Mayor of Baltimore v. Hughes's Adm'r D. B. N.

Duciiaxax, Ch. J. delivered the opinion of the court A recovery by the plaintiffs, of the taxes imposed under the 13th section of the ordinance of the 9th of March, 1807, is resisted by the defendant on two grounds. 1st. That the power given by the ordinance has not been well executed. 2d. That the ordinance itself is not authorised by the charter. The second ground relied upon involves the construction both of the charter and the ordinance, and will be first examined. The second section of the act of 1797, ch. 54, a supplement to the act incorporating the city of Baltimore, gives to the corporation power to pass all ordinances, necessary for paving and keeping the streets, &c. in repair, “and to tax any particular part or district of the city for paving the streets, lanes or alleys therein, or for sinking wells, or erecting pumps, which may appear for the benefit of such particular part or district. ” In the case of The Mayor and City, Council of Baltimore, vs. Moore and Johnson, 6 Harr. & Johns. 380, it was decided by this court, that the word which in that provision of the act, related as well to the paving the streets, lanes and alleys, as to the sinking of wells and erecting pumps, and that the corporation had authority to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, which might appear for the benefit of such particular part or district. The reasoning by which that conclusion was arrived at, need not be re — 492 — peated in this place. A different construction however would certainly he at war with the intention of the legislature, as it never could have been contemplated, to give to the corporation ■the .power to: tax any particular part or district of the city, for any paving which was for the general benefit, and not for the benefit of the immediate part or district taxed; which under a different construction, would be the effect of the second section ■of the act of 1797, taken altogether. Under this restricted construction, limiting the power of the corporation to tax any particular part or district of the city, for paving the streets, lanes and alleys therein, to a paving which shall be, or appear to be for the benefit of such particular district, and not for the general benefit of the city, which ought to be paid for out of the general fund, and not by the imposition of a special tax upon any particular part of the city,, we think the corporation is not confined to any particular description of benefit, such as the ordinary benefit and advantage of paved streets; and that the preservation of- the health of such particular part of the city, is a benefit within the meaning and scope of the act. ■ The legality 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 theobenefit 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 authorises it to be imposed, and that the paving appeared to the city council, to be for, the benefit of the particular district. But where an ordinance provides for the paving a street, &c. in a particular district, and the imposition of a special tax for that purpose on such district, which paving appears by the or — 493 — dinance to be for the general benefit of the city, and not for the benefit of the particular district^ such an ordinance is not in pursuance of the authority conferred by the charter, and is void. And such it is contended is the character of the 13th section of the ordinance of the 9th March, 1801, providing for the imposition of the taxes the recovery of which in this suit is resisted. The provision of that section is in these words, “that if the commissioners of health, shall at any time report in writing to the city commissioners, that a nuisance exists in any street, lane or alley in the city of Baltimore, which will endanger the health thereof, and the city commissioners upon a full examination thereof, should be of the same opinion, and that the same cannot be effectually removed, without paving such street, lane or alley, they are hereby authorised and required, to proceed to the paving of such street, lane or alley, and to issue their warrant under their hands to the city collector, directing him to collect the tax which may be imposed for the paving the same, &c. It is supposed that, it appears upon the face of this ordinance,, that the nuisance here authorised to be removed by paving the street, &c. in which it may be found to exist, is such a nuisance only, as in the opinion of the commissioners of health and the city commissioners, will endanger the health of the city generally, and not of the particular district in which the paving is authorised to be done, and the tax to be imposed; and that the paving and taxing is intended for the general benefit of the city and not of the particular district. If such be the true construction of the ordinance, it cannot be questioned, that it was unauthorised by the charter, and that provision of it nugatory and void. But to arrive at that conclusion, it must either be assumed, that a nuisance cannot exist in any particular part or district of the city of Baltimore, affecting or endangering the health of such particular part or district, without also so affecting or endangering the health of the whole city, or of the city generally, as to be a matter of such general concern, as that the means resorted^to for removing it, can only be paid for out of the general fund, and not by a tax upon the particular district in which it may exist; and consequently that the paving contemplated — 