Mayor of Baltimore v. Johns Hopkins Hospital

56 Md. 1 | Md. | 1881

Lead Opinion

Miller, J.,

delivered the opinion of the Court.

Much importance has very properly been attributed to the questions presented by this appeal, and they have been twice argued. They not only involve important legal principles, but property owners in the City of Baltimore, and the city itself, are deeply interested in their solution; for it is conceded that the collection or non-collection of taxes to a very large amount, levied under Ordinances of the same character and for like improvements already made, depends upon the decision of this case.

The appeal is from a pro forma decree of the Circuit Court, annulling the assessments upon abutting property, for a portion of the cost of repaving part of Pratt street, and perpetually enjoining the collection of the same. The main questions are the same that were discussed in the case of The Mayor and C. C. of Balt. vs. Scharf, et al., 54 Md., 499. After the opinion in that case, declaring the Ordinance and the assessments under it to be void, was filed, a motion for a re-hearing was rpade at the same term and granted. The argument in this case has therefore been received and taken as a re-argument of that. Upon this argument, and further consideration of the subject, a majority of the Judges participating in this decision, have reached a different conclusion from that expressed in the former opinion, and we shall now proceed to state the grounds upon which we hold the assessments to be valid.

By Ordinance Ho. 68, approved June 26th, 1878, (under which the assessments in the present case were made,) entitled “An Ordinance to provide for the repaving of Pratt street, between Jones’ Palls and Howard street,” it was enacted and ordained by the Mayor and City Council of Baltimore, “ that the City Commissioner he and he is hereby authorized and directed to have Pratt street, between Jones’ Palls and Howard street repaved, in pursuance of the Act of the General Assembly of Maryland, chapter 218, of April, 1874, and according to the provisions of Ordinance Ho. 44, of the Mayor and ’City Council of Baltimore, approved the 4th of June, 1874, providing for the grading, gravelling, shelling, curbing and paving of the streets, lanes and alleys of the ’City of Baltimore, so far as the same may be applicable; said repaving to be done with Camp’s process of Belgian block pavement; the expense thereof to be paid in the following manner, that is to say, one-third by the Mayor and City Council of Baltimore, and two-thirds by the oioners of property binding on said street; and the same shall be laid with Maryland Granite, provided it can be purchased at as low a price as that furnished by parties outside of' the State; and provided the cost of said pavement shall not exceed $2.85 per square yard; the city’s portion of the expense to be provided for in the levy of 1879.”

This special Ordinance, and the general Ordinance, No. 44 of 1874, therein referred to, were hoth passed in pursuance of the powers granted by the Act of 1874, ch. 218. That Act made several important changes in the system of laws which had previously existed upon this subject. It gave the Mayor and City Council power, in the first place, to provide by “ general Ordinance,” for paving or repaving any street, or any part thereof, “ without the passage of a special Ordinance in the particular case,” whenever the owners of a majority of front feet of property binding on such street, or part thereof, shall apply for the same, upon terms and conditions to be prescribed in such general Ordinance, and for the assessment in any such case, of the cost of such work, in whole or in part, pro rata upon all the property binding upon such street or part thereof, and for the collection of such assessments as other city taxes are collected ; and, in the second place, it gave them in like terms full power and authority, without any application of owners, to provide by special Ordinance for paving or repaving any street, or part of a street, and for assessing the cost of the work, in whole or in part, pro rata upon the property binding on such street or part thereof, and for collecting such assessments as other city taxes are collected. The construction of this, statute was determined, and its validity sustained, by the decision of this Court in Burns’ Case, 48 Md., 198. It was there decided it was not the purpose of this law to grant power to pass special Ordinances, making improvements of this character for the public convenience generally, without any motive or purpose of special benefit to property in the immediate locality, and then to assess the cost of the work upon the owners of such property; and as the Ordinance in that case, showed by its preamble, that in the judgment of the Mayor and City Council, the improvement was required by, and that their motive in passing it, was to promote, “ Hie public convenience,” it was declared void, so far as it attempted to enforce special assessments upon the owners of adjacent property. But it was also there held, in accordance with previous adjudications of this Court, that if no such expression had been found on the face of the Ordinance, the presumption would have been that in the judgment of those who passed it, the paving directed to be done, would be for the benefit of the particular district, and in that event this presumption would have been conclusive, and the Ordinance free from objection on that ground. “ The legality,” say the Court in Hughes’ Case, 1 G. & J., 492, “of levying the tax, does not depend upon whether the paving does or does not in fact benefit the particular district that is taxed, but upon the object, the motive of the corporation in causing the paving to be done. And in .an Ordinance providing for such paving, and the imposition of such a special tax, it is not necessary that it should be expressly stated to be for the benefit of the particular district; but if nothing appears to the contrary, such an exercise of the special taxing power, will be taken to have been in pursuance of the authority given by the charter. It will be presumed that the corporation did not exceed its powers, but imposed the tax for the purpose only for which the charter authorizes it to be imposed, and that the paving appeared to the City Council to be for the benefit of the particular district.” To the same effect are the decisions in Moore & Johnson’s Case, 6 H. & J., 375, and Howard’s tJase, Ibid, 383, where the power of taxing particular districts for local benefits was first considered hy the ■Courts of Maryland. It follows from these decisions, that the question whether the improvement will benefit the particular district, is left to the judgment of the Mayor and City Council, and their determination in the premises is final and conclusive. The law has provided ■ no appeal from that determination, and the Courts have no power to review it at the instance of property owners who are specially taxed. Whether some mode of review ought to he provided, is a matter for the Legislature alone to consider. The Courts, as the law now stands, can determine simply the naked question of power, and as to this, the validity of special assessments, founded upon the theory of special benefits, has been so often and uniformly ■sustained hy the Courts of this and other States, as to be no longer an open question. There is nothing upon the face of the Ordinance now before us, indicating that those who passed it, judged that the improvement was for the public convenience exclusively, and not for the benefit of the particular district. It provides for special assessments, and the presumption is, that they determined that those who were specially assessed would he specially benefited. Its validity therefore cannot be assailed in the Courts, upon the ground that the improvement was in fact for the benefit of the public at large, and conferred no special benefit upon the owners of adjacent property. Such is undoubtedly the general rule, hut some Courts have held, and perhaps justly, that a local assessment may so far transcend the limits of equality and reason, that its execution would cease to be a tax, or contribution to a common burden, and become extortion and confiscation. Gooley on Taxation, 428, note 3. We do not mean to say a case may not ^.rise of such abuse of this power hy the legislative body, as to make it “ the duty of the Court to protect the citizen from robbery under color of a better name,” but it must be a clear case of such abuse, to justify the interference of the Court, and plainly no such case has been made by the present complainants in their bill, nor established by the proof in this record.

