Mayor, etc., of City of Annapolis v. Harwood

• Decision Date: 02 June 1870
• Citation: 32 Md. 471
• Parties: THE MAYOR, RECORDER AND ALDERMEN OF THE CITY OF ANNAPOLIS v. WILLIAM HARWOOD and HESTER A. HARWOOD, his Wife.
• Court: Maryland Court of Appeals

32 Md. 471

THE MAYOR, RECORDER AND ALDERMEN OF THE CITY OF ANNAPOLIS v. WILLIAM HARWOOD and HESTER A. HARWOOD, his Wife.

Court of Appeals of Maryland

June 2, 1870

APPEAL from the Circuit Court for Anne Arundel County, in Equity.

The bill in this case was filed on the 17th of March, 1869, by the appellees against the appellants and one Edward Powers who was employed by them as a tax collector in the city of Annapolis, to restrain said Powers from selling the property of the appellees for payment of their proportion of a special tax for paving a street in said city. The injunction was issued as prayed. Afterwards the appellants answered and in their answer moved for a dissolution of the injunction. The defendant Powers failed to answer. The cause having been argued and submitted upon bill, answer, exhibits and general replication, a decree was passed on the 4th of Jan'y 1870, making the injunction perpetual. From this decree the present appeal was taken.

The cause was argued before BARTOL, C.J., STEWART, MAULSBY and ROBINSON, J.

S Thomas McCullough and Alexander B. Hagner, for the appellants.

The decree of the 4th of January, 1870, should be reversed for the following reasons:

1st. Because the same was passed improvidently, the answer of one of the defendants not having been filed, and no decree interlocutory obtained against him, and the cause was not then ready for decree. Eden on Injunctions, 1 Water., 116, 1 n., (1); Depeyster vs Graves, et al., 2 John. Ch. Rep., 148; Heck vs. Vollmer, et al., 29 Md., 507.

2d. Because the appellees' bill does not aver such a case of impending, irreparable damage as justifies the interposition of a Court of Equity by injunction. Hamilton, et al. vs. Ely, et al., 4 Gill, 34, 37; Fort and Wife, et al. vs. Groves, 29 Md., 188, 192, 193; Chesapeake and Ohio Canal Co. vs. Young, 3 Md., 480, 485, 489; Green vs. Keen, 4 Md., 98, 100, 106; Amelung, et al. vs. Seekamp, 9 G. & J., 468, 473, 474; Shipley vs. Ritter, et al., 7 Md., 408.

3d. Because if the averments of the bill were sufficient, yet the answer of the appellants swears away the equities relied on, and the injunction should therefore have been dissolved. Dorsey, et al. vs. Hagerstown Bank, 17 Md., 408, 412.

4th. Because even if the Court below were right in sustaining the injunction, yet it should only have been retained until final hearing, and should not have been made perpetual at that stage of the case. Dorsey, et al. vs. Hagerstown Bank, 17 Md., 408, 412, 413; Huston, et al. vs. Ditto, et al., 20 Md., 306, 332; Mills vs. Hoag, 7 Paige, 18 : Cooke vs. Bay, 4 Howard, (Miss.,) 485.

5th. Because the charter of Annapolis, as actually passed by the Legislature on the 19th of March, 1867, expressly confers upon the corporation the power to "tax any particular part or district of the city for paving the streets, lanes and alleys therein;" and the Court should be governed by the law which really did pass when it is brought to their notice, rather than by a form of a statute which never did pass the Legislature, although erroneously printed in the volume of laws. 6 Bac. Ab., 364; Sedgwick on Stat. & Con. Law, 69; People vs. Purdy, 2 Hill, 31; Thomas vs. Dakin, 22 Wend., 9; Warner vs. Beers, 23 Wend., 103, 112, 114, 135, 137, 140; Comm'l Bank of Buffalo vs. Sparrow, 2 Denio, 101; Spangler vs. Jacoby, 14 Illinois, 297, 298, 299, 300; Prescott vs. Board of Trustees of the Illinois and Michigan Canal, 19 Ill., 324, 325, 326, 327; Rex vs. Jefferies, 1 Stra., 446; 1 Green, 91, 480, 482, 484, 485, 489, 500, &c. Purdy vs. The People, 4 Hill, 384, 386, 387, 390, 394; The Prince's Case, 8 Coke's Rep., 28; Rex vs. Robotham, 3 Burr., 1472; Cooley's Con. Law, 135; Smith's Com., 945, 949, 950, 951, 952; 1 Code, Art. 37, sec. 46.

