Mayor of Baltimore v. Grand Lodge of Maryland of the Independent Order of Odd Fellows

Millhk, J., delivered the opinion of the Court. Whilst power is conferred on the Mayor and City Council of Baltimore to provide for laying out, opening, extending, widening, straightening, or closing up in whole or in part, any street, lane or alley within the limits of that city, the Legislature has seen fit to provide that “before the Mayor and City Council shall pass any Ordinance,” in exercise of tins power, “at least sixty days notice, shall be given of any application for the passage of such Ordinance, in at least two of the daily newspapers in the said city.” 2 Code, Art. 4, sec. 838. We are unable to place upon this language, any other construction than that it makes such notice a condition precedent to the valid exercise of the power in any given case, and renders the Ordinance inoperative and void unless it substantially conforms to the notice. If substantial conformity be not required we cannot see for what purpose the provision was adopted, or what can be accomplished by it. If an Ordinance which differs in substance from the notice is valid, it nmst be equally valid if passed without any notice at all, and the law in this respect must be regarded as directory merely, and its observance left to the absolute and uncontrolled discretion of the city authorities. But in our judgment that was not the design of the Legislature in making this provision. In delegating this power they have declared that before it shall be exercised by those to whom it is delegated, the notice shall be given. That is the language of command, embodying a mandate and not a direction, prescribing a limitation and not recommending the exercise of discretion, and the Courts cannot sanction or authorize a dispensation from its observance. The purpose sought to be attained by it undoubtedly was to give to property holders, whose interests were to be affected by assessments of benefits and damages, notice of what was proposed to be done, and thus secure to them the opportunity to promote or resist the contemplated improvement — 444 — by the appropriate expression of their views for or against it before the City Council. The first question then to be considered is, does the Ordinance before us conform in substance to the notice? The notice is in these terms : “ Notice is hereby given that application will he made to the Mayor and City Council of Baltimore, to open and condemn Lexingtion street from Holliday to Douglas street.” The Ordinance is entitled “an Ordinance to condemn and open Lexington street eastward from Gay street so as to make it intersect the present western terminus of Douglas street, and to change the name of Douglas street to Lexington street,” and its first section directs the Street Commissioners “to condemn and open Lexington street eastwardly from Gay street, so as to make it intersect the present western terminus of Douglas street, as laid down and delineated on a plat of said opening recently made by' ’ the City Surveyor, as follows, and then the limits and hounds of this opening and extension are described, and in another section the name of Douglas street is changed to Lexington street. The difference between what the notice says was contemplated and would he applied for, and what the Ordinance actually authorizes and directs to he done is ohvibus and material. An essential, if not tl^most essential, feature of the notice is that the contemplated opening and extension was to he from Holliday street, that is to say, it was to commence or terminate at that street, so as to make an opening and extension from that locality, and to continue Lexington street from that point to Douglas street, but the Ordinance does no such thing. It provides that the condemnation and opening shall commence at Gay street, and extend to Douglas street, and nothing more. Between Gay and Holliday streets no condemnation or opening whatever could he made under this Ordinance. What the promoters of the improvement asked for in their petition or application, made in pursu — 445 — anee of the notice, was that there should be an opening from Holliday street, on which the new City Hall fronted, to Douglas street, so as to make a convenient, respectable, continuous and direct thoroughfare from that locality to the eastern section of the city, but this the Ordinance fails to accomplish. We are constrained to hold that an Ordinance which thus departs from a material and essential statement in the notice, is not in substantial conformity with it, and is therefore inoperative and void. Counsel for the appellants have referred to the Methodist Church Case, 6 Gill, 400; Swann vs. Mayor and C. C. of Cumberland, 8 Gill, 154 ; Steuart’s Case, 7 Md., 500, and Bouldin’s Case, 23 Md., 328, which we have carefully examined, but find that in neither of them has anything been decided or said in conflict with the views above expressed, but on the contrary, so far as the question before us is incidentally noticed in them, and so far as they announce general principles, they seem to us to support, rather than contravene, the conclusion we have reached. The Ordinance being thus void, the next question is, had the appellee a right to invoke the aid of a Court of Equity to restrain by injunction the enforcement of it? As to this, we entertain no doubt. The appellee’s property had been assessed under this Ordinance for benefits to the amount of $2693.75, and the City Collector had given notice that unless this amount was paid by a given day, the necessary steps would be taken to sell the property to enforce its