Lyon v. Mayor C.C. of Hyattsville

*308 Boyd, C. J., delivered the opinion of the Court. This is an appeal from a decree of the lower Court denying an injunction and dismissing the bill of complaint filed by the appellant against the appellee. The bill alleges that the plaintiff (appellant) is the owner of a tract of land'in Hyattsville, beginning on the west side of the Washington and Baltimore Turnpike, now known as Maryland avenue, at the middle of Arundel avenue, and running thence west along said middle of that avenue 358 feet; thence north, at right angles to said avenue, 378 feet to the middle of Calvert avenue; thence east along the middle of Calvert avenue, and parallel with Arundel avenue, 410 feet to the west side of the turnpike, or Maryland avenue; thence south 81/3 degrees west along said turnpike or Maryland avenue 110 feet to a corner; thence south 7 degrees along the west side of said turnpike 274 feet to the beginning, and that said property is improved by a dwelling house and other improvements. The object of the bill is to prevent the collection of an assessment of $269.38 against the plaintiff’s property for a sewer that was built by the defendant (appellee) and to have said assessment set.aside and declared void. An order to show cause why the injunction should not issue was passed, and an answer was filed by the appellee. The case was submitted on bill and answer, and hence'the answer must be taken as true so far as responsive to the bill. Miller’s Eq. Proc. 317-322, 686. The brief of the appellant relies mainly on the claim that the assessment by the lineal foot is a taking of private property without due process of law and a violation of the Fourteenth Amendment to the Federal Con-situation, but as other questions are suggested, we will consider them also. 1. Under the Act of 1904, Chapter 125, the Mayor and Common Council of Hyattsville was authorized to establish, construct and maintain a sewerage system for the town and to issue its bonds to an amount not exceeding $30,000.00. That sewer was only constructed on Maryland avenue as. far north as Arundel avenue. By section 15 of Chapter 79 of *309 Acts of 1908, the corporation was given “authority to extend the water mains and sewers as the interest of the town from time to time in its opinion demands, assessing upon the land abutting such extensions the cost thereof, which assessment shall be a lien upon such abutting property, to be assessed at such time as the Mayor and Common Council may determine, and to be collected from the owners of said abutting property by said Council as taxes due the corporation of Hyattsville are collected, and the Mayor and Common Council to have power to make all necessary regulations as to the notice of such assessments to the property owners.” Under the authority of that Act ordinances were passed for the construction of the sewer in question, and there was an assessment of $269.38 on the property of the appellant, but it was assessed in the name of her husband, W. C. Lyon. That sewer was constructed on Maryland avenue to Carroll avenue, which is north of Arundel avenue, and then out Carroll avenue. It runs 366.50 feet in front of the appellant’s property on Maryland avenue. The appellant contends that this was not an extension of the present sewerage system, and that the town was only authorized to extend the sewer .of 1904 from some point at which it ended. We will content ourselves by quotingi from the opinion of Judge Beall as to that ground. He said: “Manifestly the law meant to give the town the power to extend the sewerage system of the town, and did not mean to confine it necessarily to adding to the length of the old sewer constructed under the Act of 1904. The purpose of the Act was to enable the town to meet the growing demands of increasing population by reaching portions of the town with sewers as it became built up.” 2. The second reason assigned is equally without merit. It is contended that the new sewer is in part a duplication of an existing one, and that there was no authority for such construction. It is true that for some distance south of Arundel avenue the new sewer is parallel with the old one *310 on Maryland avenue, but tbe answer effectually disposes of that objection. In the first place it denies that such duplicate sewer was in front of the appellant’s property, or that said property was in any way affected thereby, or that appellee has attempted to assess any part of the costs of such duplicate sewer against the appellant’s property or any other property, but it alleges that the duplication was owing to the existing conditions. In order to have a proper grade in the extension of the sewer on Maryland avenue, north of Arundel avenue, it was necessary in the opinion of the engineer in charge to begin south of Arundel avenue, and it was begun about midway between the latter and Maple avenue. After the sewer of 1904 was laid the State Roads Commission had taken over Maryland avenue and had macadamized it and made a first-class roadway out of it. The appellee found upon investigation that it would be cheaper to run a parallel sewer for the distance spoken of than to tear up the road, place the old sewer deeper and then repair the road. It therefore laid that part of the new sewer on the side of the avenue, where it was not macadamized, which was undoubtedly proper and cheaper, if the allegations in the answer are correct, as we must assume them to be. 3. In reference to the reason assigned that the property of the appellant is not benefited by the construction of the sewer it would perhaps only be necessary to refer to the case of Hyattsville v. Smith, 105 Md. 318. Judge Bukke, in speaking for the Court, after referring to certain fundamental maxims in the law of taxation, stated by Judge Cooley, said: “Two others, which have been long and firmly fixed in the law of this State, may be added; first, that the Legislature has the power of taxing particular districts for local benefits or improvements; and, secondly, to authorize a municipal corporation to open, grade, pave, curb, etc., any street, or part of a street, and to assess the cost of doing such work upon the property binding upon such street or part thereof, and that in the absence of any declaration of *311 intent to the contrary, the presumption would be that the Legislature considered. that the purpose for which the tax or assessment was levied was a public purpose, and that the improvement would inure to the special benefit and advantage of the adjacent owner upon whose property the assessment is laid.” A number of Maryland cases are then cited by him, and we would also refer to Bassett v. Ocean City, 118 Md. 114; Alberger v. Baltimore, 64 Md. 1; French v. Barber Asphalt Paving Co., 181 U. S. 324; 4 Dillon on Municipal Corporations (5th Ed.), 2522. 