Holt v. Moxley

• Decision Date: 30 October 1929
• Docket Number: 3.
• Citation: 147 A. 596,157 Md. 619
• Parties: HOLT v. MOXLEY ET AL.
• Court: Maryland Court of Appeals

147 A. 596

157 Md. 619

HOLT v. MOXLEY ET AL.

No. 3.

Court of Appeals of Maryland

October 30, 1929

Appeal from Circuit Court, Prince George's County; J. C Mattingly, Judge.

Action by James T. Holt, for himself as a landowner and taxpayer of the Town of Brentwood, in Prince George's County, and all other landowners and taxpayers who would come in and be made parties to the suit, against Lloyd Moxley and others, to restrain defendants from doing certain acts. From a decree for defendants, plaintiff appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, OFFUTT, DIGGES PARKE, and SLOAN, JJ.

F Murray Benson, of Baltimore, for appellant.

L Harold Sothoron and P. Michael Cook, both of Washington, D. C., for appellees.

SLOAN J.

The appellant, who sues for himself as a landowner and taxpayer of the town of Brentwood, in Prince George's county, and all other landowners and taxpayers who would come in and be made parties to the suit, filed his bill in the circuit court for Prince George's county, for the purpose of attacking the validity of the act of 1929, chapter 142, which empowered the mayor and town council of Brentwood to improve any of the streets of the town, to borrow money for the improvements, and to levy the cost on any street against the property abutting on the streets so improved. The bill alleged that the appellant owned land abutting on Dewey street in the town, and prayed an injunction restraining the appellees from doing any act under the provisions of the act of 1929 and from levying or collecting from any of the real estate on Dewey street for the cost of paving the same.

The ground of the attack on the act of Assembly was that its provisions were not sufficiently set forth in the title of the act as required by section 29 of article 3 of the Constitution of Maryland.

The defendants (appellees) answered, admitting all of the allegations of the bill except the charge of unconstitutionality of the act of Assembly, and then made the defense that: "The case of Frederick C. Clough et ux. v. Lloyd V. Maxley et al. Equity No. 7080, decided by this court on January 24, 1928, was a suit against the herein named defendants, brought by the same class of plaintiffs as the plaintiff herein, involved the same act of the General Assembly of Maryland as herein involved, and the same relief was prayed for as in the case before this court, which relief was denied and the case decided against the plaintiff; that the decision of the court was not appealed from and the decree became final; that the plaintiff herein did not move to be made a party plaintiff or intervene in the said suit of Clough et ux."--all of which proceedings were prayed to be made a part of the answer.

The case was submitted to the circuit court on bill and answer, and the decision being favorable to the contention of the defendants that the subject-matter of the suit was res judicata, the plaintiff appealed.

The appellant contends that he had no knowledge of the suit of Clough against the appellees, though it is not so alleged in either bill or answer, and that unless he had such knowledge he is not bound by the former decree. This court has held in many cases that where a party is interested in the subject-matter of a suit and knowingly allows it to be pursued to a final decree without intervening or participating in the proceedings, he may be bound by the result. See Snavely v. Berman, 143 Md. 75, 77, 121 A. 842; Perkins v. Le Viness, 134 Md. 252, 262, 106 A. 705; Bernstein, Cohen & Co. v. Stansbury, 119 Md. 316, 318, 86 A. 349; Abramson v. Horner, 115 Md. 232, 246, 80 A. 907; Murphy v. Coale, 107 Md. 198, 68 A. 615; Williams v. Snebly, 92 Md. 9, 21, 48 A. 43; Albert v. Hamilton, 76 Md. 304, 309, 25 A. 341; Parr v. State, to use of Cockey, 71 Md. 220, 235, 17 A. 1020.

The plaintiffs in both cases are residents of Brentwood, and both sought to enjoin the same prospective liens for paving on Dewey street. Clough was unsuccessful in his attempt, but abided by the result of his endeavor, which sustained the constitutionality of the act of Assembly authorizing the paving lien. The appellant asked the same court to reverse itself on the precise question and on the same facts alleged in the Clough Case, and from an unfavorable decision asks this court to reverse the second decree, because he is not bound by the decree in the Clough Case for the sole reason that knowledge of the first suit must be brought home to this appellant. In the case of McIntosh v. Pittsburg (C. C.) 112 F. 705, 707, a resident of Iowa owning property in Pittsburg, through which the city undertook by an ordinance to open and extend a street, brought suit to enjoin the city. The defense was a former adjudication of the subject-matter of her suit, and though it seems not to have been pretended that she knew anything about the former litigation or of the passage of the ordinance under attack, the court said: "Knowledge of the passage of this ordinance, * * * must be imputed to the complainant." This must be true, or there can be no such thing as "class" or "virtual" representation. If it were otherwise, it would be necessary to make every one of a class a party to the suit or have a succession of suits until all of the class had been personally bound by decree.

As to the right of taxpayers to seek relief in equity against unlawful assessments and the attitude of courts toward such procedure and the effect of decrees in such cases, it is said in Pomeroy's Equity Jurisprudence (3d Ed.) 449, § 270: "Notwithstanding the adverse decisions, the weight of judicial authority in favor of this conclusion and of exercising the jurisdiction under every form of local assessment, general tax, municipal debt or other public burden by which taxation would be increased is very decided. On principle, no distinction can be discovered between the case of such tax-payers and the instances in which the jurisdiction has been repeatedly exercised and fully established on behalf of a common body of separate claimants. Each tax-payer has a remedy by action at law; but it is to the last degree inadequate and imperfect, and often nominal, since he must wait until the wrong against himself has been accomplished before he can obtain redress; and at best, the rights of all can only be secured even in this incomplete manner by an indefinite number of litigations. By means of the equitable jurisdiction the whole controversy and the rights of every individual tax-payer can be finally determined in one judicial proceeding by one judicial decree. This is not a plausible theory; it is a fact demonstrated in the constant judicial experience of numerous states."

The doctrine or principle of class representation as to taxpayers and property owners which the appellee urges as applicable to this case is stated in 1 Freeman on Judgments (5th Ed.) § 437, as follows:

"Where a taxpayer or property owner brings an action against a city, county or other public corporation or its officers upon a matter of public and general interest to all other taxpayers or property owners of such political sub-division, and the action either expressly or by necessary implication is on their behalf, they are equally bound by the adjudication and a judgment on the merits is a bar to any subsequent proceeding by them or any of them, seeking similar relief under the same facts. The principle of mutuality makes such a judgment or decree equally conclusive in favor of other citizens and taxpayers. The fact that the first proceeding is in mandamus and the second in equity, or vice versa, is immaterial. The rule governing the effect of a decree in such a suit in equity is the same as though the proceedings had been in the name of the State or its

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