Mayor of Baltimore v. Hanson

61 Md. 462 | Md. | 1884

Alvey, C. J.,

delivered the opinion of the Court.

The Ordinance No. 119 of 1874, which provided for the regrading, repaving and recurbing of Liberty street in the City of Baltimore, between Lexington and Camden streets, is conceded to be free from valid objection, if it stood alone. Apart from the resolution of the City Council subsequently passed, in reference to the progress of the work, there could, according to the decisions of this Court, be no valid objection to the local assessments made upon the property along the line of the improvement. Upon the form and terms of the ordinance the legal presumption would be that the improvement was intended for local benefit and advantage, as well as for the general public convenience ; hence the property along the line of the improvement would be liable to assessment. Burns’ Case, 48 Md., 198. But it is alleged and insisted, that by the resolution of the City Council, No. 285 of 1875, passed a year after the ordinance, and after the work had in fact been commenced, but which had been suspended in consequence of some legal question arising as to the assessments authorized, a declaration was made as to the nature and objects of the ordinance which destroyed its validity, so far as it authorized assessments to be made upon adjoining property. We do not, however, agree in so construing the resolution in its bearing upon the ordinance.

The resolution is preceded by a long preamble setting forth the facts of the case, and the reason why the work had been suspended, and then it is resolved, while commending the course of the City Commissioner, that “ public necessity requires that these streets should be placed in a proper condition for business and for purposes of drainage, •and that further procrastination of the work of improvement will operate to the material injury of business on the line of the street proposed to be improved, and interfere materially with the public convenience.'’ The street proposed to be improved is one of the established public thoroughfares of the city, and, of course, the public have an interest, and have a matter of convenience, involved in the condition of the street. Unless there be a public benefit in the use of the street, the city clearly would have no authority to improve it, and assess the cost, or any part of the cost, upon the property of the citizens along the line of such street. As is well and clearly said by Judge Dillon, (2 Dill. Mun. Corp., sec. 752, note,) “In order to justify an assessment, the improvement must be for a public purpose, since the public have no right to tax a citizen to make improvements for his own benefit solely. All streets which are opened for public use are public benefits, and it is upon that ground only that the State can take private property for streets; but the cost of opening and improving them is assessed on adjoining owners on the ground of private benefit.” And this is the precise ground upon which the power of assessment is placed by this Court, in Alexander & Wilson vs. City of Baltimore, 5 Gill, 383.

If the ordinance providing for the opening or improving a street declares in terms that the improvement is for the general public benefit or convenience, without anything more, the presumption will be made that the ordinance was enacted with an exclusive reference to the general public convenience, and with no reference whatever to local benefits to owners of adjoining property; and therefore the cost of the improvement should be borne exclusively from the public treasury. This is the principle of the case of Burns in 48 Md., 198. But if the ordinance is silent upon the subject of the interests or benefits to be subserved, the presumption is indulged that it contemplated local benefits as well as the general public convenience. And that is the form of the ordinance in this, case. The subsequent resolution was not intended to characterize the ordinance, but simply to declare a reason for proceeding with the work, the reason being that there-was a public convenience involved in the condition of the street. The resolution fully recognized the local interests,, when it declared that the delay “ operated to the material injury of business on the line of the street proposed to be improved.” It is in the facility offered to business along-the line of the improvement that local benefits largely consist.

(Decided 26th March, 1884.)

We discover nothing in the bill to entitle the complainants to an injunction, and we think the demurrer interposed by the city should have been sustained, and the bill dismissed. We shall therefore reverse the orderapjjealed from, and dismiss the bill with costs.

Order reversed, and bill dismissed.