City of Baltimore v. Ulman

• Citation: 30 A. 43,79 Md. 469
• Parties: MAYOR, ETC., OF BALTIMORE ET AL. v. ULMAN.
• Decision Date: 21 June 1894
• Court: Court of Appeals of Maryland

30 A. 43

79 Md. 469

MAYOR, ETC., OF BALTIMORE ET AL. v. ULMAN.

Court of Appeals of Maryland

June 21, 1894

Appeal from circuit court of Baltimore city.

Bill by Clementine Ulman, by her husband and next friend, Alfred J Ulman, against the mayor and city council of Baltimore, and others, to enjoin the collection of special assessments. There was a decree for plaintiff, and defendants appeal. Reversed.

Argued before ROBINSON, C.J., and BRYAN, McSHERRY, FOWLER, BRISCOE PAGE, and BOYD, JJ.

Wm. S Bryan and Thos. G. Hanes, for appellants.

M. R Walter, for appellee.

BOYD J.

In the year of 1887 the authorities of the city of Baltimore graded, paved, and curbed North avenue between Pennsylvania avenue and the western city limits. This was done under what was known as "Ordinance No. 100 of 1886," passed under the supposed authority of Acts 1874, c. 218. In Ulman v. Mayor, etc., 72 Md. 587, 20 A. 141, and 21 A. 709, this court decided that the assessment levied on Mrs. Ulman's property under that ordinance was null and void, as it "made no provision for notice to and hearing of any proprietor whose land adjoined North avenue, upon the question, what proportion of the tax should be assessed upon his land," and hence was taking property without due process of law. The majority of the judges who sat were of the opinion that the case of Spencer v. Merchant, 125 U.S. 345, 8 S.Ct. 921, was applicable, and, being a federal question, this court was bound by it, and hence felt constrained to overrule a number of cases which had been decided by this court. The legislature, at its first session after the decision of the Ulman Case, passed two acts--chapter 219 of the Acts of 1892, being amendatory of section 810 of article 4 of the Public Local Laws (which was a codification of the Acts of 1874, c. 218), and chapter 284 of the Acts of 1892--authorizing the mayor and city council of Baltimore to levy special assessments, and to provide for the collection thereof, upon property binding on any street, etc., which had been graded, etc., and under any ordinance which provided for assessing the whole, and any portion of the cost of such work upon the property binding on such street, etc., and which assessments, for any cause, had not been fully collected. The mayor and city council passed an ordinance known as "No. 84 of 1893," which, after referring in the preamble to the passage of Ordinance No. 100 of 1886, what was done under it, the decision of this court declaring the assessment null and void, and to the passage of chapter 219 (claimed by the appellants to mean chapter 284) of the Acts of 1892, in substance, directed (1) the city commissioner to give 10 days' notice in two of the daily newspapers published in Baltimore that at the time and place mentioned he would ascertain and determine the amount of tax to be assessed upon all the property binding on North avenue, between Pennsylvania avenue and the western city limits, upon which the assessment levied under Ordinance No. 100 had not been paid, for the special benefits which had been derived by said property from the grading, etc., of said portion of North avenue; that after hearing all persons interested, who desired to be heard, he shall proceed to apportion among the different pieces of property binding on said portion of said North avenue, upon which the assessment levied under No. 100 was not paid, the total cost of the grading, etc., of said portion of North avenue, with interest thereon from the time the claim was paid by the city to the day he made such apportionment, less the amount paid by those who had paid under Ordinance No. 100, provided the tax assessed against any piece of property should not be more than the amount which the said property had been specially benefited by the grading, etc., of said portion of North avenue; that he might adjourn from time to time to give all parties an opportunity to be heard, and after the hearing he was required to make out a list of the property and the owners, together with the amount to be paid by each piece of property, and deliver a copy, with an explanatory plat, to the city register, and then provided that such taxes should be liens. (2) That the city register, within five days after the proceedings were left in his office, should notify all persons interested, by advertising once a week for two successive weeks in two of the daily newspapers in the city, that the said assessments and explanatory plats had been so placed in his office, and that the parties affected thereby were entitled to appeal to the Baltimore city court. (3) That the city commissioners should serve written or printed notices on each party so assessed or taxed, but that service of such notice should not be construed a prerequisite to the collection of the tax. (4) That any person dissatisfied with any assessment in which he was in any manner interested could appeal to the Baltimore city court, where the proceedings should be similar to those in the case of trials of street appeals, and the same right should be had to appeal to the court of appeals. (5) That within 10 days after the time limited for appeals, or after the decisions in case of appeal, the city register should turn over the lists to the city collector, who should proceed in all respects as he does in cases where persons or property are assessed for benefits for opening, closing, etc., any street, lane, or alley. The appellee filed a bill giving a history of the several acts of assembly and ordinances, alleging that the city collector was about to sell her property for the want of payment of the assessment alleged to have been made under Ordinance No. 84, and claiming that Acts 1892, c. 284, and Ordinance No. 84, were null and void. The bill prays that said act, Ordinance No. 84, and assessment under it, be declared null and void; that all the proceedings in making said assessment be vacated and set aside; that the appellant and city collector be enjoined. A number of objections to the act of assembly and ordinance, and proceedings thereunder, are stated in the bill, which will be hereinafter passed upon. The appellants filed their answer, admitting, for the most part, the history of the proceedings, as stated in the bill, but alleging that the act of assembly and ordinance, and all proceedings under them, were valid. The case was submitted to the court below on the bill and answer, and a decree pro forma was passed, declaring Ordinance No. 84, and the assessment thereunder, null and void, and perpetually enjoining the collection of the assessment. From the pro forma decree, an appeal was taken by the city.

