Commissioners of Cambridge v. Cambridge Water Co.

• Decision Date: 09 June 1904
• Citation: 58 A. 442,99 Md. 501
• Parties: COMMISSIONERS OF CAMBRIDGE v. CAMBRIDGE WATER CO.
• Court: Maryland Court of Appeals

58 A. 442

99 Md. 501

COMMISSIONERS OF CAMBRIDGE v. CAMBRIDGE WATER CO.

Court of Appeals of Maryland

June 9, 1904

Appeal from Circuit Court, Dorchester County; Henry Lloyd, Judge.

Action by the commissioners of Cambridge against the Cambridge Water Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER. BRISCOE, BOYD, PEARCE, and SCHAMUCKER, JJ.

J Watson Thompson and Clement Sulivane, for appellant.

W Laird Henry and Frederick H. Fletcher, for appellee.

SCHMUCKER J.

The commissioners of Cambridge, a municipal corporation, sued the Cambridge Water Company in assumpsit for money claimed to be due from the company to the commissioners for unpaid license fees upon fire plugs. The defendant filed three pleas, to which the plaintiff demurred. The court overruled the demurrer, and, the plaintiff declining to answer further final judgment was entered for the defendant, from which the plaintiff appealed.

The ordinance on which the plaintiff relied in asserting its claim requires all persons using or maintaining fire plugs, telephone poles, or other structures therein mentioned, in any of the streets or alleys of the town of Cambridge, to annually, during the month of November, file with the town clerk and treasurer a list of all such plugs, etc., and pay to him during the month of December a fee of $2 for each plug, etc. The ordinance also imposes a penalty upon owners of plugs, etc., who fail to comply with its provisions. The present case was brought to the July term, 1903, and the declaration alleged that the defendant on or before the 1st day of November, 1902, and ever since then, had used and maintained 36 fire plugs on the streets of Cambridge, but had wholly failed to file a list thereof with the town clerk and treasurer, or to pay the fee of $2 per plug, or otherwise to comply with the terms of the ordinance. We do not deem it necessary to discuss the several matters set up in defense of the action by the pleas, because the filing of the demurrer to them requires us to examine all of the pleadings and render judgment against the party committing the first substantial error, and such an examination discloses a material defect in the declaration. The allegations of that instrument, even when aided by the act of 1900, p. 510, c. 339, reincorporating the plaintiff, of which, as a public local law, the court must, under the ruling in Slymer v. State, 62 Md. 242, take judicial notice, fail to show that the plaintiff was invested with power to lawfully enact the ordinance requiring the payment of the fees for the recovery of which the suit was instituted. The fees which this ordinance attempts to impose upon the owners of the structures therein enumerated are plainly not ordinary taxes levied upon duly assessed property in proportion to its assessed value. They are conceded in the briefs of counsel for both parties to be license fees.

The authorities generally hold that the power to impose license taxes or fees upon persons or corporations engaged in the pursuit of a particular occupation is not inherent in municipal corporations, and will never be held to exist unless it has been conferred by the state upon the municipality either in express terms or by necessary implication. 1 Dillon on Mun.Corps. § 361; Horr & Bemis on Mun.Ord. 8 256; McQuillan on Mun.Ord. § 256; Fowle v Alexandria, 3 Pet. 398, 7 L.Ed. 719; Wilkie v. Chicago, 188 Ill. 450, 58 N.E. 1004, 80 Am.St.Rep. 182; Delcambre v. Clere, 34 La.Ann. 1050; Shuman v. Ft. Wayne, 127 Ind. 109, 26 N.E. 560, 11 L.R.A. 378; Danville v. Shelton, 76 Va. 325; Am. & Eng.Encycl. (2d Ed.) vol. 21, pp. 782, 783. In State v. Rowe, 72 Md. 548, 20 A. 179, this court held invalid an ordinance of the mayor and city council of Baltimore providing that no person should be permitted to use Centre Market for the sale of fish and crabs without first obtaining a license therefor from the clerk of the market. It was sought to uphold the ordinance as a legitimate exercise of the power conferred upon the city by article 4, §§ 671, 678, Code Pub.Loc.Laws, which authorized it "to erect and regulate markets," and "lease, sell or dispose of the stalls and stands in any market in any manner and for any term it might think proper." The court in the opinion in that case say: "It is well-established law that municipal authorities can exercise no powers which are not in express terms or by fair and reasonable intendment conferred of them. In St. Mary's Indust. School v. Brown, 45 Md. 332, this court adopts the language of the Supreme Court of the United States in Minturn v. Larue, 23 How. 435 , that 'any ambiguity or doubt arising out of the terms used by the Legislature must be resolved in favor of the public.' It must be by express grant or fair and reasonable intendment that a municipal corporation can get authority over the...