But it is said no notice was given to the property owners of the purpose to enact this Ordinance, nor is any provision made by the Ordinance itself, giving notice of the proceedings under it, and affording those to be affected by it, an opportunity of being heard before the charges are fully established against them; and this, it is argued, is taking their property without due process of law, and in violation of their constitutional rights. It is conceded the Act of Assembly requires no such notice, and, in our opinion, this objection is founded upon a misapprehension of the nature of the power here granted and exercised. This is not an Ordinance to open and condemn a street or highway, where private property is taken for public use, by the right of eminent domain, but an Ordinance imposing a’tax or assessment for the repaving of' a street already opened and condemned. That the imposition of such a tax or assessment, upon the owners of adjacent property, is an exercise of the taxing power, and not of the right of eminent domain, has been so frequently decided, not only by this Court, but by the Courts of other States, that the controversy which may once have existed upon the subject, must be regarded as closed. Greenmount Cemetery Case, 7 Md., 517; Cooley on Taxation, 430; 2 Dillon on Mun. Corp., sec. 596. What is said by Judge Cooley on pages 265 and 266, of his valuable book on Taxation, as to the importance to persons assessed, that they should have some opportunity to be heard before the charge is fully established against them, has-reference to general assessment laws, under which the property of the citizens of the State is assessed or valued for the purpose, and as the basis, of taxation generally. In all • the States, and certainly in Maryland, provision has always been made in such laws, for a hearing and for a review of the action of the assessors or valuers, before a hoard of review and on appeal to the Courts. But when the valuation has been thus settled, the rate and amount to he raised by taxation, as well as the necessity and propriety of the particular tax, are matters left entirely to the discretion of the Legislature. To hold that notice to the tax payers, is essential to the validity of a law imposing a tax upon the basis of such valuation, ■and that the Courts can intervene and set it aside, and ■stay the collection of the tax, because no such notice was given or provided, would he as much an anomaly in jurisprudence as in legislation. In this part of his work, the learned author was not considering special assessments, which are hut taxes; for local improvements, and the ob■servations there made, do not, in our judgment, apply to such cases. A careful examination of the case of Stuart vs. Palmer, 14 N. Y., 183, and the statutes under which that case arose, has convinced us that it is materially different from this. Much of the opinion in that case •applies with great force to statutes and proceedings under which property is taken by the right of eminent domain, hut we cannot accept what is there said as conclusive of the question of notice now before us in this case. Much more to the point, is the decision of the same Court in the Matter of Trustees of Pub. School, 31 N. Y., 514, in which the opinion was delivered by Chief Justice Denio, where it was held, that raising money for a local improvement, is an exercise of • the taxing power inherent in the Legislature ; that this power of taxation implies a power to •apportion the tax territorially, as the Legislature may see fit, and that the constitutional inhibition against depriving a person of his property without due process of law, •and forbidding private property from being taken for public use, without just compensation, has no application to the case; that in executing the taxing power in such cases, the Legislature provides such agencies and safeguards against surprise, mistake or injustice, as is thought fit, and while it is manifestly proper that the tax payers should have notice of the imposition proposed to he laid upon them, and an opportunity for making suggestions and explanations to the proper administrative hoard or officer, yet, as there is no constitutional provision bearing on the subject, it is for the Legislature to determine and prescribe in every case what shall be sufficient. We hold it then to be clear, both upon reason and authority, that provisions for notice, or giving the right of hearing, or •an appeal to the Courts and a jury trial, however wise and proper they may be in point of policy, are not essential to a valid exercise of this branch of the taxing power. In the present case, no such provisions were required by the Act of Assembly, nor embodied in the Ordinance, and these complainants were left to their right to petition the Mayor and City Council against its passage, if they ■deemed it prejudicial to their interests, and to such hearing before the committee having the matter in charge, as is usually accorded by legislative bodies. If they failed to avail themselves of this privilege, or were unsuccessful in their efforts, the Courts cannot interfere, for the power to determine when a special assessment shall he made, on what basis it shall he apportioned, over what district it shall extend, and whether the particular improvement will confer a benefit upon property in the immediate locality beyond that which will accrue therefrom to property more remote, or the public generally, is a power confided to the legislative department, to be exercised, subject to such provisions, and under such restrictions only as the law makers may see fit, in each case, to prescribe. With the wisdom or unwisdom of such assessments when ordered in cases in which they are admissible •at all, the Courts have no concern, unless (according to some authorities,) there is plainly and manifestly such an abuse of power, as takes the case beyond the just limits of legislative discretion. Cooley on Taxation, 429. The record before us discloses no such abuse of power, and this objection to the validity of the Ordinance cannot prevail.

