is known as "Estimates for New Improve- spect, and that the appropriation of $500,000 ments." is not void because of the fact that it was not based upon the estimate of the paving commission. The statute in this case provides that "appropriations for the cost of said work shall be annually included by the board of estimates, in the usual way, in the ordinance of estimates." Thus it is to the board of estimates that the power is given to include in the ordinance of estimates the appropriations for the cost of the work of the paving commission. While it is true that the ordinance of estimates for the year 1911, in which was included the said appropriation of $500,000, was passed before the passage of Ordinance No. 661, and before its ratification by the people, and before the appointment of the members of the paving commission, nevertheless the said appropriation was contingent upon the passage of the ordinance and its approval by the legal voters of Baltimore city. Had the voters of the city, refused to approve the ordinance, the appropriation would have fallen with it; but, as the ordinance was approved by a majority of such voters, the appropriation became effective, and the commission, when appointed, availed themselves of such appropriation, and, as the bill alleges, incurred considerable expense in securing accurate information concerning paving methods and paving conditions, accumulated data, made estimates and surveys, and adopted a general and comprehensive plan for the paving of the streets of the city of Baltimore, and went so far as to contract for the paving of certain streets in the city, named in the bill of complaint, and later, by resolution of December 28th, ratified and approved the action of the board of estimates in including such appropriation in the ordinance of estimates for the year 1911. Had no appropriation been made out of this fund, known as the "Paving Loan Fund" for the year 1911, when it was so made by the board of estimates, then it could not have been made earlier than the 1st day of October, 1911; and thus until such time the paving commission would have been delayed in the prosecution of their work, even to the extent of incurring cost in obtaining data or information as to the cost of the work to be done by them. From a full consideration of the entire statute, its nature and object, the consequences of delay resulting from a different construction, and the fact that no rights are impaired by such construction, we do not think it was the intention of the Legislature in enacting this statute that the validity of this appropriation should be made dependent upon the compliance with that provision of the statute that the appropriation be "based upon the estimate of said commission." Thus we think the statute was [4] The second objection goes to the sufficiency of the ordinance; the plaintiff contending that it does not determine the times and the amounts of the issue of said stock, and does not provide and determine the rate of interest which such stock should bear, and therefore insists that the ordinance delegates to the commissioners of finance the determination of matters and questions which, under the act, the mayor and city council of Baltimore should themselves have determined by ordinance, and which, under the statute, could not be delegated to the finance commission. Undoubtedly the broad and unrestricted delegation of a power or discretion, requiring the judgment and determination of those intrusted with such power and discretion by the Legislature, is unlawful. Baltimore. V. Stewart, 92 Md. 550, 48 Atl. 165. This principle of law seems well established; but the difficulty arises in its application. In each case it must first be determined whether there be a delegation of power and discretion, and, if so, whether or not it violates this rule. The act authorized the mayor and city council of Baltimore, "when portions of such work are from time to time being done to issue the stock of the city to an amount not exceeding $5,000,000 and in such amounts as the mayor and city council of Baltimore shall by ordinance prescribe; provides, however, not more than $1,000,000 of said stock shall be issued in any one year, and to be payable at such times and to bear such rate or rates of interest as the mayor and city council of Baltimore shall by ordinance prescribe." The statute then provides that said amounts of stock shall be sold and issued by the commissioners of finance of the city of Baltimore at the best prices obtainable, in their judgment, therefor. Thus it is by the statute itself that the power is vested in the commissioners of finance to sell and issue the stock at the best price obtainable. The right to sell and issue such stock is expressly derived from the authority found in the act itself, and is not dependent upon the ordinance. It is true the statute says, "said stock to be issued from time to time, and in such amounts as the mayor and city council of Baltimore shall by ordinance prescribe," and yet in the ordinance the specific time at which the stock shall be issued and the amounts thereof are not stated; nevertheless it provides that said stock shall be sold from time to time, and at such times as shall be requisite, such times being, as provided by work are being done," and when the money is required to meet