100 A. 298 | Md. | 1917
The Johns Hopkins Club Building Company is the owner of a lot of ground at the corner of Monument and Howard streets, the building on which is occupied and used as a club house by the Johns Hopkins Club.
It appears from the evidence that on the 21st of October, 1915, the following notice was left on the premises:
"City Engineer's Office, Baltimore.
Notice to Repair and Renew Footway.
Inspector's Report No. 14353. Oct. 13, 1915.
To Johns Hopkins University Club, S.E. Cor. Howard and Monuments Streets:
You are hereby notified to repave with cement footway and put all surface drains under same, in front and side of house or lot No. , S.E. Cor. Howard and
Monument Streets between and 227 W. Monument.
Remarks: Second and final notice.
The above work must be started not later than Oct. 18, 1915.
R.M. Cooksey, Highway Engineer."
Nothing was done by the Building Company by way of a compliance with this notice, and on December 18th another notice was given in these terms:
*285"City Engineer's Office, Baltimore.
Notice to Repair and Renew Footway.
Inspector's Report No. 25000. Dec. 16, 1915.
To Geo. Cator (Prest.), Continental Bldg.:
You are hereby notified to repave and cement footway and put all drains under same, in front and side of house or lot No. 227 W. Monument St., between
and
Remarks: S.E. Cor. Howard and Monument.
The above work must be started not later than Dec. 27, 1915.
R.M. Cooksey, City Engineer, Highway Engineer."
As in the previous instance, the officers of the Building Company did nothing in the way of compliance. Thereupon the City caused the pavement of the footway to be relaid in cement, and rendered a bill therefor, for the sum of $278.39. This bill was also certified to the City Collector of Taxes, and by virtue of Section 23 of Article 35* of the ordinances of the Mayor and City Council of Baltimore, became a lien upon the property, rendering it liable to be sold.
The bill in this case was filed to enjoin the collection of this tax, and the infliction of the penalties provided by the ordinance under which the municipal officials assumed to act.
The bill avers the footway in question to have been in good condition. This is denied by the answer, and much of the testimony taken related to this phase of the case. The evidence is flatly contradictory, but that question is not one to be determined by the courts in the absence of any allegation of fraud or bad faith. Where neither of these are alleged, the question is one of opinion merely.
It is not every difference of viewpoint between a citizen and a municipal corporation which is justifiable in the courts, and where the performance of his duty involves the exercise of discretion or judgment on the part of a municipal official, the courts will not review the manner of the exercise where neither fraud or bad faith is alleged.
Whether a particular footway is or is not out of repair or so worn as to require it to be relaid in part or in whole, is a matter too vast in detail to be passed on, in a city the size of Baltimore, by separate ordinance in each case. That is a ministerial function rather than a legislative one, and as such is proper to be committed to a municipal official, such as a city engineer or highway engineer, or an appropriate department.McQuillan on Municipal Corporations, sec. 1822; Barber AsphaltCo. v. Tomlinson, 141 Mo. App. 422. *286
The main ground relied on by the appellant is that the ordinance under which Mr. Cooksey, as highway engineer, assumed to act, is void, and, therefore, all proceedings under it are invalid, and ineffectual to place a lien upon the property of the appellant, or render it liable to the city for the cost of the work done.
In considering this phase of the case it is always to be borne in mind that the test is to be found not by what has been done under the ordinance, but what may, by its authority, be done.Ulman v. Baltimore,
The power of the Mayor and City Council of Baltimore over the streets and highways of the city is to be found in section 6 of the City Charter, in which it is provided that
"The Mayor and City Council of Baltimore shall have full power and authority * * * to pass all ordinances necessary for the grading, regulating, paving and repairing the footways in the streets, lanes and alleys of the city and impose a tax on any lot fronting on any paved street, lane or alley for the purpose of grading, regulating, paving or repairing footways in front thereof, or compel by fine or otherwise the owner or proprietor of any lot to pave or repair the footway in front thereof, agreeably to the ordinances to be passed by it."
The ordinances of the Mayor and City Council adopted in execution of the power thus conferred are grouped together in the City Code of 1906, in Article 35, and have been twice amended by ordinances, approved respectively (No. 102) May 10, 1912, and (No. 7) June 26, 1915. Sections 21 and 22 as they now stand, are as follows:
"21. The City Engineer shall cause notice of the order provided in section 28 hereof to be given to the proprietor or proprietors of the lot or lots in front of which a footway is required to be filled up, dug down, paved or repaved in manner following, that is to say: the said order, or a copy thereof, may be left at any house on such lot, or served personally on the proprietor *287 or proprietors, or his, her or their tenant, agent or guardian, or left at his, her or their residence, or a copy of such order may be published in one or more of the newspapers of the city and posted or set upon the premises, notice in any of which modes shall be deemed sufficient.