But in executing the Ordinance the City Commissioner proceeded to assess the two-thirds of the cost upon the adjacent property according to frontage, and it is contended that this front foot rule was repealed by the Act of 1874, is not contained in, or re-enacted by the Ordinance, and has now no legal existence; and the assessments according to that rule, were, therefore, made without lawful authority. It is conceded, on all sides, to he the province of the Legislature to prescribe, in such cases, how the apportionment shall be ■ made, and this may he either by the front foot, by the area of the fronting lots, or by their value, including or excluding the buildings upon them. Occasional hardships may result from the adoption of either mode, hut the authorities are united in the conclusion that either may lawfully be made the basis of' apportionment. In street improvements, especially such as paving and repaving, the frontage rule has been very generally adopted as the most practicable and reasonable measure of probable benefits, and, certainly it cannot with propriety he denounced as inherently unreasonable or unjust. In speaking of this rule, Judge Cooley observes, that “ such a measure of apportionment seems at first blush to he perfectly arbitrary, and likely to operate in some cases with great injustice, hut it cannot be denied that in the case of some improvements, frontage is a very reasonable measure of benefits, much more just than value would be, and perhaps approaching equality, as nearly as any estimate of benefits made by the judgment of men.” Cooley on Taxation, 451. In Baltimore the rule has prevailed, been acted upon, and acquiesced in without ques-lion or complaint, from the foundation of the city to the present time, but not always under an express provision of an Act of the G-eneral Assembly to that effect. Prior to the incorporation of the city, taxes were imposed upon the inhabitants of the town, directly by the Legislature, ■and by the Act of 1782, ch. 17, among other taxes for paving, cleansing, and keeping the streets in repair, a tax •of twelve shillings and six pence, was levied “ on every front foot of improved and unimproved lots, in those parts •of the streets fixed on to be paved, or that may have been -already paved by the Special Commissioners.” Afterwards, upon representation by the Commissioners that this tax ■operated unequally and oppressively, because one and the same rate was fixed “for streets of different widths,” the 0 Legislature, by the Act of 1791, ch. 59, changed it as ■desired, and prescribed different rates per front foot, according to the width of the street. "When the city was incorporated by the Act of 1796, ch. 68, the system of direct taxation by the Legislature ceased, and power was ■conferred upon the corporation et to lay and collect taxes not exceeding two dollars in the hundred pounds in any one year,” and in the following year, by the Act of 1797, ch. 54, “full power and authority,” was given to the corporation “ to enact and pass all Ordinances necessary for paving and keeping in repair the streets, lanes and alleys of. the city, and to tax any particular part or district of the city for paving the streets, lanes and alleys therein, which may appear for the benefit of such particular part •or district.” Neither this, nor the preceding Act, made any reference to the front foot rule, but under the broad power contained in the last Act, numerous paving Ordinances were passed, and in all cases, so far as we are ■ aware, this rule of assessment was adopted, and without dissent on the part of the property owners so taxed. The Act of 1817, ch. 148, sec. 18, has been referred to by the ■appellees’ counsel, as prescribing the rule, but that section simply provides tliat no nnpaved street shall he paved “ without the assent in writing of the proprietors, of a majority of the ground binding and fronting on such street or the part thereof to he paved,” and if this language is sufficient to prescribe the front foot rule, then similar terms in the Act of 1874 must have the same effect. The. Act of 1832, ch. 57, does not, in our judgment, apply to public streets. The Act of 1833, ch. 40, clearly prescribes the rule, hut it deals solely with repaving. All antecedent laws on the subject were repealed by the adoption of the Local Code in 1860, and in that we-find no provision applying the rule to cases of original paving. Sections 845 and 847 of Article 4 are derived from the Act of 1833, and refer only to repaving. After-the Code, the Act of 1870, ch. 282, (which was repealed by the Act of 1874,) simply declared that the owners of property on the street shall he ' assessed “ their proportional part of the expenses ” for the paving or repaving. In short we have found no statute from the incorporation of the city in 1796 to the present, in which with reference-to the paving of unpaved public streets, this rule has been prescribed in express terms, and if its adoption could he-made out by implication, the language of the Act of 1874 is quite as strong for that purpose, as that used in any previous law. It is, however, undeniably true that during this long period this rule has been constantly recognized in paving Ordinances, adopted in practice, accepted by property owners and tax payers without demur, and has stood without objection until the present cases arose. It is also equally true that during the same period many paving tax cases have been brought to this Court and argued by eminent counsel, in which the validity of the taxes has been vigorously assailed on various grounds,, and yet this objection is now raised for the first time. These facts may not suffice to establish the legal existence-of the rule, hut they certainly afford material aid in the-construction of the Ordinance now before ’US, which will be presently considered.

