72 Md. 587 | Md. | 1890
Lead Opinion
delivered the opinion of the Court.
The identical question arising on the record now before us has been passed on by this Court on several occasions, but is now presented distinctively as a Feel-' eral question. When the validity of ordinance No. 98
Ordinance No. 100 of 1886, passed under the Act of 1814, ch. 218, is now assailed upon the ground that it not only violates the Declaration of Rights of Maryland, hut likewise the fifth and fourteenth amendments to the Federal Constitution.
By the Act of 1814, ch. 218, the Mayor and City Oouncil of Baltimore were authorized to provide by ordinance for the grading, paving, and kerbing of any street in the City of Baltimore, and for assessing the cost of any such work, in whole or in part, pro rata, upon the property binding on such street, and for collecting such assessment as other city taxes are collected. By ordinance No. 100 of 1886 the City Commissioner was directed to have North avenue, between Pennsylvania avenue and the western limits of the
Now, it will be observed that neither the Act of 1874. ch. 218, nor ordinance No. 100 of 1886, nor section 34 of Article 47 of the City Code, makes the slightest provision for giving notice to the parties, who may be charged with the cost of paving North avenue, that the work will be done, or that they will
The Act of 1814 does not itself impose the tax for grading, paving, and kerbing North avenue. It does not fix the amount of that tax, nor the proportion thereof to be paid by the abutting owners, nor the standard by which that proportion is tobe ascertained. No legislative rule was prescribed which should govern the apportionment of any assessment. It is true that from 1182 to 1860, by various Acts of Assembly, and in-1860 by sections 845 and 841 of Article 4 of the Code of Public Local Laws, the front foot-rule was established by the Legislature; but by the repeal of those sections by the Act of 1814, ch. 218, this rule was abrogated — so far as it had been'established by legislative
Due process of law is not confined to judicial proceedings. The Article of the Constitution 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 pleasure. Murray’s Lessee, et al. vs. Hoboken Land and Imp. Co., 18 How., 272. There would seem to be no doubt that notice, in all such cases as the present, is required to constitute due process of law, and is essential to the validity of the assessment. Walston vs. Nevin, 128 U. S., 578; Palmer vs. McMahon, 133 U. S., 660; Spencer vs. Merchant, 125 U. S., 345; Hagar vs. Reclamation District, No. 108, 111 U. S., 701; Davidson vs. New Orleans, 96 U. S., 97; McMillen vs. Anderson, 95 U. S., 37; Stuart vs. Palmer, 74 N. Y., 183; Overing vs. Foote, 65 N. Y., 263; City of Philadelphia vs. Miller,
In Stuart vs. Palmer, supra, Earl, Judge, speaking for the Court, said: “The Legislature can no more arbitrarily impose an assessment for which property-may be taken and sold than it can render a judgment against a person without a hearing. It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his life, liberty or property without an opportunity to be heard in defence of his rights; and the constitutional provision that no person shall be deprived of these ‘without due process of law’ has its foundation in this rule. This provision is the most important guaranty of personal rights to be found in the Federal or State Constitution. It is a limitation upon an arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily be deprived of his life, liberty or property. This the Legislature cannot do, nor authorize to he done. ‘Due process of law’ is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty or property, whether the proceeding he judicial, administrative or executive in its nature. Weimer vs. Bunbury, 30 Mich., 201. This great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights.” In Spencer vs. Merchant, supra, it was held by the Supreme Court that “ if the Legislature provides for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question, what proportion of the tax shall be assessed upon his land, there is no taking of his property Avithout due process of law.” The converse of this must
As we have seen, section 84 of Article 47 of the City Code, is a general ordinance which provides, in all cases of grading and paving streets, that the whole cost shall be borne by the abutting owners in proportion to the number of front feet owned by them, respectively. Nothing could be more arbitrary than this. The cost is apportioned in advance without any reference whatever to the value of the property; but solely with regard to the number of front feet; by which rule the heaviest amount may fall on the least 'valuable property and the lightest on the most valuable. Under ordinance No. 100 of 1886, no opportunity was given the owners along North avenue to show that the apportionment was wrong; that the rule by which the amount was fixed by the city, not by the Legislature, was unjust; or that the calculations of the City Commissioner were erroneous. The property holders are condemned to pay what is exacted of them, without having been afforded an opportunity to be heard in their own defence at all. Why should the citizen 'not be allowed to contest the fairness and equality of the front foot rule, or any other rule
The necessary result of the case of Spencer vs. Merchant, supra, is that we must return to the doctrine laid down in Scharf’s Case, 54 Md., 499, and recede from the opinion overruling that case, and asserting the opposite view.
