Town of Hyattsville v. Smith

• Decision Date: 01 March 1907
• Citation: 66 A. 44,105 Md. 318
• Parties: MAYOR, ETC., OF HYATTSVILLE et al. v. SMITH et al.
• Court: Maryland Court of Appeals

66 A. 44

105 Md. 318

MAYOR, ETC., OF HYATTSVILLE et al. v. SMITH et al.

Court of Appeals of Maryland

March 1, 1907

Appeal from Circuit Court, Prince George's County, in Equity Geo. C. Merrick, Judge.

Suit by Mary Smith and others against the mayor and common council of Hyattsville and others. From an order overruling a demurrer to the bill, defendants appeal. Reversed, and bill dismissed.

Argued before BOYD, PEARCE, BRISCOE, SCHMUCKER, BURKE, and ROGERS JJ.

Marion Duckett and Robert W. Wells, for appellants.

F Snowden Hill and James C. Rogers, for appellees.

BURKE J.

The appellees are the owners of four lots of ground numbered respectively, 11, 12, 13, and 14, in block B, in the town of Hyattsville, in Prince George's county, Md. Each of said lots has a frontage of 45 feet on the north side of Johnson avenue, between Maryland avenue and Wine avenue. Johnson avenue is one of the public streets of the town. Two of these lots are owned by Mary Smith, one by Rufus L. B. Clark, and one by Mary D. Sutton. The appellant is a municipal corporation, and in the year 1906 passed an ordinance providing for the laying of a new cement sidewalk upon the part of the north side of Johnson avenue which lies between Maryland avenue and Wine avenue, to replace a sidewalk then existing, but which was then in a bad condition. This old sidewalk had been constructed in 1895 by the commissioners of Hyattsville, a corporation of which the appellant is the successor. In the month of September, 1906, the appellant caused the old sidewalk to be torn up, and a new cement sidewalk to be laid in its place, and in October, 1906, assessed against each of the appellees' lots the sum of 60 1/2 cents per front foot as its proportion of the total cost of said new cement sidewalk, which assessment constituted under the terms of the act which will be hereafter referred to and considered a lien upon the lots, and collectible by the municipality. No request was made by either of the appellees to the appellant to lay the sidewalk, nor has either assumed or promised to pay the cost of its construction, or any part thereof. The total cost of laying the sidewalk was $604.55, and the appellant has assessed against the lots on the north side of Johnson avenue fronting the sidewalk the cost of its construction in the proportion that their respective number of front feet bears to the total cost, and by this method or rule of assessment the sum payable by Mary Smith is $54.45; by Rufus L. B. Clark, $27.22 1/2; and by Mary D. Sutton, $27.22 1/2. The mayor and common council of Hyattsville claims the right to make these assessments, and to collect the same from the appellees under the authority of chapter 113, p. 142, of the Acts of Assembly of 1906. The bill in this case was filed to restrain the collection of each of said assessments, and for a decree declaring the assessments to be null and void.

The grounds upon which this relief was asked are stated in the 6th, 7th, and 8th paragraphs of the bill, and are as follows: "(6) That said mayor and common council of Hyattsville has not authority to assess against each of your complainants' said lot or lots a proportion of the total cost of said new cement sidewalk based on the front feet of his or her said lot or lots, or collect the same of your complainants as aforesaid. (7) That said mayor and common council of Hyattsville had no authority under section 22, c. 113, p. 143, Acts 1906, or any other law, either to repave said Johnson avenue as aforesaid, or collect the whole cost of said repaving from the owners of lots fronting the same, and on the north side of said Johnson avenue, or assess the same against their said lots as aforesaid, and said collection from each of the plaintiffs therein and assessments against his or her said lot or lots as aforesaid is illegal and void. (8) That said section 22, c. 113, p. 143, Acts 1906, is unconstitutional and void, being in conflict with the Bill of Rights and Constitution of the state of Maryland, especially with sections 15 and 23 of said Bill of Rights, and each of said assessments is illegal and void." A preliminary injunction was issued as prayed. The appellant demurred to the whole bill, which demurrer the court overruled, and required the appellant to answer the bill within 10 days. From the order of the court overruling the demurrer, the mayor and common council of Hyattsville has brought this appeal.

A motion has been made to dismiss the appeal, because no appeal is allowed from an order overruling a demurrer to the entire bill of complaint. That such an order is in the nature of a final decree from which a party has a right of appeal has been settled by the cases of Chappell v. Funk, 57 Md. 465, and Hecht v. Colquhoun, 57 Md. 563. The appellees rely in support of their motion upon the cases of Cunningham v. Board of School Commissioners, 93 Md. 738, 48 A. 1046; State v. Tag, 100 Md. 588, 60 A. 465; and McNiece v. Eliason, 78 Md. 175, 27 A. 940. Neither of these cases support their motion, nor modify or change in any manner the ruling on this point in the Cases of Chappell and Hecht, supra. In the Cunningham Case the appeal was from the opinion of the court. In Tag's Case a demurrer to an indictment had been sustained, but there was no judgment on the demurrer in favor of the defendant; and in the McNiece Case the court held that an appeal would lie to this court from an order sustaining the demurrer to the entire bill. The motion to dismiss will, therefore, be overruled.

2. We will now consider the main and important question presented by the appeal which is this: Is the twenty-second section of chapter 113, p. 143, of the Acts of 1906, unconstitutional as alleged by the appellees? That section is in the following words: "Section 22: And be it enacted that the mayor and common council shall cause to be constructed, as they may determine necessary for the public benefit, sidewalks in any of the streets of said town not less than four feet in width of brick, cement, concrete, or other material, and shall assess upon the land abutting said sidewalks the cost thereof, which assessment shall be a lien upon such abutting property, to be assessed at such time as the mayor and common council may determine, and to be recovered from the owners of such abutting property by said mayor and common council as taxes due the corporation of Hyattsville are collected. The mayor and common council shall have power to make all necessary regulations as to the notice of such assessments to property owners." The bill is silent upon the question of notice, and in the absence of all allegations upon that subject, upon the presumption as to the regularity and validity of all governmental acts, it must be assumed that proper notice had been given. Judge Cooley, in the case of People v. Salem, 20 Mich. 473, 4 Am. Rep. 400, said that in order to render valid a burden imposed by the Legislature under the exercise of the power of taxation, the following requisites must appear: (1) It must be imposed for a public and not for a mere private purpose. Taxation is a mode of raising revenue for public purposes only, and, as is said in some of the cases, when it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder. (2) The tax must be laid according to some rule of apportionment, not arbitrarily or by caprice, but so that the burden may be made to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest. A state burden is not to be imposed upon any territory smaller than the whole state, nor is the county burden upon any territory smaller or greater than the county. Equality in the imposition of the burden is of the very essence of the power...