Howard v. First Independent Church

| Md. | Jun 27, 1862

Bart on, J.,

delivered the opinion of this, court.

By the existing system, established by the Acts of Assembly' and the Ordinances of the city of Baltimore, regulating the grading and paving of streets, it is made a necessary preliminary to any action by the city authorities, that the owners of a majority of feet fronting on the street, (or the part of it proposed to be graded and paved,) shall unite in an application to the city commissioner to have the work done, and on such application the city commissioner is authorized to have the work done, although the other proprietors may not' assent. The effect of this system is, to enable individual owners to set on foot measures, which will result in imposing burdens upon the property of others against their will.

In the cases of Steuart, vs. M. & C. C. of Balt., 7 Md. Rep., 500, and Henderson, vs. M. & C. C. of Balt., 8 Md. Rep., 352, the constitutionality of these laws and ordinances was discussed; but it was held by the Court of Appeals that it was competent for the city of Baltimore, under the Acts of Assembly, to establish the system, and that no constitutional objection exists to the provisions of the Ordinance, No. 15, of 185(1, which Confer upon- the owners of a majority of front feet, the power of imposing a Burden,-or tax, for a.public improvement, on the property of other-owners against their will. It is manifest, however, that the intention of the law is, that the application shall be made- in good faith, that is, by persons who actually assume their share of the burden, and that any arrangement or combination among the parties applying, whereby a few individuals, desirous of causing the grading and paving to-be done, procure the signatures of others to the application, by paying them a consideration therefor, either directly or indirectly, is a¡ fraud on the-law,-and contrary to public policy; and we entertain very great doubt whether any action can be maintained on such a contract, as that sued on in this case.

In the argument of the cause, however, this point was not urged by the appellant, and does not appear to have been made at the trial below. Considering the agreement sued on (for the purposes of this case) as a valid contract, we are of opinion that,, according to its true intent qnd construction, no obligation of the defendant could arise under it, unless it appeared that the grading and paving of the avenue was actually done, in consequence of the application spoken of in the agreement. The evidence in the bills of exception shows that this was not the case. The application signed under the agreement, was dated in 1850, was laid before the commissioner without effect, no action was taken upon it by the commissioner, nor was the grading and paving done under it. After-wards, in 1853, another and distinct application was made by owners of a majority of front feet, under, and in consequence of which, the work was done;-this application was not signed by the plaintiff,-, nor has the agreement sued, on any reference to it whatever.

According to our construction of the agreement, the defendant’s-prayer- ought to have been granted, and upon the facts of the case conceded- in the argument, this would be fatal to any recovery by the plaintiff in the action, even if the contract were valid-.

(Decided June 27th, 1862.)

The court below erred in granting the plaintiff’s prayers, and in refusiug that of the defendant.

Judgment reversed without procedendo.