apply as well to laws passed by the Legislature as to Ordinances of the Mayor and City Council. What then shall be said of the laws passed at every session, without notice by the Legislature, authorizing local improvements, the cost whereof is required to be defrayed by local assessments, and the validity of which laws and asessments has been repeatedly sustained by this Court? In principle, it is not easy to distinguish between an Act of the Legislature, passed without " notice," authorizing the construction of a bridge, and assessing the cost upon the taxable property on opposite sides of the stream, and an Ordinance for paving a highway and assessing the cost upon the property holders on opposite sides of the street.

The claim now advanced would also seem to make notice essential to the validity of the assessment, independently of any question of the validity of the Ordinance. And the cases of Stuart vs. Palmer, 74 N. Y., 183, and Davidson vs. New Orleans, 6 Otto, 104, are relied upon to support this position.

These cases of notice relied upon to sustain the position of the appellees, are not in point.

The proceedings before the Commissioners for Opening Streets, are quasi-judicial. They have for their object the "taking of private property for public uses," and ascertaining its value. The Legislature has coupled with this inquiry the further duty of estimating the benefits which may accrue to other property from such "taking" and public use. The proceedings are in the nature of an inquisition into benefits and damages--subject to an appeal to a jury and to review by a Court. The assessment of benefits in such case is referred to the sound discretion and judgment of the assessors. It is a judicial act. This was the mode of assessment provided for in the New York case above referred to, (page 186.)

Both Stuart vs. Palmer, and Davidson vs. New Orleans, were cases of "assessment made by assessors or Commissioners appointed for the purpose under legislative authority, and who are to view the estates and to levy the expense in proportion to the benefits, which, in their opinion, the estates respectively will receive from the work proved." Cooley on Taxation, 448. While this is the case of "an assessment by some definite standard fixed upon by the Legislature itself, and which is applied to estates by measurement of length, quantity or value." Cooley on Taxation, 448.

It was upon the very ground that the assessment was arbitrary and discretionary with the assessors, that the New York Court of Appeals held that notice was necessary. It was the right of the party assessed, to be heard, and to offer evidence, if necessary, upon the question of benefits.

"On the other hand, and on like reasoning, it has been held equally competent to make a street a taxing district, and assess the expense of the improvement upon the lots in proportion to the frontage. Here also is apportionment by a rule which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute equality. But if, in the opinion of the Legislature, it is the proper rule to apply to any particular case, the Courts must enforce it." Cooley on Con. Lim., 631, 632.

No such question can possibly arise in any case of assessment for paving or repaving in the City of Baltimore.

The assessment is not upon the property believed to be benefited in "the judgment of" the City Commissioner. The Act of Assembly is specific in its directions. The tax is to be assessed upon the property binding on the street which is paved or repaved, as the case may be. It is to be assessed, it is true, " pro rata" upon such property, but there never has been any doubt as to how that pro rata should be ascertained. There is but one rule or method of assessment for paving or repaving authorized or followed in Baltimore City since its first incorporation by the General Assembly, and that is the rule of...