Weber v. Probey

• Court: Maryland Supreme Court
• Writing for the Court: THOMAS, J.
• Citation: Weber v. Probey, 125 Md. 544, 94 A. 162 (Md. 1915)
• Decision Date: 08 April 1915
• Docket Number: 30.
• Parties: WEBER et al. v. PROBEY et al.

94 A. 162

125 Md. 544

WEBER et al. v. PROBEY et al.

No. 30.

Court of Appeals of Maryland

April 8, 1915

Appeal from Circuit Court, Prince George's County; Fillmore Beall, Judge.

"To be officially reported."

Bill by John E. Probey and others against Frederick E. Weber, as Mayor and Common Council of Mt. Rainier. From a decree for complainants, defendants appeal. Affirmed.

T Howard Duckett, of Washington, D. C., and R. Lee Van Horn, of Mt. Rainier (Marion Duckett, of Washington, D. C., on the brief), for appellants. F. Snowden Hill and James C. Rogers both of Washington, D. C., for appellees.

THOMAS J.

The bill in this case was filed by John E. Probey and others as landowners and taxpayers of the town of Mt. Rainier, in Prince George's county, in behalf of themselves and all other landowners and taxpayers of said town, against Frederick E. Weber and others, assuming to act as the mayor and common council of Mt. Rainier, to enjoin them from offering for sale or selling any bonds or exercising any of the powers conferred by Acts 1914, chapter 250, and from levying or collecting any tax on the real estate in the town for the payment of the principal of the bonds referred to in said act or the interest thereon.

The act, which is set out in the bill, declares in its title that it is "an act to authorize and empower the mayor and common council of the town of Mt. Rainier, a municipal corporation, in Prince George's county, to issue bonds and appropriate the proceeds arising from the sale thereof for establishing, constructing and maintaining a sewer and water system in the said town of Mt. Rainier; to submit the issue of said bonds to the qualified voters thereof for determination; to condemn such land as may be necessary for the building of said system; and to levy taxes on the assessable property of said town to redeem said bonds and to pay the interest thereon."

The first section authorizes and directs the mayor and common council to issue coupon bonds to an amount not exceeding the sum of $100,000, to be designated "Mt. Rainier Sewer and Water Bonds," for the purpose of establishing constructing, and maintaining a sewer and water system for the town, the bonds to be issued for sums not less than $500 or more than $1,000, and to bear interest at a rate not exceeding 6 per cent. per annum, payable semiannually. The second section provides that the bonds shall be numbered consecutively and be redeemable "in their proper order," as follows; $2,000 thereof three years after the date of issue, and $2,000 thereof annually thereafter, and that they shall be sold at public auction, "or by sealed bids," to the highest responsible bidder, after "due advertisement," at not less than par.

Section 3 directs that the amount realized from the sale of the bonds shall be applied solely to the construction and maintenance of the sewer and water system, and that the mayor and common council "shall have the power and authority to determine where and in what order, and under what street, roads and public highways, of the *** town the sewer mains and water mains shall be established, constructed or laid"; to determine the kind of system to be constructed; to make all contracts for the same and to pass all orders for the payment of the costs thereof and for land purchased or condemned.

Section 4 provides how contracts for the construction of the system may be awarded; section 5 authorizes the mayor and common council to purchase or condemn any land, private water and sewer mains, wells or streams, etc., that they may deem necessary for the system; and section 6 declares that the title to the system, when completed, shall be vested in the town, and that the mayor and common council shall have the power to fix schedules of rates for furnishing water and sewer facilities, and to pass all necessary ordinances, "with penalties for their violation, for the proper installations, security, protection and use of said sewer and water system, and to make such extensions of said sewer and water system, or either, as may from time to time appear necessary to them." Section 7 is as follows:

"That for the purpose of paying said bonds and the coupons thereon, issued under the provisions of this act, the said mayor and common council *** shall have authority, and are hereby authorized, empowered and directed so to do, to annually assess equally against the total number of front feet of all real estate in said town abutting on sewer and water mains, and to levy thereon as a special sewer and water tax, an amount sufficient to pay the said bonds and the coupons thereon, as said bonds and coupons may severally mature as hereinbefore provided, the owner or owners of said abutting real estate being assessed in proportion to the number of assessable front feet owned by him, her or them; provided, that when corner property under one ownership fronts or abuts on two streets or public highways containing sewer and water mains, and which said property requires but one service, the abutting front feet shall be computed for the purpose of the assessment and levy thereunder as one-half of the total number of front feet bordering on both streets. *** Said mayor and common council shall have full power to collect the special sewer and water tax herein provided in the same manner as the regular town taxes in said town *** are collected; and when said tax is collected it shall be applied as hereinbefore provided."

Section 8 provided for the appointment by the mayor, with the consent of the common council, of a "Sewer and Water Commission," whose duties are to "be advisory solely," and section 9 requires the question of issuing the bonds referred to to be submitted to the qualified voters of the town at a special election to be held on the third Tuesday of April, 1914, and, in case it is not then approved, to be again submitted at a special election to be held on the third Tuesday in April, 1915, and declares that all persons qualified to vote at the regular town election to be held in May, 1914, shall be qualified to vote at the special election in April, 1914, and that all persons qualified to vote at the regular town election to be held in May, 1915, shall be qualified to vote at the special election in April, 1915.

The bill alleges that the plaintiffs own real estate in the town of Mt. Rainier, and are all residents thereof except James C. Rogers, and that they will be required to pay such taxes as may be levied by the mayor and common council; that the defendants, acting under the supposed authority of said act, have advertised for sealed bids for the bonds therein mentioned to the amount of $100,000, and are incurring great expense in advertising and in the preparation of the bonds; that bids will be received by them on the 30th of June, 1914, and that they threaten to and will sell and issue the same as they find purchasers for them unless restrained by the court.

The bill then alleges that Acts 1914, chapter 250, is unconstitutional and void because it violates section 29 of article 3 of the Constitution of the state; the Declaration of Rights, and the fourteenth amendment of the Constitution of the United States. It further alleges that the special election held on the third Tuesday of April, 1914, in pursuance of said act was not and could not be lawfully held under the provisions of the charter of the town (Acts 1910 chapter 514, p. 998), as amended by Acts 1914, chapter 357, because no provision is made in either the original...