City of Baltimore v. Scharf

• Decision Date: 02 July 1880
• Citation: 54 Md. 499
• Parties: THE MAYOR AND CITY COUNCIL OF BALTIMORE, and CHARLES WEBB, Collector v. THOMAS G. SCHARF, CHAUNCEY BROOKS, and others.
• Court: Maryland Court of Appeals

54 Md. 499

THE MAYOR AND CITY COUNCIL OF BALTIMORE, and CHARLES WEBB, Collector v. THOMAS G. SCHARF, CHAUNCEY BROOKS, and others.

Court of Appeals of Maryland

July 2, 1880

APPEAL from the Circuit Court of Baltimore City.

The case is stated in the opinion of the Court.

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

James L. McLane, City Counsellor, for the appellants.

The Mayor and City Council of Baltimore was fully authorized to determine upon the necessity of having Baltimore street repaved with an improved and more durable pavement; and whether such repaving was required solely for the public convenience, or for the benefit of the owners of the adjacent property, or partly for one and partly for the other. Act of 1874, ch. 218.

The power of the Legislature to authorize local assessments is certainly not open to question in this State, and its exercise in relation to street paving in the City of Baltimore has been distinctly approved by this Court. Mayor, &c. vs. Moore, 6 H. & J., 375; Mayor, &c. vs. Hughes, Adm'r, 1 G. & J., 480; Burns vs. Mayor, &c., 48 Md., 198.

That the power to pave and assess the cost thereof upon adjacent property is a continuing power, not exhausted by its first exercise, and includes the power to repave with improved style of pavement, is, with the single exception of Pennsylvania, settled law in nearly every State of the Union. 2 Dill., Municipal Corporations, sec. 619; McCormack vs. Patchin, 53 Mo., 33; Gurnee vs. Chicago, 40 Ill., 165; State vs. Jersey City, 34 N. J. Law, 277; Gale vs. Cincinnati, 18 Ohio St., 563; Municipality vs. Dunn, 10 La. An., 57; Macy vs. Indianapolis, 17 Ind., 267; Lafayette vs. Fowler, 34 Ind., 140; Goszler vs. Georgetown, 6 Wheat., 597; Smith vs. Washington, 20 How., 135; Mayor, &c. of Cumberland vs. Willison, 50 Md., 138.

In this State, the power to repave without any application from the adjacent owners is expressly given to the Mayor and City Council of Baltimore by the second section of the Act of 1874, ch. 218. In the recent well-considered case of Burns vs. The Mayor, &c., of Baltimore, 48 Md., 198, the right of the City authorities, under this Act of 1874, ch. 218, to assess the cost of repaving Light street with Belgian blocks, upon the adjacent property owners, was directly presented. The ordinance appearing on its face to have been intended, not for the benefit of the property owners specially taxed under it, but for the benefit and convenience of the public at large, was declared unauthorized and void, so far as it attempted to enforce the special assessments. But the right of the City under this Act of Assembly, to pass a proper ordinance is distinctly recognized and sustained. ( Pages 203, 204.)

The power in question is a legislative power; and of the necessity and expediency of its exercise, the governing body of the corporation, and not the Courts, is to be the judge. Mayor, &c., of Baltimore vs. Moore, 6 H. & J., 375; Mayor, &c., of Baltimore vs Hughes' Adm'r, 1 G. & J., 480; Burns vs. Mayor, &c. of Baltimore, 48 Md., 204; McCormack vs. Patchin, 53 Mo., 33; Methodist Church vs. Mayor, &c., 6 Gill, 391.

The legality of the tax does not depend upon whether the paving does or does not in fact, benefit the particular property, but upon the object or motive of the corporation in causing the paving to be done; and it was, therefore expressly held in Hughes' Case, 1 G. & J., 480, that it was not competent to prove by oral testimony, facts to be ascertained by the corporation before laying the tax.

The ordinance of May 31st, 1876, is a valid exercise of the power granted by the Act of Assembly of 1874, ch. 218. And in the language of the case of Burns vs. Mayor, &c. of Baltimore, 48 Md., 205, 6, "looking to the enacting part of the ordinance alone, it is matter of conjecture that the work appeared to the corporation to be for the benefit of such owners, and in the absence of anything else on the subject, the presumption would be that it did so appear, and that the corporate authorities so adjudged and therefore did not exceed their powers."