payment. That a Court of Equity has jurisdiction at the suit of a property holder, whose property is thus threatened with sale, to restrain the city authorities from making the same, where the proceedings under which it was about to be made are wholly null and void, was settled in Holland’s Case, 11 Md., 186, and jurisdiction in equity in such cases has been recognized and conceded in every subsequent decision, in which the question has arisen" or been mooted. — 446 — The remaining objection made by the appellants, is that the appellee has lost this right to proceed in equity by acquiescence and laches. The Ordinance was passed on the 30th of September, 1872, and the bill in this case which ■was filed on the 6th of July, 1875, avers that the Street Commissioners proceeded under the Ordinance, and assessed the complainant’s property for benefits, and rendered it a hill therefor, and that on the 2bth of June, 1875, the City Collector caused a notice to be published,, notifying all persons in arrears for benefits assessed for the opening of Lexington street, that payment must be made on or before the 30th day of that month, otherwise the property of delinquents will be placed in the hands of the City Surveyor to plat, preparatory to advertising for sale. The answer of the Mayor and City Council avers that in due course the final return of all their proceedings was' ma,de by the Street Commissioners to the City Register, on the 23rd of June, 1874, and .due notice given to the complainant thereof, and of the assessment for benefits made on its property, and of its right to appeal therefrom t5 the City Court, and that complainant failed to appeal therefrom, and at the time of filing its bill, the time within which such an appeal might have been taken, had long before expired. This is all the information which the record affords us as to what had been done in execution of this Ordinance, and upon the subject of acquiescence and laches. Unless, therefore, this Court holds that parties thus situated, must seek their remedy in equity against the enforcement of a void Ordinance within the time limited for an appeal to the City Court from assessments made thereunder, or adopt by analogy that period as a limitation to such suits in equity, there appears to us no good reason why in this case the appellee should be deprived of its i-emedy upon the ground of acquiescence and laches. But the complainant filed its bill promptly, after.notice had been given that its property would be seized and sold to enforce payment of — 447 — this assessment. Before that time, what standing had the complainant in a Court of equity ? The very foundation of jurisdiction in equity in such cases, is, that the property of the citizen is about to be taken for taxes or assessments, levied under proceedings which are not merely irregular and defective, but wholly null and void. To a bill filed before the property was thus about to be taken, charging the proceedings to be void, the answer to the complainant would be, this affords you no ground of relief in equity, inasmuch as no harm has yet been done to you or your property, and it will be time enough to ask for an injunction when your property is sought to be interfered with or taken, and especially could this answer be well made when it is remembered that it was all the while within the power of the City authorities to repeal the Ordinance and abandon the improvement. In all the cases in 'which this remedy has been sought, the parties have awaited the attempt, or the threat to seize and sell their property before filing their bills, and in none of them where the proceedings have been promptly instituted after that time, has the defence of laches and acquiescence been sustained. Thus in Holland’s Case, (the original record in which we have examined,) the bill was not filed until after the paving had been completed, and the complainant’s lot had been advertised for sale. The answer in that case, distinctly set up the defence of laches as a bar to the remedy in equity, and averred the complainant had notice of the application and the determination of the City Commissioner to have the paving done, and before any expense had been incurred in the completion of the subsequently executed contract. This defence of laches and acquiescence was also pressed in argument by the appellee’s counsel, and yet this Court sustained the bill, and reversed the order which had dissolved the injunction. So in Porter’s Case, 18 Md., 284, the bill was not filed until after the property was advertised for sale, and the grading had been completed at a cost and — 448 — expenditure of over $100,000. The complainant and others who resisted the payment of the tax, instituted no proceedings to stop the work during its progress, nor made any objection thereto until after it was finished, and this Court again sustained the jurisdiction in equity, and continued the injunction upon the ground that the proceedings under which the tax was levied, had been instituted without' lawful authority. In view of these decisions, and others that might be cited to the same effect, we cannot sustain the defence in this case. The authorities cited by the appellants’ counsel upon this question, present very different circumstances, and we find nothing in them to justify their application to the present case’. To adopt the analogy contended for would, as it appears to us, work a practical abolition of the remedy by injunction in such cases. For these reasohs we find ourselves compelled to affirm the order granting the injunction. (Decided 10th March, 1876.) Order affirmed, and cause remanded.