The argument on the part of the appellees, is to the effect that the Act of 1814, has expressly repealed all previous legislation on the subject, including those sections of the Local Code in which the front foot rule is prescribed, and has substituted its own provisions as the sole and only law relative to the paving and repaving of streets, and as this Act is silent as to the rule of assessment in such cases, the result is, either that no rule on the subject exists, and the city is left without a paving law which can be executed, or, as the only alternative, the assessments must be made upon the basis of the valuation of property for the purpose of ordinary taxation, fixed and ascertained under and by virtue of the general revenue and assessment laws of the State. But conceding the Act fails to prescribe, in express terms, any rule of assessment, it nevertheless vests the Mayor and City Council with “ full power and authority to provide by Ordinance for assessing the cost of any such work, in whole or in part, pro rata upon the property binding on such street or part thereof." Under this broad and general power, it is very clear, we think, that an Ordinance may be passed adopting the front foot rule as the mode of apportionment, and if so adopted that the rule will be lawfully established. Howard’s Case, 6 H. & J., 389. And such, in our opinion, upon fair and just construction, is the effect of the special Ordinance in question, and the provisions of the general Ordinance which it refers to and adopts. The special Ordinance' not only declares that two-thirds of the cost of the work shall be paid “by the owners of property binding on said street,” but it adopts all the provisions of general Ordinance ETo. 44, “ so far as the same may be applicable ” to the repaving which it directs to be done. Among the provisions of the latter Ordinance, which are unquestionbly so applicable, are sections eight and seventeen. By section eight, which relates to paving, the City Commissioner is required to impose a tax upon the owner or owners of property binding upon the street, or part'thereof to be paved, equal in amount to the whole cost of the work, and he is further directed “to assess and lay the tax upon the owner or owners of property on each side of said street, of one-half of so much of said street as may he in front of such property,” and by section seventeen, which relates to repaving, it is provided that, the “ same modes of procedure shall be adopted,” except that two-thirds only of the cost “shall be paid by the owners of property binding ” upon the street, or part thereof to be repaved; By other provisions of both Ordinances the work was required to be done under contract, to be given to the lowest bidder, and at a cost not exceeding a certain sum per square yard, which of necessity made the cost of each and every square yard of pavement or repavement uniform. After the contract was entered into, the ascertainment of the entire cost was merely a matter of measurement and calculation. Now, in view of this consideration, the only reading and interpretation we can give to this eighth section, is that it requires each frontage owner to pay one-half the cost, so ascertained, of paving so much of the street as lies in front of his property, and this is nothing more nor less than the front foot or frontage rule. Eor these reasons, we hold that the frontage rule has a legal existence, and it is, therefore, no objection to the validity of these assessments that they were made according, to that rule.

Some minor questions have been discussed which do not require an extended notice. We think it plain the Ordinance authorized assessments only on property fronting on that part of the street which was directed to be repaved, and not on property throughout the entire length of Pratt street. The duties of the City Commissioner are clearly defined and prescribed by the Ordinances. The ascertainment of the cost of the work, and the apportionment under the rule to the property owners, are, as we have said, matters of measurement and arithmetical calculation, which must of necessity he entrusted to a ministerial agent. Neither in this, nor in any other respect, do we find any unauthorized delegation of power to this officer.

(Decided 17th March, 1881.)

Finding then no valid objection to these assessments, the pro forma decree appealed from must be reversed, and the bill dismissed.

Decree reversed, and bill dismissed.

