Pressman v. D'Alesandro

• Decision Date: 14 October 1949
• Docket Number: 37.
• Citation: 69 A.2d 453,193 Md. 672
• Parties: PRESSMAN et al. v. D'ALESANDRO, Mayor, et al.
• Court: Maryland Court of Appeals

69 A.2d 453

193 Md. 672

PRESSMAN et al. v. D'ALESANDRO, Mayor, et al.

No. 37.

Court of Appeals of Maryland

October 14, 1949

Opinion Filed November 11, 1949.

Taxpayer's bill by Hyman A. Pressman and others against Thomas D'Alesandro, Jr., Mayor, and others, for adjudication that contract awarded by the board of estimates for reconstruction of existing stadium was illegal and void and to restrain proceeding with work under contract.

The Circuit Court No. 2 of Baltimore City, Joseph Sherbow, J sustained defendant's demurrer and entered a decree dismissing the bill and the plaintiffs appealed.

The Court of Appeals, Markell, J., held that the board of estimates had power to construct stadium without an additional ordinance determining whether to use loans for new construction or reconstruction and affirmed the decree.

Hyman A. Pressman, Baltimore, for appellants.

Thos N. Biddison, City Sol., Baltimore (Edwin Harlan, Deputy City Sol., John J. Ghingher, Jr., Asst. City Sol., and Eugene M Carozza, Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

PER CURIAM.

For reasons to be stated in an opinion to be filed hereafter, it is ordered by the Court of Appeals this 14th day of October 1949, that the decree herein be, and the same is hereby affirmed, with costs.

MARKELL Judge.

This is an appeal from a decree dismissing on demurrer a taxpayers' bill against the City of Baltimore and contractors for adjudication that a contract awarded by the Board of Estimates for reconstruction of the existing stadium is illegal and void and for injunction against proceeding with work under the contract. On October 14, 1949 the decree was affirmed, for reasons now to be stated.

By Chapter 97 of the Acts of 1947 the City was authorized to issue not exceeding $2,500,000 of certificates of indebtedness (if an ordinance providing for the issuance should be submitted to and approved by the voters as required by Art. 11, sec. 7 of the constitution) and to use the proceeds of sale for establishing and constructing a new stadium or for reconstructing and improving the existing stadium. Any ordinance submitted to the voters was to provide for expenditure of the proceeds of the loan in accordance with the provisions of the charter of Baltimore, and by the municipal agency designated in the Annual Ordinance of Estimates of the City. By Ordinance No. 828, approved April 2, 1947, the Commissioners of Finance were authorized to issue the $2,500,000 of certificates of indebtedness authorized by Chapter 97 of the Acts of 1947, for the same purposes, expressed in the same way, as those specified in the act, with the same provision for expenditure of the proceeds. The ordinance was not to become effective unless approved by the voters. It was so approved on May 6, 1947. The Ordinance of Estimates for 1948 contained, in a list of 'Estimates for New Improvements', an item 'Department of Public Works, General Stadium (to be taken from Stadium Serial 1953-1962 Loan) $2,500,000'. On March 10, 1949 the Board of Estimates advertised for bids, to be opened on March 30, 1949, on a partial reconstruction of the existing stadium. The Board rejected all bids and on April 9, 1949 readvertised for bids on changed terms as to time of performance and liquidated damages for delay. On April 20, 1949 the bids were opened and the next day a contract was awarded to the defendant contractors at a price higher than the bids rejected in March.

In the bill plaintiffs charge that the action of the Board of Estimates in rejecting the lower bids in March and accepting a higher bid in April, in disregard of a previous recommedation of the Director of Public Works, who had advised against reconstruction of the existing stadium, 'was arbitrary, incongruous and capricious conduct.' As Judge Sherbow says, there is no charge or allegation of fraud or bad faith on the part of the Board, or of facts amounting to such a charge. As to acceptance or rejection of bids, cf. Mayor, etc., of City of Baltimore v. Flack, 104 Md. 107, 123, 64 A. 702, Baltimore Charter, adopted at the November, 1946 election, to become effective May 20, 1947, sec. 38. In this court plaintiffs' charge of misconduct (as distinguished from alleged lack of power) in rejecting or accepting bids has apparently been abandoned.

Plaintiffs' only contention in this court is that the Board of Estimates had no power to award a stadium contract without a previous ordinance deciding whether to use the loan for (1) reconstruction of the existing stadium or (2) construction of a new stadium, at (a) the same or (b) a different location, i. e., adopting one of the alternatives permitted by the enabling act and ordinance. The question thus presented is, whether power to make the choice of alternatives has been conferred or reserved to be exercised only by ordinance, or to be otherwise exercised by some municipal agency.

Plaintiffs say the power to choose is a legislative power conferred upon the City Council as such and not delegable by it. They quote a dictum in Mayor, etc., of City of Baltimore v. Stewart, 92 Md. 535, 549-550, 48 A. 165, to the effect that a broad and unrestricted delegation of a power to decide whether a street shall be paved with asphalt or with brick would be unlawful. This dictum was explained and rejected as dictum in Mayor, etc., of City of Baltimore v. Gahan, 104 Md. 145, 152-153, 64 A. 716. If it were necessary for us to decide, we should be loath to hold that choice between the existing stadium and a new stadium at the same or a different location is a non-delegable legislative power, e. g., is more than 'the discretion necessarily belonging to a workman employed to do a work.' Mayor, etc., of Baltimore v. Scharf, 54 Md. 499, 522. The 'necessary discretion' of a workman is relative to the nature and magnitude of the work. More discretion in administrative boards and expert officials is necessary in a project of the size and technical complexity of constructing or reconstructing a 'modern stadium' than in laying a boardwalk in a Colonial village.

To call the question in the instant case a question of delegation of legislative power by the City Council is, however, to beg the question. The basic question now presented is not whether the City Council can delegate legislative power, but whether the Legislature has conferred, by the Baltimore charter or otherwise, power--of whatever nature, legislative or executive or both--to make the choice of alternatives. There can be no question as to the power of the Legislature to make such grants of powers of local government, whether to an existing municipal corporation or agency, a specially constituted body, or an existing executive or administrative body such as county commissioners. The constitutional requirement of separation of powers is not applicable to local government. Mayor, etc., of City of Baltimore v. Flack, 104 Md. 107, 119-123, 64 A. 702; Gordon v. Montgomery County, 164 Md. 210, 212-214 164 A. 676; Schneider v. Lansdale, Md., 61 A.2d 671, 675. Just how much power is granted by a particular statute is a question of statutory construction, Renshaw v. Grace, 155 Md. 294, 142 A. 99, not a constitutional question. In the past municipal charters, through imitation of state and federal constitutions, often made a separation of powers similar to the constitutional separation. Such charters gave rise to questions of statutory construction similar to constitutional questions of separation of powers. City of...