the cost and expense of such work; and the amount of stock to be issued at such times is the amount of stock required to meet such payments. Of course, such issuance of stock by the finance commission is limited to $1,000,000 a year, as provided by the statute. The times when and the amounts of stock to be issued under the ordinance do not vary from those prescribed by the statute; but the provisions of the ordinance are in harmony with the statute. The power or discretion delegated to the commissioners of finance to issue the stock from time to time, and at such times as shall be requisite, is not, we think, an unlawful delegation of power or discretion, when by the statute it is to be issued and sold by them when and as portions of the work are being done, and, as we may add, when the money is required with which to pay for such work done by and upon the authority of the paving commission. As said above, the statute also provides that the stock shall bear “such rate or rates of interest as the mayor and city council shall by ordinance prescribe." The ordinance provides that said stock shall be issued in sums of not less than $100 each, redeemable on the 1st day of October, 1951, and bearing interest at the rate of not more than 4 per centum per annum. While it does not fix the rate of interest to be paid upon the stock, it limits such rate to 4 per centum per annum; and the finance commission, in whom is vested the right to sell said stock at the best prices obtainable in their judgment in establishing the rate of interest, is restricted to a rate not in excess of 4 per centum. We do not think the delegation of this restricted discretion here given to the finance commission in fixing a lower rate of interest is unlawful, and especially so when considered in connection with the power vested in them by the act to sell said stock, and at the best prices obtainable, in their judgment. It may also be said that the delegation of the power and discretion here complained of will be found in the burnt district loan, the annex paving loan, the sewerage loan, and other similar ordinance. [5] As to the third objection, we find nothing in the statute that prohibits the expenditure by the paving commission of more than $1,000,000 annually. The statute forbids the issuance of more than $1,000,000 of stock annually; but it is silent as to the amount that may be expended each year. From what we have said, we think the court committed no error in passing the order appealed from. Order overruling demurrer and dismissing bill affirmed, as per curiam heretofore filed, with costs to the appellee. (118 Md. 114) BASSETT v. MAYOR AND CITY COUN CIL OF OCEAN CITY. (Court of Appeals of Maryland. April 11, 1912.) 1. TRIAL (§ 174*)-DIRECTED VERDICT-SUFFICIENCY OF REQUEST. A request "to rule that under the pleadings and evidence in this case plaintiff is not entitled to recover" was properly rejected as being too general and indefinite. Dig. § 398; Dec. Dig. § 174.*] [Ed. Note.-For other cases, see Trial, Cent. 2. MUNICIPAL CORPORATIONS (§ 586*)-SIDE WALKS-CONSTRUCTION BY CITIES - ACTION FOR REIMBURSEMENT-PLEADING. Under Ocean City Charter (Act 1904, c. 658, § Sb), which authorizes the city to construct a sidewalk after an abutting owner's failure to do so on notice, a declaration by a city for reimbursement for the cost of the sidewalk is insufficient, where it fails to allege that the owner failed to make the improvement after the required notice. [Ed. Note.-For other cases, see Municipal. Corporations, Cent. Dig. §§ 1304-1306; Dec. Dig. § 586.*] 3. APPEAL AND ERROR (§ 1040*)-HARMLESS ERROR-OVERRULING DEMURRER. Defendant was not prejudiced by erroneous overruling of a demurrer to a special count, where no evidence was admitted under that count that was not admissible under the other counts of the declaration. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*] 4. MUNICIPAL CORPORATIONS (§ 413*)-SIDEWALKS - COST APPORTIONMENT OF BENEFITS. The cost of a street improvement, such as a sidewalk, may be assessed, in whole or in part, upon the abutting property. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1014-1016, 1019, 1020; Dec. Dig. § 413.*] 5. CONSTITUTIONAL LAW (§ 290*)-MUNICIPAL CORPORATIONS (§ 407*) - DUE PROCESS OF LAW-MUNICIPAL IMPROVEMENTS. Assessment against an abutting owner of the cost of a sidewalk constructed along a street, as provided for by Ocean City Charter (Acts 1904, c. 658, § 8b), does not constitute a taking of the abutter's property without due process of law. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 871-875; Dec. Dig. § 1003, 1004; Dec. Dig. § 407.