McKaig v. Mayor and City Council of Cumberland, 179

• Decision Date: 28 July 1955
• Docket Number: No. 179,179
• Citation: 208 Md. 95,116 A.2d 384
• Parties: W. Wallace McKAIG v. MAYOR AND CITY COUNCIL OF CUMBERLAND.
• Court: Maryland Court of Appeals

Page 95

208 Md. 95

116 A.2d 384

W. Wallace McKAIG v. MAYOR AND CITY COUNCIL OF CUMBERLAND.

No. 179.

Court of Appeals of Maryland.

July 28, 1955.

W. Earle Cobey, Cumberland, (Charles Z. Heskett, Cumberland, on the brief), for appellant.

William A. Gunther and Thomas B. Finan, Cumberland, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The appellant, as a taxpayer and property owner, brought a suit in equity on behalf of himself and of any other taxpayer or interested party against the City of Cumberland to have declared illegal and void the action of the City in approving an agreement between the City and the State Roads Commission of Maryland for the construction of a crosstown expressway or viaduct and other highways in the City and to enjoin the City from carrying out the agreement. The City demurred to the amended bill and the Circuit Court for Allegany County entered a final order sustaining the demurrer. The appeal is from that order.

The agreement which gives rise to the controversy (referred to below as the 'Agreement') was approved and its execution was authorized by the Mayor and City Council of Cumberland on August 9, 1954, and on the same day the appellant filed his original bill in this case to prevent its being carried into effect. Under the provisions of the Agreement the State Roads Commission (referred to below as the 'Commission') agrees to construct the crosstown expressway or viaduct and related highways, which together form one project, and the City undertakes certain obligations referred to below. The project is described as eligible for Federal Aid Urban Funds under the Federal Highway Acts of June 25, 1952, 66 Stat. 158, and May 6, 1954, 68 Stat. 70, and the use of such funds is contemplated. Under the agreement the City is to furnish a total of $490,000 to match Federal funds in like amount by allocating $70,000 a year for seven years from the City's share in the Gasoline Tax and Motor Vehicle Revenue Funds (as established under Code 1951, Articles 56 and 66 1/2 respectively) 'or from any other source that may be legally available to it.' These funds and the Federal funds above mentioned are to be used for construction of the viaduct and other highways, and the Commission is to assume full responsibility for the construction of the viaduct and highways. The bill states that the total cost of the project may exceed $12,000,000. The City's cash contribution of funds to be made available to the Commission or by way of 'matching funds' is, however, limited to the $490,000 above mentioned.

Other undertakings, the cost of which is to be assumed by the City under the Agreement, may be summarized as follows: the relocation of any public utilities (except such facilities as are customarily adjusted by their owners); the installation of necessary traffic lights; the adjustment of curb returns on one street; the adjustment of automatic traffic signals on another; the prohibition of parking on two streets; the closing of two others at their intersections with one of the approaches to the crosstown expressway; the installation and maintenance of necessary lighting on the expressway; the furnishing of 'any curbs, gutters or sidewalks which the City desires' and which are not necessary adjuncts to the construction of the expressway; maintenance of one street previously maintained by the Commission; and the maintenance of all intersecting streets and service roads constructed or reconstructed by the Commission as part of the project. The Commission is to undertake the maintenance of the expressway. If any City-owned land is included in the area to be traversed by the expressway, the City is to contribute such land without making any charge therefor. If it is feasible to permit parking under any part of the viaduct the City is to receive the revenues.

There are three questions of law at issue: (1) Has the appellant as a taxpayer and property owner, the right to maintain the suit; (2) Has the City the power to enter into the Agreement; and (3) If so, is the Agreement so vague and indefinite that its approval would constitute an unreasonable exercise of the powers of the City? We shall take these questions up in the order stated.

1. The Right of the Complainant to Maintain the Suit.

As already noted, the appellant brought this suit as a taxpayer and as an owner of property in the City of Cumberland on behalf of himself and of any other taxpayer or interested party who might wish to come in as a complainant and contribute to the costs of suit. No one else has elected to join him as a party complainant. The City challenges his right to maintain the suit.