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Dissenting Opinion

Alvey and Irvine, J.,

dissented, and the former filed the following opinion:

By the opinion of a bare majority of the Court in this case, the opinion of the majority in the case of the Gity of Baltimore vs. Scharf and others, 54 Md., 499, has been overruled. I concurred in the opinion of the Court in Scharf's Case, and can perceive no sufficient reason whatever why it should have been overruled or receded from by the Court. I must therefore dissent from the opinion of the majority of the Court filed in this case.

In that opinion there are three propositions asserted and made the basis of the judgment, which, in my opinion, with all due respect to the opinions of others,' cannot be supported in reason or by authority. These propositions are—

1st. That the question, whether the property along the-line of improvement is really benefited, is left exclusively to the judgment of the Mayor and City Council, and that their determination is final and conclusive, whether founded in fact or otherwise ; and that the property owners have no right to question, nor the Courts power to inquire into the facts of the case, and to relieve against any injustice of the special assessments, though they may be made when, in point of fact, no benefits will he conferred whatever.

2nd. That becáuse the special assessments upon the property of the complainants were made under the taxing power, as distinguished from the power of eminent domain, therefore no notice of any kind was required to he given to the parties of such assessments; and that it is not essential that the property owners should have an opportunity to he heard, either as to the propriety of the proposed improvement, the manner of its execution, or of the special assessments and collection thereof.

3rd. That the front foot rule of assessment or apportionment of the cost of the improvement, notwithstanding the repeal of those provisions of the law which expressly authorized it, still subsists, and that it was properly applied in this case.

I shall state briefly the reasons of my dissent from each of these propositions.

1. If it be true that the Ordinance, under which the present assessments were made, should .he taken as a final judgment, and so preclude all inquiry into the facts upon which it is supposed to be founded, there can he no good reason why all Ordinances of municipal corporations, dependent upon facts for their support, should not be equally conclusive. Whether a particular state of case actually exists, and whether that state of case constitutes a nuisance, or something else falling within the scope of municipal authority, in all such cases the Ordinances passed in reference to them must he taken as conclusive of the facts that would justify their adoption. The real state of facts becomes quite immaterial, and the Ordinance is the only thing that can he appealed to to determine the question of fact, and that must he by conclusive presumption if the Ordinance happen to he silent upon the subject. I must confess that I have not so understood the legal import of mere municipal Ordinances, when passed to affect the private rights of property of the citizen. All municipal authority is derived by delegation only, and the municipal agents must act within the limits of that authority ; and whenever the authority is transcended or •abused, or exercised in an unreasonable and therefore an unauthorized manner, the citizen has his remedy for relief •against the unwarranted action of the municipality or its agents. This proposition would seem to have the support of all authority entitled to respect.

In the case of Burns vs. City of Baltimore, 48 Md., 198, this Court declared Ordinance No. 79, of 1874, passed under the Act of 1874, ch. 218, for regrading, repaving, &c., ■ of Light street, utterly void, so far as it provided for special assessments, merely because it recited in the preamble that public convenience required the street to he improved. This was certainly going very far in the way of protection of private right as against the action ■of the city authorities ; for I suppose there is no case of paving or repaving of the public streets of a’ city that it is not done primarily and principally with a view to the public convenience, — certainly never with a view to mere private benefit. Indeed, there would he no authority at ■all for making the improvement except for public purposes. The declaration in the preamble did not say that it was for the public convenience alone, that the improvement was authorized to he made. A fair presumption, perhaps, in that case, could have been indulged, that while the public convenience was the primary and leading motive to the passage of the Ordinance, yet, such private benefits and advantages would accrue to the abutting property, as to justify the special assessments attempted to he made. But this Court held, and I am far from saying it did not rightly hold, that the Ordinance was void as to the special assessments, because it was supposed to be of doubtful construction, and, in such case, the presumption should be in favor of the right of the citizen. I am, however, clear in saying, that if the same indulgent construction had been extended to that Ordinance that has been extended to the one involved in this case, there-could have heen no difficulty in supporting the special' assessments, which were there declared void. A strong-presumption in favor of the rightfulness of the action of" the Mayor and Oity Council would certainly have saved the Ordinance in that case.

It is supposed that the cases of the City of Baltimore vs. Johnson & Moore, 6 H. & J., 375, The City vs. Howard,. Ib. 386, and The City vs. Hughes, 1 G. & J., 480, afford warrant for the conclusive effect attributed to the Ordinance in this case. But I do not so read those cases. Doubtless, Ordinances should be supported by all fairintendment, and they are certainly prima facie evidence of the facts upon which they profess to be founded. But in the cases referred to the question was not the same as that presented in this case. In those cases, the question was, whether there was authority given to the corporation to tax particular parts or districts of the city for-paving streets, in the absence of affirmative proof that, such pavement was specially beneficial to -that particular-part or district of the city in which it was made. The-improvements in those cases were required and made for public use and convenience, and the question was whether the city at large or the particular districts or parts of the-city in which the streets were located, should bear the tax. It was not a question of special benefits to abutting- property. The Court held, and it was all that was decided bearing upon this particular question, that the corporation could not tax any particular part or district of the city for paving, unless such paving appeared to be for the-benefit of that particular part or district. But that, in any Ordinance directing a street to be paved, and imposing a tax on the district for that purposes, it was not necessary to he stated in the Ordinance that it was for the benefit of such district; hut that it would he so taken,, if nothing appeared to the contrary. And the Court further held, that the paving of streets is prima facie for the benefit of the parts or districts of the city through which they pass, and more especially when applied for by a majority of the immediate inhabitants.