*] 290:* Municipal Corporations, Cent. Dig. $8 Appeal from Circuit Court, Worcester County; Robley D. Jones. Judge. Action by Mayor and City Council of Ocean City against Mollie Bassett. ment for plaintiff, and defendant appeals. Affirmed. Judg Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. Wm. F. Johnson and Frederick J. Singley, for appellant. John W. Staton and Robert P. Graham, for appellee. THOMAS, J. By the act of 1904, c. 658. several new sections were added to the charter of Ocean City, giving the mayor and city council authority to provide for the im- | hearing and considering all objections, Orprovement of the streets, sidewalks, etc. Section 8b, with which we are more particularly concerned in this case, provides as follows: "The mayor and city council of Ocean City be and they are hereby authorized and empowered to require and enforce the grading, regrading, improvement, maintenance and repairs of the public streets, gutters, sidewalks, alleys and ways of the town by the placing of pavements, curbing, shells, dirt, board walks or other improvements of such material and kind as in the discretion of the mayor and city council may seem proper, at the expense of the owners of the abutting property, and in case of a failure of such owner or owners of such property to make such improvements or repairs in the mauner and of such materials as directed by the mayor and city council within sixty days after written notice thereof by personal service on such owner or owners, or by mailing such notice to the last known post office address of such owner or owners, then the said mayor and city council have the power and authority to proceed to make such improvements or repairs and assess the costs thereof to the owner or owners of the abutting property in proportion to the frontage of such property, such assessment to be collected as municipal taxes are collected by law in said city; and the said mayor and city council are hereby given full power and authority to appoint, employ and compensate all officers, agents, servants or employés that may, in the exercise of their discretion, seem necessary or advisable to carry into effect the provisions of this and the preceding or any other section of the charter of Ocean City." In pursuance of the authority conferred by this section, the mayor and city council, on the 10th of December, 1908, passed Ordinance No. 102, requiring the owners of property abutting on certain streets and avenues of the city to construct pavements and board walks, as directed by the ordinance, according to specifications adopted by the mayor and city council. After the expiration of the 60 days mentioned in section 8b of the act, Ordinance No. 302 was introduced for the construction by the mayor and city council, at the expense of the owners of the abutting property, of such of the pavements and board walks referred to in Ordinance 102 as had not been constructed under that Ordinance; and on the same day another ordinance was passed, directing notice to be given to all persons concerned that Ordinance No. 302 had been introduced, and that the mayor and city council would meet at a certain time and place for the purpose of hearing any objections to it and considering its passage. In accordance with said notice, the mayor and city council met at dinance No. 302 was passed. It provided that after the completion of the pavements and board walks therein referred to all persons interested should be given an opportunity to object and to be heard before the cost of the same was assessed upon their property. Accordingly, after the construction by the mayor and city council of the pavements and board walks provided for in Ordinance No. 302, notice was given to those concerned that the mayor and city council would meet on a certain day to consider the assessment of the cost of such improvements upon the abutting property, and to hear any objections thereto; and, after such objections were heard and considered, the mayor and city council passed an ordinance assessing the costs of the pavements and board walks upon the abutting properties according to their frontage on the streets and avenues referred to in Ordinance No. 302, and requiring the assessments to be collected from the owners of said properties. The appellant was the owner of a property fronting 50 feet on the west side of Atlantic avenue, which avenue is between the properties west of it and the Atlantic Ocean. In accordance with the provisions of Ordinance No. 302, the mayor and city council constructed a board walk 24 feet wide on the west side of said avenue, and the amount of the assessment therefor upon the property of the appellant was $185. The appellant having refused to pay this amount, suit was brought to recover it in the circuit court for Worcester county by the mayor and city council, and the appeal in this case is from a judgment in its favor. [1] At the conclusion of the case, the defendant asked "the court to rule that under the pleadings and evidence in this case the plaintiff is not entitled to recover," and the only exception in the case is to the refusal of the court to grant that prayer. The prayer was entirely too general and indefinite, and was properly rejected. Dorsey v. Harris. 