We think it unnecessary to consider the possible rights of other, but unspecified, interested parties to join in the suit, or the right of the complainant to bring suit on behalf of such persons. We also think it unnecessary to determine whether the fact that the appellant owns property lying in the path of the proposed expressway gives him any special interest which would entitle him to maintain the suit on the ground that he may sue to prevent the improper condemnation of his property, even though he may be fully paid for his property. In this connection, we note that under the Agreement, the Commission, and not the City, undertakes to acquire the right of way. There is, of course, no direct challenge to the State's power of condemnation. If it is in some way open to attack in this case, it would seem that such an attack would have to be based upon the theory that the State's power to condemn would be lost because of its being exercised in furtherance of an agreement which the complainant says the other party, the City, had no right to make. Such a contention might carry us far afield; and because of our views expressed below with regard to the complainant's right to maintain his suit as a taxpayer, we see no need to go into this matter any further.

As the carefully considered opinion of the Circuit Court points out, a court of equity will restrain a municipal corporation or an administrative agency from entering into or performing an unlawful or ultra vires contract, when such action may injuriously affect the taxpayer's rights and property. Coddington v. Hilbig, 195 Md. 330, 73 A.2d 454; Rushe v. Town of Hyattsville, 116 Md. 122, 81 A. 278; Mayor and City Council of Baltimore v. Gill, 31 Md. 375; Mayor and City Council of Baltimore v. Keyser, 72 Md. 106, 19 A. 706; Ruark v. International Union of Operating Engineers, 157 Md. 576, 146 A. 797; Thom v. City of Baltimore, 154 Md. 273, 141 A. 125; Castle Farms Dairy Stores v. Lexington Market Authority, 193 Md. 472, 67 A.2d 490; Funk v. Mullan Contracting Co., 197 Md. 192, 78 A.2d 632, 79 A.2d 152.

The City contends that the complainant has not shown that he will suffer any pecuniary loss, and bases this contention largely on the ground that he has not expressly stated that the carrying out of the Agreement will increase his taxes. The bill does allege that the sum of $70,000 a year is to be diverted for seven years from moneys which would otherwise be available to the City for highway maintenance and like purposes and is to be used to help to pay the cost of construction of the expressway. It seems evident from the fact alone that the latest City budget ordinance (a copy of which was filed with the bill) provides more than $127,000 for streets and alleys that these funds will have to be replaced by moneys derived through increased taxes, of which the complainant will have to pay his share. Cases relied on by the City, such as Williams v. City of Baltimore, 128 Md. 140, 97 A. 140, and Phillips v. Ober, 197 Md. 167, 78 A.2d 630, where no pecuniary lose could be shown, are not applicable. Funk v. Mullan Contracting Co., supra, also cited by the City, upheld the right of taxpayers to sue because of increased costs to which they would be subjected and distinguished Phillips v. Ober on the ground that in the latter case 'it was not alleged that the taxpayers would be pecuniarily affected.' [197 Md. 192, 78 A.2d 635.] In the instant case we think the facts alleged are sufficient to indicate that taxpayers will be pecuniarily affected.

Funk v. Mullan Contracting Co., supra, is also direct authority for the rule that although the taxpayer may be wrong in his contention, he nevertheless has the right to invoke the aid of a court in order to make his contention.

The City's claim that the complainant's taxes would not be increased sufficiently to satisfy the twenty dollar jurisdictional requirement for maintaining a suit in equity was not pressed nor was it, nor could it have been, demonstrated to be arithmetically sound since the assessed value of only a part, but not of all, of the real estate in Cumberland owned by the plaintiff was shown. It is unnecessary to consider whether the interests of the taxpayers as a whole should be taken as the measure of the amount in controversy on the theory that this is a class suit.

2. Power of the City to Make the Agreement.

The appellant contends that because of certain restrictions and limitations placed upon the City by the terms of its Charter (Article 1A of the Public Local Laws of Maryland, as recodified in Everstine's 1950 Edition of the Charter and Ordinances of the City of Cumberland), particularly Sections 117, 118 and 148, as in force when the Agreement was approved, which are directed towards the City operating on a balanced budget and a pay-as-you-go basis and Section 81, subsections (c), (d) and (e) which limit the borrowing power of the City, the Agreement is ultra vires. Under these restrictions the City's borrowing power is limited to the following: (1) to borrow against anticipated revenue for the current year; (2) to borrow not more than $50,000 (and that only with the approval of the Circuit Court for Allegany County) to meet an emergency; and (3) to borrow through the...