6th. Because, if this Court should consider itself bound by the printed form of the law which never did pass the Legislature, rather than by the actual law as it really was adopted, then according to the proper construction of the powers of the corporation gathered from the printed law in connection with the other legislation on the subject, the appellants had the power to collect the assessment imposed by its ordinance upon the appellees, as their proportion of the special benefit conferred upon the property lying along North East Street, from the paving of that street. 6 Bac. Ab., 380-390; Dwarr. on Stat., 690, 691, 692, 693, 694, 695, 697, 698, 699, 700, 701, 704, 712, 718, 721, 726, 731, 763; Md. Dig., (Merrick & Miller,) 529, secs. 47, 48, page 532, sec. 105; Sedg. on Stat. & Con. Law, 230-241, 247, 250; Smith's Com., ch. XIV, page 751; Act of 1797, ch. 54; Act of 1818, ch. 194; 2 Code, Art. 2, sec. 43, Art. 4, sec. 837, et seq., Art. 11, sec. 118; Purdy vs. The People, 4 Hill, 402, 403; 1 Story's Com. on Con., 383; Warner vs. Beers, 23 Wend., 182, 183; Mayor, & c. vs. Moore and Johnson, 6 H. & J., 380, 381; Mayor, &c. vs. Harwood, 6 H. & J., 383, 389, &c. State, use of, &c. vs. Boyd, 2 G. & J., 374; Canal Company vs. Railroad Company, 4 G. & J., 6, 152, &c. Mayor, &c., of Baltimore, vs. Root, 8 Md., 96, 105; Mayor & City Council of Baltimore vs. Clunet, et al., 23 Md., 450, 467, 468; Mayor & City Council of Baltimore vs. Greenmount Cemetery Co., 7 Md., 517; Act of 1865, ch. 31, sec. 3.

William Harwood, for the appellees.

Section 43, Article 2, of the Public Local Laws, provides that the Mayor, Recorder and Aldermen of the city of Annapolis shall have power "to tax any particular part or district of the city for paving the streets, lanes and alleys therein," &c.

Section 1 of chapter 240, passed March 19th, 1867, expressly repeals the above section of the Code of Public Local Laws.

Section 41 of chapter 240 of the Act of 1867, provides that the Mayor, Recorder and Aldermen shall have power to levy and collect taxes, not exceeding one per centum on all the property of the citizens of said city. This is the only power to tax granted the corporation.

The appellees are charged with a special tax. A special tax is unconstitutional, as being in violation of the Bill of Rights.

The power to levy and collect what is called a paving tax, by assessment on the inhabitants of a particular district, deemed to be specially benefitted by the improvements, to pay for which the tax is levied, is granted to the corporation of the city of Baltimore by express legislative enactment. The constitutionality of the grant is sustained on the ground that the so-called tax is a just charge for benefits derived from the improvement, and that the assessment of damages and benefits of the improvement and of the taxes on account thereof is provided for so as to secure an impartial and just assessment, with provision also for affording the enjoyment of the right of trial by jury in some stage of the proceeding. The Court of Appeals has repeatedly decided that the power to tax particular districts for public improvements may constitutionally be exercised when thus guarded and restricted, if expressly granted, and not otherwise. Alexander and Wilson vs. The Mayor and City Council, 5 Gill, 383.

The Act of 1867, ch. 240, makes a distinction between the new streets and the old streets of the city. First, it confers power on the corporation to establish new streets, lanes and alleys, and to widen and extend, stop up or discontinue new streets, lanes and alleys, but not to widen the old streets. On the contrary, it expressly says nothing herein contained shall relate to or in any manner affect any streets, lanes or alleys which have been at any time heretofore opened and used as public highways, &c. It afterwards confers power to pass ordinances for paving and keeping in repair the streets, lanes and alleys in said city, and for extending and widening the same to any particular part or district of the city, for paving the streets, lanes and alleys therein, &c.

The clause, "and for extending and widening the same to any particular part or district of the city," as it stands in the law, is a clause closely connected with the preceding clause.

It confers power to pass ordinances "for extending and widening," but not the streets, lanes and alleys generally. This is not its meaning, for a previous provision says "nothing herein contained shall relate to or in any manner affect any streets, lanes or alleys which have been at any time heretofore opened and used as public highways." It cannot, then, apply to the parts of the streets which have been "heretofore opened and used as public highways."

MAULSBY J. delivered the opinion of the Court.

In this case an injunction was obtained by the appellees to restrain the appellants from selling, through their collector, the property of the appellees for payment of a proportion of "special tax," for paving two hundred and forty-five feet of North-East street, in the city of Annapolis. The power is claimed by the appellants under the Act of 1867, ch. 240. That Act, so far as pertains to this case, in the printed volume of Laws, is in the following words: "to impose and appropriate fines, penalties and forfeitures for the breach of their by-laws and ordinances and to levy and collect taxes, not exceeding one per centum, on all the property of the citizens of said city; to pass ordinances for the prevention and extinguishment of fires, for paving and keeping in repair the streets, lanes and alleys in said city, and for extending and widening the same to any particular part or district of the city, for paving the streets, lanes and alleys therein, or for sinking wells, making pumps, water-pipes, fountains, hydrants and water-plugs, which may appear for the benefit of each particular part or district." The Act, as printed, is correctly taken from the copy which was recorded in the office of the Court of...