54 Md. 499 | Md. | 1880
delivered the opinion of the Court.
The bill of complaint in this cause was filed by the • appellees to restrain the Mayor and City Council of Baltimore from collecting certain taxes which had been assessed on them for repaving that portion of Baltimore street, between Harrison street on the east, and G-reene street on the west, by virtue of Ordinance Ho. 98 of the Ordinances of 1876. This Ordinance was passed in pursuance of authority from the Legislature given by ch. 218 of the Acts of 1874. The bill charges that the street was sufficiently paved for the interest of the complainants, with cobble stones which had already been paid for by the complainants ; that the repaving was ordered to he done with “Belgian pavement,” which was done for the benefit of the public generally, and was not necessary for the complainants, and subjects them to unnecessary cost and expense.
The bill sets out the several sums of money assessed on the complainants, and alleges that the Ordinance Ho. 98 ■ does not provide for the collection of the alleged assessments in accordance with the Act of 1874, ch. 218, and
The Ordinance in question has no preamble. It consists of three sections.' The first section simply repeals Ordidance No. 80, approved September 16th, 1814. Sections 2 and 8 are as follows : “ Section 2. And be it enacted and ordained that the City Commissioner be and he is hereby authorized and directed to have all that part of Baltimore street from the west side of Greene street to the east side of Harrison street repaved, and rekerbed where the same is necessary, the repaving to he done with the pavement known as the ‘ Belgian pavement/
“ Section 3. And be it enacted and ordained, that the cost of such repaving shall be defrayed according to the
The copy of the Ordinance filed with the answer of the Mayor and City Council, and alleged to be a true copy of the Ordinance, the appellees insist is not a true cojjy of the Ordinance as passed and as published in the printed copy of the Ordinances, which, by law, is made evidence of what the Ordinances are; while the appellants contend that the Ordinance, as passed and on file in the proper office, and of which the copy filed with their answer is a true copy, differs from the Ordinance in the printed volume in this—that in the latter a comma precedes the word “ repaved ” instead of following it, as is the case in the original. The effect of this improper punctuation in the printed copy, on which the appellees rely, is to make the discretion vested in the City Commissioner by the words “ where the same is necessary ” apply to the repaving as well as the rekerbing; whereas, the appellants insist the true punctuation confines it to the rekerbing. At the hearing it was admitted by the counsel for the appellees that the punctuation in the original is as charged by the appellants. The appellants contend that the Ordinance is perfectly valid, and has been passed and executed in entire conformity with the Act of Assembly; that whether the repaving was necessary cannot be inquired into by this proceeding, as the Council was the sole judge of its necessity and its beneficial character to the ajjpellees.
It is well settled that where nothing to the contrary appears in an Ordinance directing paving or repaving to be done, and the Ordinance charges the owners of the property along the line of the street with the cost of such, improvement, the presumption is, that the Mayor and
Judge Dillost says, in section 262 of his work on Municipal Corporations, “Where the power to legislate on a. given subject is conferred, but the mode of its exercise is not prescribed, there the Ordinance passed in pursuance-thereof must be a reasonable exercise of the power, or it will be pronounced invalid.” The Legislature could not have intended so unreasonable an exercise of the powers conferred about paving and repaving, as to justify such an Ordinance as this one is, without any notice of any kind to the property-holders.
If notice was necessary, and was provided for by the-statute and Ordinances, at a time whére a majority of front feet owners were required to petition for the repaving, as. a protection to those who did not unite in the application, even to the extent of requiring notice of what action the-Mayor and City Council had taken, in order that an
Can such an Ordinance he supported? and can proceedings under it he upheld, of which, so far as the complainants are concerned, the first notice they had was the levy for assessments.
The Constitution of the United States provides that no State shall deprive any person of life, liberty, or property without due process of law; “ what is due process of law ” has heen*tEUsuhject of much and very able discussion, and •of many decisions; but an exact definition has never been given which will include all cases to which it applies. The full meaning of such an important phrase remains to he ascertained by the gradual process of “exclusion” and “inclusion” in judicial determination as cases may •arise. Davidson vs. New Orleans, 6 Otto, 104. Judge Cooley, in his work on Constitutional Limitations, page 356, after saying that “ due process of law ” is not confined to judicial proceedings, says, that “in each particular case it means such an exertion of the powers of Government as the settled maxims of the law sanction, and under such ■safe-guards for the protection of individual rights as those
The case of Stuart vs. Palmer, 74 N. Y., 183, is similar to this and exactly in point. An Act was passed “ to lay out, open and grade Atlantic avenue in the town of New Lots, King’s County.” Proceedings were had and assessments of taxes were made. A proceeding was instituted on the part of one of the persons taxed, to vacate the-assessments, to remove a cloud from his title and to-restrain the collector from collecting the tax. In that case no notice was provided for by the law or the-ordinance. The case was most carefully considered, and Judge Earl in delivering a very convincing opinion,, in which all the other Judges concurred, says: “I am of opinion that the Constitution sanctions no law imposing such an assessment, without notice tó, and a. hearing, or an opportunity of a hearing by the owners of the property to be assessed. It is not enough that the-owners may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require notice to them and give them a right to a hearing and an opportunity to he heard. It matters not upon .the question of the constitutionality of such a law, that the assessment, has in fact, been fairly apportioned. The constitutional
The same doctrine is maintained by the Supreme Court of the United States in Davidson vs. New Orleans, 6 Otto, 104; Philadelphia vs. Miller, 49 Pa., 440; 31 N. Y., 514; Ireland vs. The City of Rochester, 51 Bar., 414.