4. The next objection is that the assessment of the cost of the sewer upon the abutting property, according to the frontage of each parcel, is a taking of private property without due process of law and contrary to the fourteenth amendment to the Federal Constitution. In Hyattsville v. Smith, supra, we sustained an assessment made according to the front foot rule under a section of the charter of Hyattsville very similar to- the one under which this improvement was made, as we also did in Bassett v. Ocean City, supra, and Baltimore v. Johns Hopkins Hospital, 56 Md. 1. Unless therefore the appellant is correct in his contention that the Supreme Court of the United States has decided otherwise, the question is settled in this State. The case relied on by the appellant is Norwood v. Baker, 172 U. S. 269. "While there are expressions in that case which might seem to sustain the position of the appellant, the Supreme Court has explained that decision and has pointed out that it was not intended to adopt the rule which some courts thought it had established. In French v. Barber Asphalt Paving Co., 181 U. S. 324, the case of Norwood v. Baker was referred to at some length, and a number of authorities were considered, and it was held that (quoting from the syllabus) : “The apportionment of the entire cost of a street pavement upon the abutting lots according to their frontage, without any preliminary hearing as to benefits, may ■be authorized by the Legislature, and this will not constitute *312 a taking of property without due process of law.” The Court, quoting from and approving Dillon on Municipal Corporations, said: “The Courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power, or included within it. * * * Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the-abutting property or other property specially benefited, and, if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is according to the present weight of authority considered to be a question of legislative expediency. (2 Dill. Mun. Corp., section 752, 4th Ed.). This array of authority was confronted in the Courts below, with the decision of this Court in the case of Norwood v. Baker, 172 U. S. 269, which was claimed to overrule our previous cases, and to establish the principle that the cost of a local improvement can not be assessed against abutting property according to frontage, unless the law, under which the improvement is made, provides for a preliminary hearing as to the benefits to be derived by the property to be assessed. But we agree with the Supreme Court of Missouri in its view that such is not the necessary legal import, of the decision in Norwood v. Baker.” Then, after referring to Norwood v. Baker at some length, the Court said: “That this decision did not go to the extent claimed by the plaintiff in error in this case is evident, because in the opinion of the majority it is expressly said that the decision was not inconsistent with our decisions in Parsons v. District of Columbia, 170 U. S. 45, 56; 42 L. Ed. 943, 947, and in Spencer v. Merchant, 125 U. S. 345, 357; 31 L. Ed. 763, 768.” In Wight v. Davidson, 181 U. S. 371, the Supreme Court, in considering the case of Norwood v. Baker, said: “There the question was as to the validity of a village ordinance, which imposed the entire cost and expenses of opening a *313 street, irrespective of the question whether the property was benefited by the opening of the street. The Legislature of the State had not defined or designated the abutting pi’opertv as benefited by the improvement, nor had the village authorities made any inquiry into the question of benefits * * *. That it was not intended by this decision to overrule Bauman v. Ross and Parsons v. District of Columbia is seen in the opinion where both those cases are cited, and declared not to be inconsistent with the conclusion reached.” Without quoting from other cases, see Tonawanda v. Lyon, 181 U. S. 389; Cass Farm Co. v. Detroit, 181 U. S. 396; Webster v. Fargo, 181 U. S. 394; Detroit v. Parker, 181 U. S. 399; Wormley v. District of Columbia, 181 U. S. 402; Allen v. District of Columbia, 181 U. S. 402; Shumate v. Heman, 181 U. S. 402; Chadwick v. Kelley, 187 U. S. 540. Many decisions are collected in the note to Hecuvner v. Elkins, 69 W. Ya. 255, as reported in 26 Am. & Eng. An. Cases, 655. Assessments levied by the front foot are thus fully sanctioned by the Supreme Court and the cases sustaining that mode decided by that Court were not overruled by Norwood v. Baker. It is said in the brief of the appellant that the cases relied on by the appellee were all from the District of Columbia, •and it is attempted to point out a distinction between them and that of Norwood v. Baker, but without deeming it necessary to say more as to that suggestion, it will be seen that a number of those cited above were not from the District of ■Columbia, and the Supreme Court made no such distinction. An extended review of the Supreme Court decisions can be found in 4 Dillon on Mun. Cor. (5th Ed.), section 1436, where the late cases are cited in the notes. Inasmuch, then, ■as we find