City of Baltimore v. Horn

• Decision Date: 16 January 1867
• Parties: THE MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. JOHN HORN et al.
• Court: Maryland Court of Appeals

26 Md. 194

THE MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. JOHN HORN et al.

Court of Appeals of Maryland

Jan. 16, 1867

Appeal from the Circuit Court of Baltimore City:

The appellees filed their petition in the Circuit Court of Baltimore City, praying for an injunction to restrain the appellants from further proceedings in collecting the assessments levied upon the appellees, and other owners of lands, on the line of North avenue, for the payment of the expenses of grading said avenue. The appellants answered the petition, justifying their action under the Acts of 1864 chs. 188 and 344. The cause was heard upon the petition and answer, and an order passed by the court, (Alexander, J.,) restraining the appellants from further action. From this order this appeal was taken. For a full statement of the case, see the opinion of this court.

The cause was argued before BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, JJ.

Wm Price and C. L. L. Leary, for the appellants:

The only question raised upon this record is this, is the Act of 1864, ch. 344, entitled, "An Act to authorize the Mayor and City Council of Baltimore to collect and receive from the property holders on both sides of North avenue, as well in Baltimore County as in the City of Baltimore, the sums severally assessed to them for the grading of said avenue," a valid exercise of legislative power? The intention of this law is apparent from the preamble, of the Act of the same session, ch. 188, entitled, "An Act to provide for paying the costs and expenses of grading North avenue," etc., and from a consideration of the resolution of the Mayor and City Council, No. 202, approved 26th of October, 1863, above referred to. The object sought to be accomplished by this legislation was the payment of the expenses incurred by the corporation in grading North avenue. In Baltimore v. Porter, 18 Md. 298, this court say "That the City Commissioner had no legal power or authority to cause North avenue to be graded, and that all his proceedings in the premises were coram non judice and void. The grading of this avenue was done under the authority of the Act of 1856, ch. 164, but the provisions of that Act were not pursued by the city authorities, and the decision of the court is founded upon the irregularity of these proceedings. The Act of 1856, ch 164, in providing for the payment of the expenses of this work, adopts, according to the opinion of this court in Porter's Case, the principle applied by the Act of 1838, ch. 226, of awarding damages and assessing benefits in paying the expense of opening, widening and extending the streets of the city. It contemplates the necessity of taking private property for public use. Now, is the Legislature precluded from applying by subsequent legislation a different principle, or from adopting a different mode of estimating and paying the expense of this work? We say that it is not. And this is simply and substantially the effect of, and the office performed by, the Act of 1864, ch. 344. In the opening and widening of streets, it frequently becomes necessary to take and to destroy private property, which cannot be lawfully done without making compensation to the owner. This is an exercise of the right of eminent domain which was delegated by the Act of 1856, ch. 164. But in grading North avenue no such power was exerted. No private property has yet been taken for the public use. But the work has been completed and paid for by the city, and the Legislature in the exercise of its taxing power by the Act of 1864, ch. 344, authorizes the city to reimburse itself by collecting the assessments previously made, although made without the proper legislative sanction. It authorizes a mode of paying the expenses of this work different from that provided by the prior Act of 1856. Instead of the system of awarding damages and assigning benefits, as was contemplated by the Act of 1856, ch. 164, in analogy to the law providing for the opening and widening of streets, the Act of 1864, by authorizing the collection of the assessments made by the City Commissioner, simply adopts the mode of assessment according to the number of front feet, provided by law for paying the expense of grading and paving the streets of the city. It operates retroactively. It is a legislative ratification of the proceedings of the city under the Act of 1856, ch. 164, and relates back to the acts of the City Commissioner and makes them valid. It adopts retroactively the same mode of paying the expense of grading North avenue, as is applied in grading and paving the streets of Baltimore City. It is nothing more than an exertion of the taxing power of the Legislature, while the Act of 1856, ch. 164, is an exercise of the right of eminent domain; and the Legislature has an equal constitutional right to pass either, and to select and apply either system in paying the expenses of this great improvement. See Moale v. Baltimore, 5 Md. 314, as to the distinction taken between the exercise of the right of eminent domain and of the taxing power. "That the imposition of a paving tax is an exercise of the taxing power, and not of the right of eminent domain, we entertain no doubt." Baltimore v. Greenmount Cemetery, 7 Md. 536.