That a municipal Ordinance affecting a private right of property cannot, in its nature, be so conclusive as to preclude all inquiry into the facts upon which it professes; to be founded, would seem to be well established by express decision of this Court. In the case of Glenn vs. City of Baltimore, 5 G. & J., 424, in passing upon the-question as to how far an Ordinance in respect to a particular erection, supposed to be a nuisance, was to be taken as establishing the fact, the Court held, that, while all-fair intendment should be made in favor of the validity of the Ordinance, yet it was liable to be questioned on proof. They said: “It is true the corporation have power to pass all laws which are necessary or proper to-carry into effect any given power, and the degree of its necessity or propriety would not be minutely or critically scrutinized; but the Court ought to see that it may be the means of accomplishing the object of the grant. The degree of necessity would indeed be properly, perhaps,, the subject for the judgment of the corporation, but that it contributes in any degree, would be for the determination of the Court.” And in the case of Alexander & Wilson vs. City of Baltimore, 5 Gill, 383, 398, involving the same principle, and nearly the identical question that is presented in this case, by the reasoning, and whole tenor of the opinion of the Court, it was conceded that if the proper averments had been made in the bill, the question as to the fact of special benefits would have been open to the plaintiffs on the proof; and that, too, in a case-where the judgment of the Mayor and City Council had been passed, as to the right of exemption of a certain locality from the special assessments. Indeed, upon no •other principle would there be proper protection of private property within the limits of municipal corporations.

The principles and right of these special assessments are just in themselves when properly applied. It is only, however, when the property assessed receives from the improvement benefits in addition to those received by the community at large, that the principle can properly apply. This, says Judge Dillon, as the result of all the author-ties, is the true and only solid foundation upon which local assessments can rest. (2 Mun. Oorp., 3rd Ed., sec. 761.) And this is the precise ground upon which it is said by this Court that they can be supported, and none other. Alexander & Wilson vs. Baltimore, supra. The same principle is fully affirmed in Burns’ Case, 48 Md., 208. The special benefit, therefore, is the essential condition of the assessment. Without it, there is no power to make the assessment; and any attempt to enforce an assessment where there is no special benefit conferred is a wrong, and, if consummated, is nothing more nor less than the confiscation of private property for public use, without compensation.

Now, it is quite certain, I suppose, that it was not designed by the Act of 1874, ch. 218, to confer upon the •city an arbitrary power to pass Ordinances requiring the whole or any part of the cost of the improvement of the ■streets, to be assessed upon the property binding thereon, without respect to any special benefit to such property. If such was the design of the Act, I should have no hesitation in declaring it void, as transcending legislative power. That such was not the design of the Act, however, I suppose to have been decided by the case of Burns, to which I have referred. Special benefits then must be in the contemplation of the Ordinance to make it valid, so far as the special assessments are authorized ; and the question then is, whether any such special benefits are to accrue, or whether it be merely an assumption without any foundation whatever in fact. The complainants deny that there will be any special benefits to their property whatever, and allege that the improvement is solely and exclusively for the common benefit of the public generally; and thus bring their application within the principle applied in Burns’ Case, If, then, the principle, as a limitation upon legislative or municipal power, be worth anything, or has anything of substance in it, as a shield or protection against the invasion of the rights of private property, why not allow these complainants the benefit of it, notwithstanding the mere form of the Ordinance? To refuse their application upon such ground, would seem to be sacrificing that which is valuable and sacred to the merest form — not to say device that may, upon any occasion, be resorted to to make presumable justification for an Ordinance, when it would have none in fact.

In the kindred and closely analagous case of taking private property for public use, by authority of the State, the opinion of the legislatj*i^ or of the municipal corporation entrusted with the exercise of the power, is never conclusive upon the question, whether the use be public for which the property is sought to be taken. The Legislature cannot make the use public by simply declaring it so; and while the necessity or expediency of the exercise of the power in all cases rests with the Legislature, either mediately or immediately, the question whether the particular use be of such public nature as will justify the exercise of the power, is purely a judicial one; and no terms can be employed in a statute or an ■Ordinance sufficiently strong to conclude the question, or to exclude the Courts. No proposition is better established than this, and it has been expressly affirmed by this Court. N. C. Coal Co. vs. G. C. Coal Co., 37 Md., 560; 2 Kent Com., 340; Deansville Cemetery Asso., 66 N. Y., 569; Ryerson vs. Brown, 35 Mich., 333; Tyler vs. Beacher, 44 Vt., 648. Upon no other principle would the constitutional inhibition he of any value or protection to-the rights of private property.