But it has been suggested that the order appealed from should be affirmed because even had an opportunity been given to the appellant to appear and be heard before the tax was imposed, no different result could have been reached. To this we cannot agree. The constitutional guaranty belongs to the individual by right, and not by the mere favor of the Legislature or the sufferance of judicial tribunals. It is the duty of the Courts to see that this right is not invaded under any pretext whatever, when the subject is before them. Its value as a safeguard would speedily dwindle away, or, at least, become exceedingly precarious, if the
In further support of the conclusion which we have reached, we refer to the opinion delivered by Judge Irving in Scharf’s Case, and to the dissenting opinion filed by Chief Judge Alvey in the Johns Hopkins Hospital Case.
It follows from our understanding of the case of Spencer vs. Merchant that the decree of. the Circuit Court must be reversed, and the cause remanded that an injunction may issue, because the assessment levied upon the appellant’s property is null and void; and it is null and void because the ordinance made no provision for notice to and hearing of any proprietor whose land adjoined North avenue, upon the question what proportion of the tax should be assessed upon his land.
Decree reversed, and cause remanded.
Dissenting Opinion
The motion for a reargument having been denied,
filed the following dissenting opinion, in which Judge Bryan concurred:
The question now before us, is one of more than ordinary importance, and I cannot but regret the conclusion which has been reached by the majority of the Court. I say regret, because if we are to be governed by the repeated decisions of this Court on the subject, if the safe and time honored maxim, “stare decisis,” is to be recognized at all, then the question is no longer an open question. But these decisions, although made upon the fullest argument, and fullest consideration, are now, in the opinion of the majority of the Court, all wrong, not only wrong in principle, but in conflict, it is said, with the late case of Spencer vs. Merchant, 125 U. S., 345. As I do not concur in this opinion, I propose to state briefly, the grounds of my dissent. The ordinance under which this question arises, directs that a portion of North avenue shall be graded and paved; and it directs that the City Commissioner shall assess the expense thereof upon the owners of abutting property, in proportion to the number of front-feet of their respective properties — in other words, by what is known as “the front foot rule.”
The appellant is owner of a lot fronting on said avenue, and the amouut assessed to her by the front foot rule is admitted to be her pro rata share of the expense. So there is no error in this respect. But the ordinance under which the assessment was made, is, it
Now, these decisions we are asked to reverse, because they are, it is said, in conflict with Spencer vs. Merchant, in which, according to the appellant’s contention, the Supreme Court has, by implication at least, decided that a statute, which directs an assessment to be made on property for grading and paving a street, whether by the front foot-rule or in any other manner, without providing for notice and hearing on the part of the owners, is taking “property without due process of law,” and, therefore, in violation of the Fourteenth Amendment. Tbe decision of the Court upon a Federal question is, I admit, binding upon us, whatever may be our own opinion in regard to it. But has the Supreme Court directly or even by implication, so decided, for the inquiry comes to this ? Now, in Spencer vs. Merchant the New York statute directed commissioners to grade and pave Atlantic avenue in the City of Brooklyn, and to apportion the expense thereof equitably upon all lands lying within three hundred feet on either side of the avenue, taking into consideration the benefits derived from the improvement. These assessments some of the land owners refused to pay, and upon proceedings instituted against them, the Court of Appeals of that State decided that
It was not intended, say the Supreme Court, “ to prevent a State from adjusting a system of taxation in all proper and reasonable ways,” nor was it “intended to compel a State to adopt an iron rule of taxation.” Bell’s Gap Railroad Co. vs. Pennsylvania, 134 U. S., 232.
So it does not seem to me that Spencer vs. Merchant can fairly be construed as deciding that an ordinance like the one now before us, is in violation of the Fourteenth Amendment; and until that Court shall so decide we ought, I think, to stand by the deliberate judgments of this Court in regard to the question, especially as the City of Baltimore has expended large sums of money in improvements of this kind upon the faith of these decisions, the greater part of which must now be lost if these decisions are reversed. There is nothing certainly in the case of the appellant to commend it to the favorable consideration of the Court. Although the ordinance did not in terms provide that notice should be given to the lot-owners before the assessment was made, the City Commissioner did advertise for proposals for grading and paving the street in the several newspapers published in the city. The work was begun in October, 1886, and prosecuted from time to time till September, 1888. During all this time the appellant stood by and saw the city expending large sums of money in grading and paving this street, without making any objection or protest of any kind against the prosecution of the work. And now, when it has been completed, when her property binding on the street has been improved to the extent of four thousand dollars, she appeals to a Court of equity
(Filed 3rd February, 1891.)