That the city authorities considered the repaving of Baltimore street, with an improved pavement, to be a work required partly for the public convenience, and partly for the benefit and advantage of the adjacent property, could not be more unmistakably indicated than by the provision in the ordinance itself that the work should be done, and the cost assessed upon the public and adjacent property owners, in certain and specific proportions, plainly set out in the ordinance.

The ordinance is not open to the objection of delegating any discretionary power to the City Commissioner to select certain portions of the street to be repaved with Belgian blocks. On the contrary, as appears from the correct copy of said ordinance, filed with the answer, the City Commissioner was explicitly directed to have the whole street between the points designated repaved with Belgian blocks, the only discretion left to that officer being to determine to what extent, if at all, the new pavement necessitated rekerbing.

A complete answer to this suggestion of the bill is that, if the intention of the ordinance was to have the cobblestone pavement only repaired and patched in spots, with Belgian blocks, at the discretion of the City Commissioner, no special legislation whatever was necessary. It was already the duty of that public officer to repair the street from time to time, with such material and in such manner as he might think best, and he understood this ordinance as requiring him, in plain terms, to repave with Belgian blocks the whole street, and not to mend or patch it, as is now suggested by the complainants.

To the suggestion that because of the obligation imposed upon the City Passenger Railway Company by Ordinance No. 44, of March 28, 1859, to keep the portion of Baltimore street covered by its tracks, and for the space of two feet outside of said tracks, " in thorough repair," the Mayor and City Council of Baltimore has no power to assess upon the property-holders any part of the cost of repaving such portions of said street with Belgian blocks--the answer is obvious. This is not a question of repairing, but of repaving; not a question of keeping an existing pavement in condition for use, but of substituting for such pavement an entirely new one, of an improved and more durable style. No claim is here made by the city to specially assess the adjacent property for the cost of keeping the Baltimore street pavement in repair. The cost of such work, as already stated, has always been provided for out of the general fund, and the City Passenger Railway Company held to the obligation imposed upon it by the ordinance of 1859, to keep in repair the portion covered by its tracks. This obligation, it is well understood, is a continuing one, and attaches to the present new and improved style of pavement, or to any other style that the Mayor and City Council may hereafter substitute for it. But the obligation imposed upon the City Passenger Railway Company certainly does not extend to a case of repaving such as this. On the contrary, where it has been thought desirable to impose such an obligation upon street railway companies, an express stipulation to that effect has been inserted in the ordinance granting to such companies the right to lay tracks, in addition to the ordinary provision for keeping the streets in repair. The second section of the Act of 1862, ch. 71, confirming to the City Passenger Railway Company the privileges granted by the Ordinance No. 44 of 1859, subject to the terms of said ordinance, does nothing more, and professes to do nothing more, than confirm the obligation to repair, imposed by that ordinance.

Samuel Snowden and Orville Horwitz, for the appellees.

The repaving of Baltimore street having been done for the public convenience, the parties owning property thereon were not liable to be assessed for such repaving, and the ordinance under which such assessments were made, not being in accordance with the authority vested in the Mayor and City Council, by the Act of 1874, ch. 218, is therefore void. Burns vs. Mayor and City Council of Baltimore, 48 Md., 175,; Mayor & C. C. of Baltimore vs. Hughes, 1 G. & J. 480; Mayor & C. C. of Baltimore vs. Moore and Johnson, 6 H. & J., 375.

This case is different from the case of Burns, only in the fact that the ordinance itself does not show that the repaving was done for the public convenience. The evidence however shows that the repaving was only conducive to the public convenience, and not to the private benefit of the owners or occupiers of property on Baltimore street, between the streets named in the ordinance, or to the property itself. It is true that it was not necessary to state in the ordinance that the repaving was done for the benefit of the particular district, for if nothing to the contrary appears, such an exercise of the taxing power will be taken to be in pursuance of the authority given by the charter.

The ordinance is not conclusive, but the presumption is in favor of its validity. If, however, it appears either from the character of the improvement or from evidence aliunde that the benefit intended by the improvement is not peculiar to the locality covered by the ordinance, then the imposition of a tax upon the abutters is invalid. Burroughs on Taxation, sec. 33.

In the opinions of this Court before cited, the qualifying words " if nothing to the contrary appears," have been used limiting the expressions used by the Court in reference to the effect of such ordinances, and permitting the parties assessed to shew by facts aliunde the ordinance, that the city authorites passed the ordinance with the intent of...