Mayor of Baltimore v. Horn

26 Md. 194 | Md. | 1867

Weisel, J.,

delivered the opinion of this Court.

The record in this case shows that the case of Porter vs. The Mayor and City Council of Baltimore, 18 Md. Rep., 284, which involved the same question of right under the law of 1856, ch. 164, also disposed of that question in this case, and consequently the Court below, after that decision and in pursuance of it, on the 23d of May, 1862, perpetuated the injunction in this case. By that decision it was settled by this Court that the powers conferred by that Act were not complied with by the Mayor and City Council of Baltimore, and that the work done in grading North Avenue, and the assessment of thetax for its payment, were unauthorized, and that the payment of the tax could not be enforced by a sale of the property levied on for that purpose ; and also that the ordinance of the city which was afterwards, on the 9th of December, 1859, passed to confirm the grading of the avenue, was without authority of law, of no binding force, had not the effect of ratifying the acts of the City Commissioners or in any manner changing the rights of the parties litigant, pp. 300, 301.

In this dilemma the city authorities adopted measures for procuring further legislation on the subject, and at January session of 1864, the General Assembly passed two laws, one, ch. 188, empowering and directing the Mayor and City Council of Baltimore to pay the contractors for the work done and accepted by the city, and to borrow money for the purpose, and to levy a tax for its repayment. The other, ch. 344, after reciting the former laws and proceedings, authorized and empowered the said Mayor and City Council to collect from the several owners of the property fronting on both sides of North Avenue, the sums of money theretofore assessed on the property belonging to them, as ascertained by the warrant of the City Commissioner, dated November 18th 1857, with interest from said dates, with a provision by which the owners could settle within a specified time at a reduced rate, but failing so to do, were declared liable for the whole, and the amount was made a lien upon their property.

The city paid the contractors, and after the time limited in the last named Act for reduced settlements with the owners, the collector of the city, Augustus M. Price, gave notice to the owners that unless the amounts so assessed were paid on or before the 15th of March, 1866, he would proceed to enforce payment by a sale of the lots. To stay this proceeding on the part of the city and its collector, as well as to procure an attachment for contempt for the violation of the injunction before granted and perpetuated, the appellees filed their petition, to which the Mayor and Council and collector filed their answers, relying for their justification, and the authority for their acts and pretensions in the premises, on the said Act of Assembly of 1864, chap. 344, which, they insisted, invested them with full, legal and effective powers to enforce the collection of said moneys.

At the hearing of the application of the petitioners for the protection claimed, the parties by agreement, all advantages in other respects being waived, submitted as the only question to be determined tbe constitutionality of the said Acts of Assembly of 1864. The Court below determined the Act of 1864, ch. 344, inoperative and void, and passed an order perpetually enjoining and restraining the defendants from collecting the assessments and making the threatened sale. From this order this appeal has been taken.

The only question therefore presented to this Court by the record, and the briefs, and arguments of counsel, is as to the constitutional validity of the Act of 1864, ch. 344, under which these renewed proceedings of the appellants were attempted.

The most prominent objection to this law, taken in the argument by the counsel of the appellees, was that the Legislature in passing it, exercised judicial power, which, by the Declaration of Rights, and numerous decisions in this State and other States of the Union, which separate the judicial from the legislative and executive powers of government, it could not assume and exercise. And this position, we think, is well taken. When this law was passed, the rights of the parties under the law of 1856, ch. 164, had been judicially determined by this Court. In the case of Porter vs. The Mayor & City Council, this Court had adjudged that the parties assessed in certain proceedings under that law, were not liable for the assessments, and had perpetually enjoined the city authorities from proceeding to collect them; and yet the law of 1864, ch. 344, passed after that decision, expressly authorised those authorities to proceed and collect them. It adjudged those parties to pay that which this Court, in a regular proceeding, determined they were not bound to pay. It, in effect, and that most plainly, reversed the judgment of this Court. That which this Court said was illegally done, or done without authority of law, or in contravention of law, and that the parties could not be assessed for, this Act of Assembly clearly declares shall be paid for by the parties, although they were relieved from that payment by the final determination of this Court. There certainly could not be a more plain assumption of judicial power by the Legislature, than was exercised by the enactment of the law of 1864, ch. 344, and as such, this law must be pronounced inoperative and void. It is unnecessary to repeat the reasons and grounds which have guided the Courts in adjudications of this kind. They have heretofore been ably set forth by this Court in the cases of Crane vs. Meyinnis, 1 G.& J., 476 ; Berrett vs. Oliver, 7 G. & J., 206 ; Miller vs. State, use of Fiery, 8 Gill, 148; Wright vs. Wright’s Lessee, 2 Md. Rep., 452. The case of Denny vs. Mattoon & others, 2 Allen (Mass. Rep.,) 377, is directly in point, as well as the case of Daniel vs. Correll, 19 Ills., 226.

( Decided January 16th, 1867.)

There is, also, great force in the other points presented by the appellees, especially the third, but we deem it unnecessary to pass upon them.

Regarding the Act of Assembly of 1864, ch. 344, void for the reasons and upon the authorities stated and referred to by us in this opinion, the decree of the Circuit Court of Baltimore city, perpetually enjoining and restraining the appellants from collecting or attempting to collect the assessments for grading North Avenue, mentioned in said Act of 1864, ch. 344, and as thoreby attempted to be authorised, must be affirmed, with costs to the appellees in both Courts.

Decree affirmed, with costs, dec.