Washington Suburban Sanitary Comm'n v. Noel

Decision Date21 June 1928
Docket NumberNo. 37.,37.
PartiesWASHINGTON SUBURBAN SANITARY COMMISSION v. NOEL.
CourtMaryland Court of Appeals
142 A. 634

WASHINGTON SUBURBAN SANITARY COMMISSION
v.
NOEL.

No. 37.

Court of Appeals of Maryland.

June 21, 1928.


Dissenting Opinion, July 16, 1928.

Parke and Offutt, JJ., dissenting.

Appeal from Circuit Court, Montgomery County; Robert B. Peter, Judge.

Suit by Renee Noel against the Washington Suburban Sanitary Commission. Decree for complainant, and defendant appeals. Reversed, and bill dismissed.

Argued before BOND, C. J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.,

Charles W. Clagett and T. Howard Duckett, both of Washington, D. C., for appellant.

Wilson L. Townsend and F. Regis Noel, both of Washington, D. C, for appellee.

BOND, C. J. This appeal is from the overruling of a demurrer to a bill to restrain the collection of an increased special assessment or supplementary charge of benefits made under statutory authority, after a like charge, under an earlier statute, had been held invalid in the case of Sanitary Commission v. Scrivener, 153 Md. 68, 137 A. 492. Areas in Montgomery and Prince George's counties near the District of Columbia, to be supplied

142 A. 635

with new sewerage, water and drainage systems, have been combined and organized by act of assembly into a special district, and it has been provided that the cost of the improvements should be paid ultimately by levy upon the properties in the district in two ways, by a general ad valorem tax, and also by additional or special assessments per front foot upon properties abutting on streets, lanes, or alleys in which the pipes are laid, for the peculiar benefits accruing to those properties. Acts 1916, c. 313; Acts 1918, c. 122; 1920, c. 518; Acts 1924, c. 189; Dahler v. Washington Sub. San. Com'n, 133 Md. 644, 106 A. 10. And the commissioners appointed under the acts were to classify the properties in the district and fix the amount of the front-foot charge for those of each class. Construction was duly begun, and that in the street in front of the Scrivener property was finished, and a front-foot benefit charge was duly assessed and paid as long as the particular amount was accepted.

In all the last three acts of Legislature specified it was provided that "the classification of and benefit assessed against any property as made by the commission shall be final," subject only to revision at a hearing which was provided for. The acts of 1918 and 1920 also contained a provision that no benefit charge once levied should be increased; but that was omitted from the act of 1924. In 1925 the commission, without notice or opportunity for a hearing, increased the front-foot benefit charges upon all properties of the various classes, for the purpose of defraying the cost of reinforcement and augmentation of the systems required by an unanticipated growth and spread of population within the district. In the Scrivener Case, however, the lower court ordered the writ of mandamus to issue, directing the commission to rescind that levy, and the order was affirmed by this court, because, under all of the last three acts, notice and opportunity to be heard were required and an additional assessment was expressly prohibited. Since that decision, the General Assembly has passed a further curative act (1927, c. 506), providing that:

"All front foot benefit charges heretofore levied by said commission, whether by original levy or by increase, as the same stood charged by said commission against the respective properties on December the 31st, 1926, are hereby ratified and confirmed and determined to be a reasonable charge, and such front foot benefit charges as the same had been levied or increased by said commission are hereby declared to be a lien upon the properties against which the same were charged by said commission and enforceable as a lien under the provisions of the law relating thereto at the time the same were in default. The front foot benefit charge herein levied shall not be increased nor shall any additional front foot benefit charge be levied against the property upon which there had been Vevied a front foot benefit charge as of December 31, 1926."

The appellee, an owner of property situated similarly to that considered in the Scrivener Case, and similarly assessed, after alleging these facts, prays an injunction against the increased front-foot charge on the grounds, that (1) the act of 1927, in its attempt to overcome the deficiency because of which the assessment had been held invalid in the Scrivener Case, merely reversed that decision, and in doing it assumed a judicial function, within the ruling; in Baltimore v. Horn, 26 Md. 194; that (2) no benefit for which an additional charge could be levied would accrue to the complainant's property from the further construction and installation which is to be paid for, and a benefit charge would for that reason be invalid because depriving the complainant of her property without due process of law and without compensation; that (3) the act of 1927, properly construed, gives authority only for the original assessments previously recognized by this court as valid, and not to the increase; and that (4) the act of 1927 is void because it attempts to authorize an assessment in varying amounts for a benefit which it states is to be equal.