Now, I take it to be clear, that, for the same reason that the Courts cannot he concluded upon the question of what, is a public use, the Legislature could not arbitrarily, and wholly irrespective of the fact, conclude the question here-involved, by simply declaring that special benefits to, abutting property would accrue from the particular improvement authorized, whether it he street, railway., turnpike road, or other highway, and therefore direct either the whole or a part of the cost of the improvement to he-assessed upon such property, and thus appropriate private-property to public use. And if the Legislature could not thus conclude the question, I know of no principle upon which a municipal corporation can do so by Ordinance. To say that either the Legislature or a municipal corporation can so proceed, is at once to break down all limitation or restriction as to the right, and to leave the whole matter entirely at the mercy of those who may he clothed with power to authorize the assessments. And the only answer that can be offered to the objection made to such unlimited power is, that we must not suppose that those-entrusted with its exercise will ever abuse it. But that, as we may easily perceive, is no answer at all, for it is-simply begging the whole question.

2. The next question is¿ was notice of the proceedings, essential, in order either to hind the property owners personally, or to fix the assessment as a charge upon the property assessed ?

Neither the Act of 18V4 nor the Ordinance under which the repaving was authorized to he done, made any provision in regard to notice; and, in fact, none was given. The Ordinance, passed without notice, at once became a conclusively binding decree, both in rem and in personam, according to present contention and decision, from which no appeal or relief can be had, however arbitrary or erroneous it may be. It is to bind not only the property ■authorized to be assessed, but the owners personally, and by that means all the property that they may own. 6 H. & J., 383; 45 Md., 621. And such being the case, the question is, whether such results can be effected by proceedings without warning or notice to those concerned, and yet be by due process of law, or by the law of the land, as those terms are now understood and applied ?

Of course, I am not to be understood as maintaining that taxes of any kind can only be assessed and collected by judicial proceeding. On the contrary, all taxes, under ■our system, are assessed and collected by proceeding in pais, and those proceedings are of necessity summary in their nature. But by the term summary, as said by the Supreme Court, in McMillan vs. Anderson, 95 U. S., 41, is ■not meant arbitrary, or unequal, or illegal. The assessment must, under both Federal and State Constitutions, be lawfully made. And in regard to notice, we know of no system of taxation in this country in which the parties affected by the assessments are not allowed, at some stage of the proceeding, an opportunity to be heard. Indeed, upon fundamental principles of right and justice, and as a guaranty of the rights of the •citizen against arbitrary exactions, notice is deemed, by the Courts of the highest authority, an essential element in the legality of all assessments, whether of ordinary taxes or for special benefits ; and any mode of assessment by which it has been attempted to deny to the parties affected the right and opportunity to be heard in their defence, has been denounced as essentially vicious, and therefore inoperative and void. Without notice, therefore, no valid assessment can be made. And it is no •answer to the objection of the want of notice that no injustice has heen done in the particular case, or that the assessment has been fairly and- justly made; for the legality of the Ordinance must be tested, not by what has been done in the particular instance, but by what may be done under its sanction. And for the plain proposition that notice, in all such cases as the present, is essential to the legality of the assessment, I need only refer to the cases of Overing vs. Foote, 65 N. Y., 263; In matter of Trustees of Public Schools, 31 N. Y., 574; Stuart vs. Palmer, 74 N. Y., 183; Philadelphia vs. Miller, 49 Penn St., 440; Butler vs. Saginaw, 26 Mich., 22; Thomas vs. Gain, 35 Mich., 155; Patten vs. Green, 13 Cal., 325; and to Cooley on Taxation, 265, 266.

Due process of law, say the Supreme Court of the United States, in the case of Murray vs. Hoboken Land and Improvement Co., 18 How., 272, is not confined to judicial proceedings, but extends to all proceedings which may affect the citizen in his rights of liberty or property. “ It is manifest,” say that Court, “ that it was not left to the legislative power to enact' any process which might be devised. The Article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave the Legislature free to make any process ‘ due process of' law,’ by its mere will.” And in the cases of McMillan vs. Anderson, 95 U. S., 37, and Davison vs. New Orleans, 96 U. S., 97, the principle that the citizen is entitled to the-protection afforded by requiring “ due process of law,” in imposing assessments upon his property, is fully recognized. But in those cases, the Court held it to be “ due process of law,” when the statute, under which the assessments were made, gave the parties affected the right to apply to a Court of justice to determine the validity of the assessments ;■ — a privilege not accorded to the parties affected by the Ordinance involved in this case. Supposing therefore notice to be-essential to constitute “due. process of law,” in cases of assessment like the present, it is quite clear that the requirements of hoth the State- and Federal Constitutions have been wholly disregarded, in making the assessments in question.