In Ohio, and perhaps some other States, it has been held that notice is not necessary; but, in our opinion, the weight of authority is decidedly on the side of its necessity as a constitutional right. Ho cause could better illustrate the necessity for it than the present one. Here was a pavement of cobble stones for which the complainants, or their predecessors in title, had paid. The City determines to take that up, and replace it with a pavement of a differ- • ent material and character. Adjudging, without notice to them, that their property will he much increased in value by the improvement, so much so as to justify the imposition of two-thirds of the cost of the new pavement upon them, they are taxed accordingly, and the collector of taxes is sent after them to collect it,—when the first information they have had of the proceeding is the presentation of a tax hill which is a lien on their property. It may he likened to obtaining a judgment without the defendant having ever been summoned. Of course, on proper proceeding such judgment cannot stand. The injustice of such legislation is glaring. It is not only unjust; it is an invasion of those rights which cannot be interfered with except by “due process of law,” and this “due process of law” involves a day for, and an opportunity for, a hearing. This Ordinance makes no provision for notice, and, on the authority of adjudged cases, is invalid. If the Act of Assembly is good, the Ordinance is void so far as the appellees are concerned, for the want of
The Ordinance does not establish upon what principle this assessment is to be made. The videlicet would seem to limit the provisions of Ordinance 44, intended to be re-enacted here, to the particulars following the videlicet, which designates the proportion to be paid by City and owners respectively, and how the tax is to be collected. Conceding it, however, a wider range and to include any provision of Ordinance 44, which may be applicable to the subject indicated, we look in vain to Ordinance 44 for any provision how this tax is to be imposed. Section 17 of the last-mentioned Ordinance, which is the only section relating to the subject, fixes no basis for a computation. How that basis may be, according to the authorities and practice, according to area, according to frontage, or according to the value of the property. It is manifest that these several modes, as the one or the other might be adopted, might materially affect the contributory share of the respective owners. This is especially one of the things about which the owners would be entitled to notice and a hearing. Apportionment according to frontage is subject to serious objection, as sometimes working great injustice-
The questions raised by the appellees that the city could not order this repaving to be done at the charge of the appellees, because the charter of the City Passenger Railway Company imposed the duty, on that corporation, of keeping the track of the road and for two feet on each side of it in thorough repair; or if it could, it could not do so legally without assessing it with a part of the cost, are not necessary to the decision of the case as it stands; but as it may prevent further litigation on that score, we may properly dispose of the questions. There can be no doubt that the rails, road-bed and other property of that corporation are subject to taxation for municipal purposes ; but it does not follow that it must contribute specially to street improvement such as this is. Their estate is such as would not be enhanced in value by the projected work. The only ground on which assessments, on the owners of land on each side of the road, for such improvements, has ever been justified, is on the theory that such property owners are especially benefited, and the • land itself enhanced in value by the improvements. Stuart vs. Palmer, 14 N. Y., 189; Burns’ Case, 48 Md., 198. The property of the City Passenger Railway does not fall within the description of lands embraced in the theory; nor within the description of “ property ” which the Act of Assembly directs may be made to share the burden of the improvement. It is the property on each side of the street which the Act "authorizes the city to charge in whole or in part with the cost of the repaving.
The objection that the obligation to repair is on the Railway by the express terms of its charter, interposes no sufficient reasons to avoid the Ordinance. Their obligation is to keep in repair, not to repave with a new and different material and perhaps more costly. The obligation of the Railway company to repair the new pavement
Muller, J., dissented.
This decree, subsequently, after a re-argument of the case, was rescinded, the decree appealed from reversed, and the bill dismissed. Vide Mayor, &c. of Baltimore vs. Scharf, et al., 56 Md.