Dashiell v. City of Baltimore, to Use of Hax

• Decision Date: 01 March 1877
• Parties: NICHOLAS L. DASHIELL v. THE MAYOR AND CITY COUNCIL OF BALTIMORE, use of CHRISTIAN HAX and SON.
• Court: Maryland Court of Appeals

45 Md. 615

NICHOLAS L. DASHIELL v. THE MAYOR AND CITY COUNCIL OF BALTIMORE, use of CHRISTIAN HAX and SON.

Court of Appeals of Maryland

March 1, 1877

APPEAL from the Baltimore City Court.

This was an action of assumpsit brought by the appellee to recover from the appellant a paving tax, assessed on certain lots belonging to him, fronting on McCulloh street between Wilson street and North Avenue. The case was tried before the Court, without the intervention of a jury. The verdict and judgment were for the plaintiff, and the defendant appealed. The case is further stated in the opinion of the Court.

The cause was argued before STEWART, GRASON, MILLER, ALVEY and ROBINSON, J.

Arthur W. Machen, for the appellant.

Albert Ritchie, for the appellee.

MILLER J., delivered the opinion of the Court.

In this case an action of assumpsit was brought to recover a paving tax assessed on certain lots belonging to the appellant fronting on McCulloh street, between Wilson street and North Avenue. The exceptions taken to the rulings of the Court below, present numerous questions which this appeal makes it our duty to decide.

1st. Can the action be maintained? The paving was done and the tax assessed upon the owners of the adjacent lots, in the years 1870 and 1871, after the Act of 1870, ch. 282, and the City Ordinance, No. 78, of 1870, had been passed. The suit is by the Mayor and City Council of Baltimore, for the use of Christian Hax & Son, and was not instituted until the 7th of October, 1874, after the passage of the Act of 1874, ch. 218 and the Ordinance No. 44, of that year. It has been contended that the right of action is founded altogether upon the 35th section of the 43rd Article of the Code of City Ordinances of 1869, which makes it the duty of the City Collector, when required by any contractor having a claim for paving done by him, to commence a suit on behalf of such contractor, in the name of the Mayor and City Council against any person liable to the tax assessed on his property for such paving, and as this section was unconditionally repealed by the ordinance of 1874, no power existed to institute such an action when this suit was brought, and it must therefore fail. When this objection was first suggested we were under the impression it was fatal to the case, but further consideration of the subject has removed that impression.