22 Md. 85; W. M. R. R. Co. v. Carter, 59 Md. 306; Pearre v. Smith, 110 Md. 531, 73 Atl. 141. [2, 3] The narr. contained the common counts and a special count. The defendant filed the general issue plea and the plea of payment to the common counts, and demurred to the special count of the declaration, which demurrer was overruled, and this appeal brings up for review the ruling of the court below on the demurrer. The special count of the declaration sets out the provisions of section 8b of the act of 1904, and alleges that the defendant was the owner of the property on Atlantic avenue; that the mayor and city council of Ocean City passed the ordinance requiring the defendant and others to make certain improvements, and that she was duly noti inure to the special benefit and advantage of the adjacent owner upon whose property the assessment is laid." It is said, in Cooley on Taxation (3d Ed.) vol. 2, p. 1208: "It has been repeatedly decided that the legislative act of assigning districts for special taxation on the basis of benefits cannot be attached on the ground of error in judgment regarding the special benefits, and defeated by satisfying a court that no special and peculiar benefits are received. If the legislation has fixed the district, and laid the tax for the reason that, in the opinion of the legislative body, such district is peculiarly benefited, its action must in general be deemed conclusive." See, also, the cases of Baltimore v. Ulman, 79 Md. 469, 30 Atl. 43; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763; Parsons v. District of Columbia, 170 U. S. 45, 18 Sup. Ct. 521, 42 L. Ed. 943; French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879. There may, of course, be exceptions to the general rule as stated by Judge Cooley; but where, as in this case, the improvement is one that may specially benefit the property upon which the assessments are made, the legislative determination of the question of benefits should be regarded as conclusive. See cases collected in note 8 on pages 1158–1160, 28 L. R. A. (N. S.); Cooley on Tax. 1174. cil made the improvements referred to in | purpose, and that the improvement would said ordinance and assessed the cost of the same upon the property of the defendant, in proportion to the frontage of said property, to the amount of $185, which amount the defendant refused to pay. But this count omits the necessary allegation that the defendant failed to make the improvements provided for by the ordinance within 60 days after the notice required by section 8b of the act. Until there had been such a failure on the part of the defendant, the mayor and city council was not authorized by section 8b to make the improvements, and to assess the cost thereof upon the abutting properties. We think this count of the declaration was defective, and that the learned court below erred in overruling the demurrer; but the judgment in the case should not be reversed because of such error. It has been repeatedly held in this state that, where an act authorizes a tax, it may he recovered in an action of assumpsit. Mayor, etc., of Baltimore v. Howard, 6 Har. & J. 383; Dashiell v. Baltimore, 45 Md. 615; Appeal Tax Court v. W. M. R. R. Co., 50 Md. 274. All of the evidence necessary in order to establish the plaintiff's right to recover was admissible under the common counts, and no evidence in the case was admitted under the special count that was not admissible under the other counts of the declaration; and the defendant was not, therefore, injured by the overruling of her demurrer. [4] It is earnestly contended on behalf of the appellant that the board walk on the west side of Atlantic avenue was constructed for the benefit of the public, generally, and that the cost of it cannot be assessed upon the property fronting thereon. The answer to this contention is that there is nothing in the section of the act referred to to show that the improvement was made without regard to special benefits to the property fronting on said avenue. Burns v. Baltimore, 48 Md. 198; Baltimore v. Johns Hopkins Hospital, 56 Md. 1. It is the settled law in this state that the cost of the improvement of a street may be assessed, in whole or in part, upon the property binding on the street. In the case of Hyattsville v. Smith, 105 Md. 318, 66 Atl. 44, the court said that there were two propositions firmly fixed in the law of this state, namely: "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 on such street, or part thereof, and that, in the absence of any declaration of intent to the contrary, the presumption would be that the Legislature considered that the purpose for which the In Cooley's Const. Lim. (6th Ed.), the learned author, referring to the case of People v. Mayor, etc., of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266, says, on page 662: "The court in that case concede that taxation cannot be laid without apportionment, but hold that the basis of apportionment in these cases is left by the Constitution with the Legislature." After speaking of the several rules by which taxes may be apportioned, the same author says, on page 624: "On the other hand, and on the like reasoning, it has been held equally competent to make the street a taxing district, and assess the expense of the improvement upon the lots in proportion to the frontage. Here, also, is apportionment by a rule which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute equality. But if, in the opinion of the Legislature, it is the proper rule to apply to any particular case, the courts must enforce it." In the case of Baltimore City v. Stewart, 92 Md. 535, 48 Atl. 165, this court said that the front foot rule of apportionment of the cost of improvements had, been recognized and approved by this court in a number of cases. Note 9, 28 L. R. A. (N. S.) 1160. [5] The only remaining objection of the appellant is that the assessment amounts to taking her property without "due process of law." In the case of Ulman v. Balti 11 L. R. A. 224, this court, reversing its | judicial in such a sense that the property previous decisions, held that an assessment