The decision in Baltimore v. Horn, supra, was that a legislative authorization of the city officials merely "to collect and receive" sums previously assessed under ordinances held invalid was a plain reversal of the judgment of the court, an attempted exercise of judicial power, and so beyond the powers of the General Assembly. A special statute had required that, before grading and paving North avenue in Baltimore city, the mayor and city council should determine whether the work was for the public good, and should then assess damages as well as benefits to abutting lots, but the city commissioner had pursued the ordinary course for grading and paving within the city limits, and there had been no previous determination by the mayor and city council that the work was for the public good, and no damages had been assessed. And a charge made for benefits was held to be in contravention of the statute. Then the Legislature ordered the sums so assessed to be collected and received, and this was held to be a usurpation of a judicial function, as stated. The point was not much argued in the opinion, but the citations in it show that the court regarded the act as the same in effect as acts interfering in particular judicial proceedings.

The case of Denny v. Mattoon, 2 Allen (Mass.) 361, 79 Am. Dec. 784, described as directly in point, was one in which the Legislature undertook to confirm proceedings in insolvency had before a supposed judge, who was in fact without title to the office, and which the Massachusetts Supreme Judicial Court had held invalid for that reason. And the Maryland cases cited were instances of similar interference. None of the cases cited involved an act to provide subsequent legislative

142 A. 636

ratification of the action of a public body dependent upon legislative authority and held invalid for want of it. And the great weight of authority, including that of the Massachusetts court, is to the effect that authority which the Legislature might have given in advance is equally effective when given subsequently, notwithstanding an adjudication meanwhile on the lack of the previous authority. See review of decisions on "Validity of curative statute impairing judgment or rendering it ineffective," in note, 25 A. L. R. 1136. Hodges v. Snyder, 261 U. S. 600, 43 S. Ct. 435, 67 L. Ed. 819. Putting aside, however, any question of the weight of authority on the principle elsewhere, and giving the case of Baltimore v. Horn the effect contended for by the appellee, we still have to consider the effect of the rules adopted in other Maryland decisions, that, after a first assessment has been found unauthorized, a new assessment might be authorized by the Legislature, and that the Legislature might fix the amount of the charge to be assessed, and that, therefore, an act, adopting the form of an original assessment, might validly provide for the levy of exactly the amount levied under the previous invalid proceeding. Mayor, etc., of Baltimore v. Ulman. 79 Md. 469, 30 A. 43; Leser v. Wagner, 120 Md. 671, 87 A. 1040; Dinneen v. Rider, 152 Md. 343, 136 A. 754.

The difference between such an act, in the form of an original assessment for the same amount, and an act like the present one ratifying and confirming the assessment of that amount as previously charged, accompanying it with a finding that it is reasonable, and that the property so assessed is benefited, seems to be little more than a difference in words. In each act the Legislature adopts as its own an amount previously fixed. We do not see any logical reason for holding that, in thus subsequently providing the legislative foundation previously found lacking, there is a reversal of the judgment of the court and an assumption of a judicial function. We therefore conclude that the ratification in the act of 1927 is not invalid, for this reason. See Havre de Grace Water Co. of Hartford County v. City of Havre de Grace, 150 Md. 241, 253, 132 A. 768.

As we view it, this present act makes, in substance and effect, a new, legislative assessment of the amounts previously charged on the complainant's property, and we have to deal with a case in which there has been a determination by the Legislature for itself of the district on which the cost of the improvements is to be assessed, and of the amount of front-foot benefit charges which are reasonable, and an actual legislative imposition of those charges. This analysis of the case furnishes, under the authorities, the answers to most of the objections made to the validity of the assessment, for it is well settled that a special benefit assessment by the Legislature directly, upon its finding that the land charged is benefited, is valid and...

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