The constitutionality of the laws and ordinances by which the grading and paving of streets in the City of Baltimore are regulated, has been repeatedly affirmed by this court. Steuart v. Baltimore, 7 Md. 500. Howard v. First Ind. Church, 18 Md. 455.

There can be no doubt of the power of the Legislature to pass retrospective laws affecting civil rights and remedies, where private vested rights are not invaded, and no vested rights have been disturbed in this case. Goshen v. Stonington, 4 Conn. 209. Welch v. Wadsworth, 30 Conn. 149. Simmons v. Hanover, 23 Pick. 194. Baugher v. Nelson, 9 Gill, 305, 306.

The Act of 1864, ch. 344, cannot be construed as an exercise of judicial power. It authorizes the Mayor and City Council "to collect from the several owners of the property fronting on both sides of North avenue the sums of money heretofore assessed," etc.

How then can the city collect these assessments except by appealing to the judicial authority of the State? And how can this Act of Assembly be tortured into a "legislative judgment" against the citizen, when all the parties affected by its operation can be reached only by judicial process, and can avail themselves of the "trial by jury" at their own option.

Wm. F. Frick and Brown & Brune, for the appellees:

There are various grounds upon which this Act must be determined to be unconstitutional and void, the most prominent of which is:

1. That it is undoubtedly an exercise of judicial power. As such, it is in direct violation of the 8th and 23rd Articles of the Declaration of Rights. These Articles, as expressed in the same language in former Constitutions, have been repeatedly construed and expounded by this court and declared to be intended as salutary restraints upon the Legislative Department, which it is the province of the Judicial Department to enforce. If the Legislature incautiously, or otherwise, steps beyond the strict limits of its authority, and attempts in any way to exercise judicial power, it is the duty of the courts to declare its act unwarranted by the Constitution, that being the paramount law to which all departments of the Government must yield. Though it is difficult to lay down any general rule by which it may be determined whether the Legislative Department oversteps the limit of constitutional restraint, it is quite clear, that it has no power to interfere so as to change or affect the decision of cases pending in the courts according to the "law of the land;" that is, according to "the due course and process of the law," to deprive the citizen, in any case affecting his life, liberty or property, of the right to the "judgment of his peers;" that is, to "trial by jury," or to change, modify or set aside the judgments or decrees of courts when made, which would (except for such legislative interference) be final and conclusive between the parties. These are well recognized special instances in which legislative action is unauthorized and void.

It would be difficult to present a plainer case than this, of improper interference by the Legislative with the Judicial Department. The validity of the assessments created "by the warrant of the City Commissioner, of November 18th, 1857," and the right of the Mayor and City Council of Baltimore to collect the same, constituted the immediate subject matter of litigation in Porter v. Baltimore, 18 Md. 284, in the Circuit Court of Baltimore City, and afterwards in this tribunal as a court of last resort. That subject matter was one purely and wholly of judicial cognizance and determination. It was adjudged "according to due course and process of law," and by and through the final decree of this court, the assessments in question were declared void, and the Mayor and City Council of Baltimore, by the authority of this court, were perpetually enjoined and prohibited from any proceedings in, or attempt at, their collection. And yet, the Legislature assumes, in the face of this judicial action, to "authorize and empower" the Mayor and City Council of Baltimore to collect these identical assessments. The mere statement of the case seems to be a sufficient argument. Constitution of 1864, Art. 8 and 23 of the Declaration of Rights. Crane v. Meginnis, 1 G. & J. 476. Regents Univ. of Md. v. Williams, 9 G. & J. 410, 411. Berrett v. Oliver, 7 G. & J. 206. Miller v. State, 8 Gill, 148. Wright v. Wright, 2 Md. 452. Denny v. Mattoon, 2 Allen, 377. Menzies v. Dentler, 33 Pa. St. 495. McDaniel v. Correll, 19 Ill. 226. Reiser v. Wm. Tell Savings Fund, 39 Pa. St. 144.

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