The provisions immediately preceding this 35th section, direct how the tax shall be collected and what shall be done with the proceeds when collected. They make the taxes a lien on the property and require the City Collector to collect them "by distress or otherwise," and pay the same over to the City Register, and the City Commissioner is then directed to draw on the Register for the amount of the tax, and pay it over to the contractor when it may be collected. Then follows this 35th section which we have cited, authorizing a suit, and this, in our opinion, in no way interferes with the disposition of the proceeds previously directed. The fruits of judgments recovered in such suits, like collections made in any other way, are to be paid to the Register, and drawn upon by the Commissioner in favor of the contractor. The requirement that such suit shall be instituted by the Collector, on the written request of the contractor, simply confers upon the latter the privilege or power to compel the Collector to expedite or secure the collection of the tax, through one of the means it was his right and duty to employ, if found necessary, or at least to request of the Mayor and City Council authority to employ, whether the contractor requested it or not. We find nothing in the terms of this section, which makes it essential to a declaration in such an action to state that the suit is "for the use" of the contractor, or even that such use should be entered on the docket. It is to be brought "in the name of," that is by the Mayor and City Council, and is to be "on behalf" of the contractor, which means simply that it is to be prosecuted, in order that the tax may be collected and paid over to him as provided in the preceding sections. This seems to us the just construction of this section, and the privilege thereby conferred on the contractor was omitted from the Ordinance of 1874, solely because the latter provided a different mode by which he should be paid for his work, by the city. But apart from this, we are of opinion the action does not depend on this section of the Ordinances of 1869. In considering as we now are, the naked question whether or not the action lies, we can look only to the right of the legal plaintiff to maintain it. If the right of action is in him, it is wholly immaterial for whose use it may be brought, or who may be equitably entitled to the fruits of the judgment, for with that, the party sued has no concern. If the equitable plaintiff dies pending the suit, it does not abate, and his death is not the subject of a plea in abatement puis darrein continuance, nor is there any necessity for suggesting his death and bringing in his representatives. The suit goes on as if he were still living, or the use had never been entered. The judgment is entered in the name of the legal plaintiff and it is nothing to the defendant, who may be entitled to the equitable interest. State, use of Levy Court vs. Dorsey, et al., 3 G. & J., 75; Logan, et al. vs. State, use of Nesbitt's Adm'rs, 39 Md., 177. This leads us to the question, had the Mayor and City Council of Baltimore the right to bring this action? As to this we think there can be no doubt. The Act of 1870 conferred upon the city directly, the power to collect these taxes as other city taxes are collected. The Act of 1874 gave the power "to provide by ordinance" for collecting them in the same way, and the ordinance, No. 44, of that year, by section 10, directed the Collector to collect such tax bills as other city taxes are collected. But it is clear if these laws and ordinance had provided no remedy, or had given other remedies without expressly taking away the remedy by this action, the city would still have had the power to bring it. That was expressly decided in Howard's Case, 6 H. & J., 383, where an action of assumpsit was brought by the city to recover a paving tax imposed under the Act of 1797, ch. 54. That Act authorized the tax but gave no remedy for its collection, and the objection was that the action was improperly conceived, inasmuch as the Act of 1796, ch. 68, authorized the collection of all city taxes by distress or action of debt, and it was contended they could be recovered in no other way. But in answer to this, the Court said "where no particular remedy is given, the action of assumpsit will lie on the principle that where the law gives a claim to one against another, it raises an implied assumpsit on the legal obligation to pay," and if the tax were imposed by virtue of the Act of 1796, "it would make no difference, for the giving a remedy by distress or action of debt is cumulative only and does not take away the action arising by implication on the legal obligation to pay a claim created by law." It can make no difference in the application of this principle, that by subsequent legislation the amount of the tax is regulated by the charge of the contractor for doing the work and incidental expenses. The tax is still levied by the city in pursuance of authority delegated by the State, and the obligation of the tax-payer thus created is to pay to the authority which imposes the tax. By paying the tax to the City Collector, or by discharging a judgment recovered in an action of assumpsit brought in the name of the city for its recovery, he is discharged whether the city pays it over to the contractor or not. For these reasons we think this objection cannot be sustained.

2nd. The next objection seeks to give a broader and deeper signification and effect to the Act of 1874. It is insisted that though the paving was done and the tax duly levied under the Act of 1870, yet inasmuch as that Act was repealed by that of 1874, without reservation of existing rights accrued and perfected under the former statute, the tax is stricken down and the right to recover it gone. For this proposition is cited the rule stated by TINDAL, C.J., which is repeated in all the text books, and generally received and accepted by the Courts, that "the effect of repealing a statute is to obliterate it as completely from the records of the parliament as if it had never passed, and it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced prosecuted and concluded whilst it was an existing law." But can this rule be applied in all its rigor to the legislation we are now considering? The Constitution of the State (Art. 3, sec. 29) provides that, it shall be the duty of the General Assembly in amending any Article or section of the Code of Laws of this State to enact the same as the said Article or section would read when amended. " This provision was doubtless intended to facilitate reference to the laws and future codifications of the same. By it whenever any amendment, no matter how slight, of any section of the existing Code is found necessary, which under the old system would be effected by a supplemental Act that would leave the original law in full force, it can only be made by re-enacting the whole of the original section with the addition which the new law makes. In obedience to this constitutional requirement a legislative practice has grown up of making enactments touching the sections of the Code in the form of """repeal and re-enactment," whether the purpose be to retain the old and add to it by way of amendment, or to change the section altogether by making new provisions in...