494 — and provided for by this ordinance, could only have appeared to be,”and been intended for the general benefit of the city, and could not have been 'considered to be and intended for the benefit of the particular district to be paved, or that the language of the ordinance is such, as to show the object of the paving ■ provided for, to be the general benefit of the city, and not the benefit of the immediate district. With respect to the first of these positions, it by no means appears to us, that a nuisance cannot exist in a particular part or district of the city of Baltimore, affecting or endangering the health of such part or district, without also affecting or endangering the health of the city generally, and that no paving can be authorised for the removal of a nuisance endangering the health of a particular district, without having for its object the general benefit of the city, and not the benefit of the district in which the nuisance may exist. And if such a nuisance may exist, of which the corporation is competent to judge, it has authority, under the charter, to pass an ordinance for the removal of such a nuisance by paving, and to impose a local tax for that purpose, if it shall appear to be for the benefit of the particular district, in which the paving is authorised to be done. And if there be nothing expressed in this ordinance to the contrary, the presumption is, that the nuisance contemplated, is one endangering the health of the immediate district in which it exists, and that-the sole object of the paving provided for, is the benefit of that particular district. Is there then any thing in the language of the ordinance to sustain the second position ? Is there any expression pointing to the preservation of the general health of the city, or to the general, and not a local benefit, as the motive for authorising the paving provided for? This case has been argued, as if the language of the ordinance was, “ which will endanger the health of the city.” But whatever might be the effect of such words if used, that is not the language of the ordinance; the commissioners in their warrants say that they conceive the streets directed to be paved, “to be in a state of nuisance, which might endanger the, health of the city.” And it is probable that, the language of the war — 495 — rants and of the ordinance, may have been confounded by the counsel. The words of the ordinance are, “ that if the commissioners of health shall at any time report in writing to the city commissioners that a nuisance exists in any street, lane or alley in the city of Baltimore, which will endanger the health thereof,” &c. Not in terms the health of the city, but thereof; and the question is, whether the word thereof must he held to relate to the city of Baltimore, or may refer to the street, lane or alley in which a nuisance may be found to exist. The power given by the charter under which this ordinance was passed, is, “to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, or for sinking wells or erecting pumps which may appear for the benefit of such particular part or district.” Now it has never been pretended, that the word therein in that clause related to the city, and meant for paving the streets, lanes or alleys, in the city. But ifhas always been considered, (and properly,) that it related to the particular part or district of the city to be taxed, and meant for paving the streets, lanes or alleys in such particular part or district. And the only question raise'd on that clause of the charter, in the Mayor, &c. vs. Moore & Johnson was, whether the latter part of it, “which may appear for the benefit of such particular part or district,” related to the sinking of wells and erecting pumps, or extended also to the paving the streets, &c. So here we think that the word thereof in the ordinance, does not relate to the city of Baltimore, so as to make it mean a nuisance which will endanger the health of the city of Baltimore: But that it relates to any street, lane or alley, 8fc., and means a nuisance that will endanger the health of sueh street, fyc. The words in the city of Baltimore being only used as descriptive of where the street, &c. lies. And that there is nothing appearing upon the face of the ordinance, to show that the general benefit of the city, is the object of the paving provided for, and not the benefit of the particular district to be taxed. This construction, brings the ordinance clearly within the power conferred by the charter, and although it is true, that a corporation must act within the limits of its delegated authori — 496 — ty, and cannot go beyond it, yet it ought not by construction, to be made to mean what is not clearly expressed; but when an ordinance will admit of two constructions, it should receive, that which is consistent with the power given, and not that which is in violation of it. The other ground relied upon by the defendant, is, that conceding the ordinance to be justified by the charter; yet the power given by it, has not been well executed, and two objections are raised ; first, that by the'ordinance, a report in writing-is required of the existence of a nuisance, &c. by the commissioners of health, to the commissioners of the city, which does not appear to have been made. Second, that the ordinance requires the nuisance to be of such a character, as will, in the opinion of the commissioners, endanger the health, &c. and that the commissioners have not so stated. 