Some of the objections urged by the appellee questioned the validity of chapter 284 of the Acts of 1892 and Ordinance No. 84, while others only apply to the method of proceeding on the right to recover, if the statute and ordinance be valid. As the former class of objections attack the very foundation of the assessment, we will consider them first, without attempting, however, to wholly distinguish the two classes on some points raised.

The first question that naturally suggests itself is, had the legislature power to pass any statute to accomplish the purposes indicated in the preamble of this act? The case of Spencer v. Merchant, supra, clearly establishes that it had. It is not necessary to discuss how far such a law could affect property that had been bona fide transferred from the owner of the property at the time the work was done to some one who had no notice that the property was liable to such a claim, as in this case the title remained in the person whose property is alleged to have been specially benefited. We must therefore go a step further, and inquire into the validity of this particular statute. In the opinion delivered on the motion for a rehearing in Ulman's Case, we expressly stated, on pages 610 and 611, 72 Md., and page 711, 21 Atl. that there was ample power in the original act of 1874 (chapter 218) to enable the city to pass ordinances that would not be subject to the constitutional objection passed on in that case. On page 593, 72 Md., and page 141, 20 Atl., it quoted from Spencer v. Merchant, where it was said that "if the legislature provided for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question, what proportion of the tax shall be assessed on his land? there is no taking of this property without due process of law." And on page 594, 72 Md., and page 141, 20 Atl., in further quoting from that case, it was said, "The statute of 1881 (being the one in controversy) afforded the owners notice and hearing of the question of the equitable apportionment among them, and thus enabled them to contest the constitutionality of the statute, and that was all the notice and hearing to which they were entitled." The act of 1892 authorized the appellants "to provide by ordinance for the levy and collection, in such manner as they may deem proper, of a tax upon all of the property binding upon any street, lane or alley, or part thereof which may have been so improved, to the extent that such property shall have been specially benefited by such improvement; provided that no property upon which the assessment originally made for its share of the cost of such improvement shall have been paid shall be again assessed." The requirements of the act are to take the total assessment formerly made for improvements, then deduct the amount paid, and assess the balance on the properties within the defined limits, to the extent that they have been, respectively, specially benefited by the improvement. That was as certain...