owner is entitled to a hearing, or to notice under an ordinance which failed to provide or an opportunity to be heard." The court for notice to the owners of property upon said further that this distinction was clearly which the cost of street improvements was brought out in the case of Stuart v. Palmer, assessed was not valid, and could not be 74 N. Y. 183, 30 Am. Rep. 289, which is the enforced. That decision was based upon the case cited and relied on in Ulman v. Balticase of Spencer v. Merchant, supra, and the more, 72 Md. 587, 20 Atl. 141, 21 Atl. 709, case of Stuart v. Palmer, 74 N. Y. 183, 30 11 L. R. A. 224. Am. Rep. 289. In all three of those cases, the apportionment of the costs of improvement was made by a municipal corporation, or by persons upon whom the authority had been conferred by the Legislature. In the later cases of McLaughlin v. Miller, 124 N. Y. 510, 26 N. E. 1104, Parsons v. District of Columbia, supra, and French v. Barber Asphalt Paving Co., supra, it is held that there is a distinction between an apportionment made by the Legislature and an assessment made by a municipal corporation, or by those to whom the Legislature has delegated the power. In the case of Parsons v. District of Columbia, supra, where the act of Congress provided that the assessments for laying water mains in the District of Columbia should be at the rate of $1.25 per linear front foot against all land abutting upon the street in which the mains were laid, the court held that the act was conclusive of the necessity of the work and of its benefit as against the abutting property, and said: "There is a wide difference between a tax or assessment prescribed by a legislative body, having full authority over the subject, and one imposed by a municipal corporation, acting under a limited and delegated authority. And the difference is still wider between a legislative act making an assessment and the action of mere functionaries, whose authority is derived from municipal ordinance. In the case of French v. Barber Asphalt Paving Co., supra, the cost of the improvement was apportioned according to the charter of Kansas City, which provided that the total cost of the work should be apportioned and charged against the lands abutting on the pavement according to the frontage of the several lots or parcels of land; and the Supreme Court of the United States, after a careful review of the earlier cases, held that the rule of apportionment among the parcels of land benefited "rests within the discretion of the Legislature, and may be directed to be in proportion to the position, the frontage, the area, or the market value of the lands, or in proportion to the benefits as estimated by commissioners." According to the rule established by these recent decisions, the Legislature may apportion the cost of the improvement of a street or avenue among the owners of the abutting property according to the front foot rule; and this rule is in accord with the decisions in this state prior to the case of Ulman v. Baltimore, supra, which, as applied to an apportionment by the Legislature, have not been overruled. In the case of Baltimore v. Johns Hopkins Hospital, supra, Judge Miller said: "It is conceded, on all sides, to be the province of the Legislature to prescribe, in such cases, how the apportionment shall be made, and this may be either by the front foot, by the * area of the fronting lots, or by their value, By this legislation a comprehensive system, including or excluding the buildings upon regulating the supply of water and the erec-them. Occasional hardships may result from tion and maintenance of reservoirs and of water mains, was established, and of this legislation every property owner in the District must be presumed to have notice. And accordingly, when, by the act of August 11, 1894, Congress enacted that thereafter assessments levied for laying water mains in the District of Columbia should be at the rate of $1.25 per linear front foot against all lots or land abutting upon the street, road, or alley in which a water main shall be laid, such an act must be deemed conclusive alike of the question of the necessity of the work and of the benefits as against abutting property. To open such questions for review by the courts, on the petition of any or every property holder, would create endless confusion. Where the Legislature has submitted these questions for inquiry to a commission, or to official persons to be appointed under municipal ordinances or regu * the adoption of either mode; but the authorities are united in the conclusion that either may lawfully be made the basis of apportionment." In We have examined the cases cited by the appellant, but do not think they are sufficient to justify a conclusion contrary to the decisions to which we have referred. the case of Hammett v. Philadelphia, 65 Pa. 146, 3 Am. Rep. 615, the learned court held that, as the street was already paved, etc., under the statute the cost of the improvements in that case could not be assessed upon the adjacent property. In the light of the authorities cited the provision of section 8b of the act of 1904, providing for the construction of pavements, board walks, etc., by the mayor and city council of Ocean City, the assessment in this case is not open to the objections urged by the appellant. |