nothing in the decisions of the Supreme Court to ■cause us to change our decisions on the subject, and as-the latter have distinctly placed this Court in the line of cases sustaining the front foot rule, it is clear that the injunction could not have been granted upon the ground now under ■consideration. *314 It may be well to add that the answer and the ordinance assessing the costs show that only one-half of the cost of the sewer on Maryland avenue in front of the appellant’s property was assessed against it, and that there is no occasion to collect by general taxation any portion of the cost of .constructing the sewer or to use for that purpose money in its. treasury placed there for other purposes. It is also distinctly alleged in the answer that the plaintiff’s property is specially benefited by the sewer. .5. The objection that no notice was given to the appellant of the meeting of the Mayor and Common Council for the purpose of making an assessment of the cost of constructing the sewer upon the abutting lands is, under the circumstances shown by this record, wholly without merit, and the bill fails to disclose material facts in reference to that question. The answer shows that this property had been carried on the tax record of the appellee in the name of W. C. Lyon, the husband of the plaintiff, for at least thirteen years, and that during that period the taxes have been paid theron by him and in his name, upon bills rendered without objection or inquiry by the plaintiff. It is further alleged that all of the property owners, except the owner of the property now claimed by the appellant, abutting on Maryland avenue, from Arundel avenue to Carroll avenue, and on Carroll avenue to- Cecil avenue, filed a petition with appellee to have-the sewer constructed; that several informal conferences between the property owners and the Mayor and Common Council were held, at which the necessity for such sewer, the-size thereof, character and best method of constructing the same were discussed; that as the result of the conferences the Mayor and Common Council became convinced of the necessity for such sewer and in order that it might be taken up in a formal way and in due order, although not required by law1-, notice was sent to- all the owners whose names appeared upon the tax records that the Mayor and Common Council would on the day named hear the property o-wners upon the- questions-, of the necessity for and size of such a sewer, and that on *315 that day the property owners appeared and before any action was taken every property owner who desired to be heard was heard. An ordinance was duly passed and the sewer constructed. The Mayor and Common Council afterwards directed notices to be sent, in accordance with the terms of the original ordinance, to the owners of lands abutting said sewer, that they would meet at a time and place named for the purpose of making an assessment of the costs, and notice was sent to each of the property owners appearing upon the tax records of said town; that at the time and place appointed certain property owners, including W. O. Lyon, were present and the total costs, the number of front feet- liable to be assessed and the cost per front foot were all explained to them and every one desiring to be heard was heard, but not a dissenting voice was raised. An ordinance making the assessment was afterwards passed. It is further alleged that at all of the conferences, with the exception of possibly one or two, W. O. Lyon was present, took part in the discussions and, being a civil engineer, at one of the conferences offered to prepare a plan for the construction of said sewer; that all of the notices were therefore sent to him and that at no time did he intimate that he was not the owner of the property; that the plaintiff and her said husband reside together in Hyattsville, and the sewer was constructed in front of their place of residence. The answer further avers that she well knew and was fully advised as to the proceedings being taken by the defendant, and that, if she be in fact the owner of the property, she knew that her husband was present at said meetings, and was SO' present as her agent and representative and she is now estopped to deny it. The assessment was “On that part of the Killian tract fronting 366.50 feet on Maryland avenue, and assessed in the name of W. C. Lyon, $269.38,” and the bill, for the amount of the assessment, which was sent to W. O. Lyon, was filed by the plaintiff with her bill of complaint—being another circumstance to show that she was kept informed as to what was being done in reference to the sewer. *316 Under such, circumstances, there being no denial of the averments in the answer, which has the effect stated above, inasmuch as the case was heard on bill and answer, the plaintiff cannot be granted relief in a Court of Equity on the ground that the assessment was not made in her name, or that the notice was not sent to her. The assessment was in fact made against the property, which was correctly stated to be assessed in the name of W. C. Lyon. If authorities be necessary to show that such objection to assessments for local improvements will not under such circumstances be countenanced by Courts of justice, see Wilkens Co. v. Baltimore, 103 Md. 293; Moffat v. Calvert Co., 97 Md. 266; Parsons v. District of Columbia, 170 U. S. 45; Wight v. Davidson, 181 U. S. 377; Chadwick v. Kelley, 187 U. S. 540; In Re McLean, 138 N. Y. 164; Atkinson v. Newton, 169 Mass. 240; Stettler v. East Rutherford, 65 N. J. L. 528; 10 Am. & Eng. Ency. of Law 230; 25 Ibid. 1205. We do not deem it necessary to consider the additional question suggested by the appellee—whether under this, statute any notice was required before the assessment was made. We are of the opinion that the lower Court was right in refusing to grant an injunction, and as there was no reason for retaining the bill, it was properly dismissed. Decree affirmed, the appellant to pay the costs.