In the case of Thomas vs. Gain, 85 Mich., 155, the question was as to the validity of an assessment authorized hy statute upon lots within a certain district, “in proportion to the number of superficial feet therein,” for the making of sewers. No notice to or hearing of the owners of the lots was provided for by the statute, and Judge Cooley, in delivering the opinion of the Court, declared that the parties whose property was to he taken under summary tax proceedings were entitled, as of right, to he heard at some stage in the proceedings, before the tax could become an established charge against them or their property. He said: “The principle was recognized hy this Court in Butler vs. Supervisors of Saginaw, 26 Mich., 22. In England, until appeals were given from sewer assessments, it was held that the party taxed might sue the officer in trespass or replevin for a levy on his property, and in that suit might defeat the assessment if he could show that he was not benefited as the Commissioners had adjudged. See Dove vs. Gray, 2 T. R., 358; Masters vs. Scroggs, 3 M. & S., 447; Netherton vs. Ward, 3 B. & Ald., 21; Stafford vs. Hamston, 2 B. & B., 691; Soady vs. Wilson, 3 Ad. & El., 248; Emmerson vs. Saltmarsh, 7 Id., 226; Board of Works vs. Bridge Co., 1 El. & Bl., 964. In this country we do not allow the justice of the assessment to be inquired into in a suit to charge the officers with a personal liability ; hut it follows legitimately from this that parties taxed must have an opportunity to he heard regularly at some stage in the proceedings. Their rights are not to he concluded hy proceedings which are wholly ex parte.”

This question was very fully considered hy the Court of Appeals of New York, in the case of Stuart vs. Palmer, 74 N. Y., 183, and it was there held, that a statute imposing -an assessment for local improvement, without providing for notice to the owners of the property to he assessed, and an opportunity for them to be heard, was unconstitutional and void, as not being by “ due process of law.”

It is said that notice would he of no practical value or protection to the property owners, and hence it was not ■necessary to be given. But that is no reason whatever, in a legal and constitutional point of view, why they ■should not have notice, or why they should be denied the right to be heard before their property was actually charged ■and themselves made personally liable for the amount of ■the assessment. Such argument, however, has no real foundation either in reason or fact.

The second section of the Act of 1874, ch. 218, manifestly contemplates the exercise of discretion and judgment ■on the part of the Mayor and City Council, on each particular project of improvement, as to the right and propriety of assessing the cost of such improvement, in whole ■or in part, pro rata, upon the property binding on the ■street, lane, or alley, designed to be improved. Indeed, upon no other principle could the statute for a moment be sustained. The question, therefore, not only as to the propriety and need of the improvement itself, but the •question of the cost, the proportion and mode of assessment-^-whether the property abutting the improvement would really be specially benefited thereby, and to what extent; and whether it would be more just to assess the property according to its value, its area, or its front■age, — were all questions in which the property owners were vitally interested, and in respect to which they ■should have been heard. And it is only since the passage •of the Act of 1874 that this extreme and severe, and as I think dangerous, experiment, of denying the right of the citizen to be heard in these cases, has ever been ■attempted in the government of the City of Baltimore. In my judgment the experiment should not he sanctioned hy this Court.

3rd. As to the third proposition from which I dissent, I deem it necessary to say but little.

The Legislature, by the express terms of the Act of 1874, ch. 218, repealed secs. 845, 846, 847, 848, 849 and 850, of Article 4'of the Local Code, relating to the repaving and recurbing of streets in the City of Baltimore, and providing for the assessment of a portion of the cost thereof on the abutting, property, in proportion to its front feet„ Why this rule of assessment was entirely repealed, and in no form re-enacted, if it was not intended by the Legislature to get rid of it altogether, it is difficult to conjecture. The Legislature manifestly had a design in the repeal of the rule, and I think it is not difficult to perceivv the reason upon which they acted. By the repealing Act of 1874, the system which had previously prevailed up to that time, of only providing for repaving and recurbing the streets upon the application of two-thirds of the property owners along the street proposed to be improved, was abolished. The consent or application of the property owners was, by that Act, dispensed with, in those cases contemplated by the second section of the Act; and with that change it was but reasonable and proper that the arbitrary and unreasonable rule of assessment in proportion to the number of front feet should be abrogated.

What reason or justice is there in imposing the same amount of assessment on a given number of front feet of a lot only ten feet deep, with small or no improvement on it, as upon one two hundred feet deep, with large and valuable improvements thereon? And the same inequality, and consequent injustice, exist in the different localities of lots along the same street. The fundamental principle of taxation, that of equality according to value, is grossly violated in the application of this front foot rule; and it can therefore be no matter of surprise, nor ought it to he of regret, that the Legislature saw reason for abolishing it altogether. And this I take to be their declared meaning in the express repeal of section 845 Of Article 4 of the Local Code.

For the reasons I have stated, I am of opinion that the decree of the Court below, declaring the assessments void, ought to he affirmed by this- Court.