1 There is nothing in the first of .these ■ objections. The ordinance of the 22d of March, 1807, uniting the powers and duties of the city commissioners and commissioners of health, provides for the appointment of four persons to be city commissioners and commissioners of health, with all the powers and duties united in them, of the commissioners of health and city commissioners, and surely the 'formality of a written report by them to themselves was necessarily dispensed with. Besides there would be an inconsistency between the two ordinances, the one uniting the two bodies into one, and the oijher requiring the one to make a report to .the other, when, no such separate bodies existed, and the ordinance of the 22d of Mnrch, 1807, expressly repeals all such parts of the ordinance of. the 9th of March, 1807, as are inconsistent with any thing contained in it. An entry in the books of the commissioners of their decision is not required, and the certificates in their warrants of the existence of the nuisances and of their characters, would have been sufficient, if in other respects the ordinance- was complied with. But the ordinance has not been complied with; the warrants of the commissioners should, to gratify the ordinance, have contained statements of the existence of nuisances in the respective streets specified, whieh would in .their opinions endanger the — 497 — health thereof, and not that they might do so. A positive and decided opinion is required, and not the expression of a doubt, as to the dangerous character of the nuisance to be removed. And it is evident from the terms used by the commissioners, that they had formed no decided opinion on the subject. They say in each warrant, that they conceive the street mentioned, to be in a state of nuisance which might endanger the health of the city, apart from the danger they speak of to the health of the city, instead of the health oí the particular street, which is of itself a departure from the provision of the ordinance; the opinion they express, is hot such as the ordinance requires. The nuisance authorised to be removed, is required to be such, as in the opinion of the commissioners will be dangerous, and not such as may by possibility be dangerous; and the second objection is we think well taken. The second exception was properly abandoned at the argument. The ordinance requiring the evidence of the existence of a nuisance, and of its dangerous character and tendéney, to be in writing, the plaintiff was not competent to prove it by oral testimony at the bar. The action for money paid, laid out and expended, must be founded upon a contract express or implied, and it is a settled rule, that no person can by a voluntary payment of the debt of another, without his authority, make himself a creditor of the person whose debt is thus paid; but if one is compelled, or is in a situation to be compelled to pay the debt of another, as in the case of a surety, and does pay it, the law implies a promise on the part of him for whom the money is paid, on which an action may be sustained, for in such case, it is not a voluntary but a compulsory payment. In this case there was no debt due by the defendants’ intestate, and the payment made by the plaintiffs was on account of a contract entered into between the commissioners and the man who did the paving. But’if there had been a debt due by the defendants’ intestate to the workman who did the paving, which the plaintiffs were not compelled to pay, a voluntary payment — 498 — by- the plaintiffs without the authority or request of the defendants’ intestate could not raise an assumpsit against him ; and there is no evidence of any such authority or request. Or if -the defendants’ intestate was indebted to the plaintiffs on account of the taxes 'imposed, that liability would not . sustain a count for money paid, laid out and expended, which is the fifth count in the declaration in this case. And we can perceive no ground on which the construction prayed for to the jury, that the plaintiffs were entitled to recover on the sixth count for work and labor done, &c. could have been properly given. The defendants’ intestate was under no legal obligation imposed by the ordinance, to pay for the paving/done; and the work was not done at his instance, but by the plaintiffs, under and in pursuance of one of their own ordinances,- and in the supposed exercise of their corporate powers. We concur therefore in opinion with the court below on all the bills of exceptions. JUD&MENT AFFIRMED. Note. The doctrine that no person can by a voluntary payment of the debt of another, without his authority malte, himself a creditor of the person whose debt is thus paid, has been qualified by the Jlet of 1829, chcip. 51, which enacts “that any assignee ¡pr assignees, bona fide entitled to any judgment, bond, specialty or other chose in action for the payment of money by assignment in writing, signed by the person or persons authorised to make the same, may by virtue of such assignment, súe and maintain an action or actions, execution or executions, in any court of law or equity in this State, as the case may require, in his, her, or their names or names against the obligor or obligors, debtor or debtors, therein named, saving and reserving to the defendant or defendants, all such legal or equitable defence as might or could have been had or maintained against the assignor or assignors at the time, andbefofejnotice of the assignment, in the same manner and to the same extent as if no such assignment had been made.” - Kefs.