Mayor of Baltimore v. Johnson

Miller, J., delivered the opinion of the Court. There is at least one fatal objection to the validity of the tax, the collection of which was restrained by the injunction granted in this case, and that is that the City Commissioner advertised for proposals to do the work in one newspaper only, when the ordinance required that he should advertise in three. The work was done under a special ordinance passed in conformity with the Act of 1814, ch. 218, and approved on the 30th of April, 1880. This ordinance authorizes and directs the City Commissioner “to have all that part of Covington street from its present paved terminus at or near Warren street, to Cross street, graded, paved and kerbed, in pursuance of the Act of Assembly, chapter 218, of 2d of April, 1814, and according to the provisions of ordinance Ho. 44 of the 4th of June, 1814, providing for the grading, gravelling, shelling, kerbing and paving of streets, lanes and alleys in the City of Baltimore so far as the same may be applicable.” How one of the provisions of this general ordinance Ho. 44 thus undoubtedly applicable, is that in the sixth section, which declares that the City Commissioner, after he has determined upon doing the work, “ shall give ten days notice in three news [228] papers that proposals will he received for doing the same,” and then provides that “the said proposals shall be opened in the Mayor’s office and the contract shall be awarded to the lowest responsible bidder.” Nothing can be plainer than that advertising in one newspaper only, is not a substantial compliance with this requirement. It is also obvious that this is not a mere formal or immaterial provision, but a substantial and important one, and in fact, one in which the property owners who are required to pay for the work are deeply interested. The contract to he thus awarded to the lowest bidder determines the cost of the work and therefore the amount of the tax to he imposed, for it is only after the contract has been thus awarded whereby the cost can be ascertained, that the Commissioner is required by the eighth section of the same ordinance to impose a tax upon the owners of adjacent property “equal in amount to the whole expense of the work.” The object of advertising for these proposals is to attract bidders and induce competition in order that the work may be done at the lowest attainable price, and this is all in the interest and for the protection of the tax-payers. No appeal is allowed to the property owners from any of the proceedings of the Commissioner under this ordinance, and his only redress against the imposition of an unlawful tax is by resort to a Court of equity; and while that Court ought not to grant relief by declaring the tax illegal and void where there has been only slight or immaterial omissions or deviations from the requirements of the ordinance, it must so' relieve, where there has been, as in this case, a substantial departure from a substantial provision introduced for his benefit and protection. Upon this ground alone the decree appealed from which perpetuates the injunction must be affirmed, and that renders it unnecessary to determine in this case any of the other questions argued by counsel. (Decided 29th May, 1884.) Decree affirmed.