Lyon v. Town of Hyattsville
| Decision Date | 10 February 1915 |
| Docket Number | 1. |
| Citation | 93 A. 919,125 Md. 306 |
| Parties | LYON v. MAYOR, ETC., OF TOWN OF HYATTSVILLE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Prince George's County; Fillmore Beall, Judge.
Suit by Emma V. Lyon against the Mayor and Common Council of Hyattsville, for an injunction. From a decree dismissing the bill, complainant appeals. Affirmed.
A. P Mullen, Hosea B. Moulton, and Wm. J. Neale, all of Washington, D. C., for appellant.
Vincent A. Sheehy, of Washington, D. C., for appellee.
This is an appeal from a decree of the lower court denying an injunction and dismissing the bill of complaint filed by the appellant against the appellee. The bill alleges that the plaintiff (appellant) is the owner of a tract of land in Hyattsville, beginning on the west side of the Washington and Baltimore turnpike, now known as Maryland avenue, at the middle of Arundel avenue, and running thence west along said middle of that avenue 358 feet, thence north, at right angles to said avenue, 378 feet to the middle of Calvert avenue thence east along the middle of Calvert avenue, and parallel with Arundel avenue, 410 feet to the west side of the turnpike, or Maryland avenue, thence south 8 1/3 degrees west along said turnpike or Maryland avenue 110 feet to a corner thence south 7 degrees along the west side of said turnpike 274 feet to the beginning, and that said property is improved by a dwelling house and other improvements. The object of the bill is to prevent the collection of an assessment of $269.38 against the plaintiff's property for a sewer that was built by the defendant (appellee), and to have said assessment set aside and declared void. An order to show cause why the injunction should not issue was passed, and an answer was filed by the appellee. The case was submitted on bill and answer, and hence the answer must be taken as true so far as responsive to the bill. Miller's Eq. Proc. 317-322, 686. The brief of the appellant relies mainly on the claim that the assessment by the lineal foot is a taking of private property without due process of law and a violation of the fourteenth amendment to the federal Constitution, but as other questions are suggested, we will also consider them.
Under the authority of that act ordinances were passed for the construction of the sewer in question, and there was an assessment of $269.38 on the property of the appellant, but it was assessed in the name of her husband, W. C. Lyon. That sewer was constructed on Maryland avenue to Carroll avenue, which is north of Arundel avenue, and then out Carroll avenue. It runs 366.50 feet in front of the appellant's property on Maryland avenue. The appellant contends that this was not an extension of the present sewerage system, and that the town was only authorized to extend the sewer of 1904 from some point at which it ended. We will content ourselves by quoting from the opinion of Judge Beall as to that ground. He said:
2. The second reason assigned is equally without merit. It is contended that the new sewer is in part a duplication of an existing one, and that there was no authority for such construction. It is true that for some distance south of Arundel avenue the new sewer is parallel with the old one on Maryland avenue, but the answer effectually disposes of that objection. In the first place it denies that such duplicate sewer was in front of the appellant's property, or that said property was in any way affected thereby, or that appellee has attempted to assess any part of the costs of such duplicate sewer against the appellant's property, or any other property, but it alleges that the duplication was owing to the existing conditions. In order to have a proper grade in the extension of the sewer on Maryland avenue, north of Arundel avenue, it was necessary, in the opinion of the engineer in charge, to begin south of Arundel avenue, and it was begun about midway between the latter and Maple avenue. After the sewer of 1904 was laid the state roads commission had taken over Maryland avenue and had macadamized it and made a first-class roadway out of it. The appellee found upon investigation that it would be cheaper to run a parallel sewer for the distance spoken of than to tear up the road, place the old sewer deeper and then repair the road. It, therefore, laid that part of the new sewer on the side of the avenue, where it was not macadamized, which was undoubtedly proper and cheaper, if the allegations in the answer are correct, as we must assume them to be.
3. In reference to the reason assigned that the property of the appellant is not benefited by the construction of the sewer it would perhaps only be necessary to refer to the case of Hyattsville v. Smith, 105 Md. 318, 66 A. 44. Judge Burke, in speaking for the court, after referring to certain fundamental maxims in the law of taxation, stated by Judge Cooley, said:
"Two others, which have been long and firmly fixed in the law of this state, may be added: First, that the Legislature has the power of taxing particular districts for local benefits or improvements; and, secondly, to authorize a municipal corporation to open, grade, pave, curb, etc., any street, or part of a street, and to assess the cost of doing such work upon the property binding on such street, or part thereof, and that in the absence of any declaration of intent to the contrary the presumption would be that the Legislature considered that the purpose for which the tax or assessment was levied was a public purpose, and that the improvement would inure to the special benefit and advantage of the adjacent owner upon whose property the assessment is laid."
A number of Maryland cases are then cited by him, and we would also refer to Bassett v. Ocean City, 118 Md. 114, 84 A. 262; Alberger v. Baltimore, 64 Md. 1, 20 A. 988; French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879; 4 Dillon on Municipal Corporations (5th Ed.) 2522.
4. The next objection is that the assessment of the cost of the sewer upon the abutting property, according to the frontage of each parcel, is a taking of private property without due process of law, and contrary to the fourteenth amendment to the federal Constitution. In Hyattsville v. Smith, supra, we sustained an assessment made according to the front-foot rule under a section of the charter of Hyattsville very similar to the one under which this improvement was made, as we also did in Bassett v. Ocean City, supra, and Baltimore v. Johns Hopkins Hospital, 56 Md. 1. Unless, therefore, the appellant is correct in his contention that the Supreme Court of the United States has decided otherwise, the question is settled in this state.
The case relied on by the appellant is Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443. While there are expressions in that case which might seem to sustain the position of the appellant, the Supreme Court has explained that decision, and has pointed out that it was not intended to adopt the rule which some courts thought it had established. In French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879, the case of Norwood v. Baker was referred to at some length, and a number of authorities were considered, and it was held that (quoting from the syllabus):
"The apportionment of the entire cost of a street pavement upon the abutting lots according to their frontage, without any preliminary hearing as to benefits, may be authorized by the Legislature, and this will not constitute a taking of property without due process of law."
The court, quoting from and approving Dillon on Municipal Corporations, said:
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Washington Suburban Sanitary Com'n v. Evans
...benefitted thereby. French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879 (1901); Lyon v. Mayor and Common Council of Hyattsville, 125 Md. 306, 93 A. 919 (1915). It is equally clear that the construction of water and sewer facilities adjacent to property conveys a sp......