"22. If the proprietor or proprietors of any lot or lots fronting on any paved street, lane or alley, shall neglect or refuse to fill up, dig down, pave or repair the footways in front of such lot or lots, for the space of ten days after service of a printed or written order, or copy thereof, in manner as aforesaid, to be reckoned in case of publication in a newspaper from the date of first publication, then the City Engineer is authorized and directed to have the said footways filled up, dug down, paved or repaved with cement, stone or brick, in the discretion of the City Engineer, in a sufficient and substantial manner, or repaired in such manner as the City Engineer shall think proper; and a tax is hereby imposed upon each respective lot in front of which the footways shall have been so filled up, dug down, paved or repaved, equal to the expense of such filling up, digging down, paving or repairing (including therein the cost of advertising in cases where advertising is necessary), with an addition thereto of 3 per cent. for the cost of collecting."
The notice referred to in the sections quoted is the notice from the City Engineer or Highway Engineer to an owner to repair or repave the footways along the front or side of his property, but in neither of these, nor in any other section of the City Code, or ordinances applicable to the footways, is there any provision whatever for a notice to the owner of the property of the amount of the tax to be imposed upon him, or any provision for a hearing with regard thereto, or any appeal provided upon the assessment made or tax levied. In this respect these provisions differ materially from other similar city ordinances. *288
In the case of Gomeringer v. McAbee,
Under the very terms of sections 22 and 23, an amount which may or which may not represent the cost of doing the work is not merely imposed upon the owner, but made a lien upon his property as fully as such a lien could be created by a judgment of a Court of law, and yet this is accomplished with no provision for a hearing or any opportunity to the person whose property is thus to be affected to be heard in opposition to the charge or tax and lien to be created.
There is hardly a State in this country in which questions of similar character have not been raised. In Maryland it has frequently been considered by this Court, and there is not entire harmony of decision. In Baltimore v. Scharf,
Shortly after this came the case of Alberger v. Baltimore,
At this point a departure was taken in the view of this Court, when the case of Ulman v. Baltimore,
The Ulman Case was very similar in many of its features to the case presented by the Record now under consideration, and is controlling in this case. So apt is it, that the opinion of the late eminent Chief Judge of this Court might well be transcribed as the opinion of this Court, and special reference is made to that opinion without quotation, which could serve no purpose but to uselessly lengthen this opinion.
There have been cases decided since the Ulman Case, with regard to which it is proper to say a few words. In the case ofBaltimore v. Stewart,
The principle now being considered, again received the attention of this Court in the Monticello Co. v. Baltimore,
Kindred questions were presented in the case of Frostburg v.Wineland,
In the case of Baltimore v. Gahan,
It will have been observed that three different kinds of pavement were named as alternatives in the ordinance dealing with footways, and it was intimated rather than argued, that it was beyond the power of the Mayor and City Council by ordinance to delegate to the Commissioner of Highways, the choice as between different materials, and there is some of the language in the case of Baltimore v. Stewart, supra, which would seem sufficient warrant for the intimation; but when writing the opinion in the Gahan Case five years later than the StewartCase, JUDGE McSHERRY referred to the language used by him in the earlier case, as being "obiter" on the question of the selection of material, and in the Gahan Case distinctly sustained the committing to the Board of Awards a selection as between different materials after bids had been opened. *291
In the Owner's Realty Co. v. Baltimore,
In deciding the Ulman Case, supra, special reliance was placed upon the decision of the Supreme Court of the United States in Spencer v. Merchant,
It is not now intended to say that to enable a tax to be collected, provision must be made in every instance for a hearing in Court. There have been instances where boards or commissioners have been vested with quasi judicial powers, for a limited, clearly defined class of cases; but what is now decided is that unless there is a provision in the statute or ordinance which gives an opportunity to the owner of the property to be heard with regard to any tax or assessment levied upon his property, the same is invalid and not capable of enforcement.
The ordinances under which the Highway Engineer assumed to act in this case were without any such provision, and the decree of the Circuit Court No. 2 of Baltimore City, from which this appeal is taken, must be reversed and the case remanded, to the end that a final decree may be entered therein, in accordance with the views herein expressed.
Decree reversed, with costs to the appellant and causeremanded.