Bennett v. Baltimore City , 106 Md. 484 ( 1907 )

This is an appeal from a decree of the Circuit Court of Baltimore City sustaining a demurrer to and dismissing a bill filed by the appellants as taxpayers and owners of lots abutting on Carroll street in that city to restrain the city from performing a contract which it had made with Patrick Reddington for paving the street.

The substantial ground of the bill was that the contract with Reddington was void because the advertisement for proposals for the paving to which it related had not been published in conformity with the provisions of sec. 14 of the city charter. That section requires all proposals for bids for public work, to cost over $500, to be advertised in two or more daily newspapers published in Baltimore City. The proposals for bids for paving Carroll street involved an expenditure of over $500 and they were in fact advertised in one English and one German newspaper published in that city. The pivotal question, therefore, in the case, is whether the publication thus made gratified the requirements of the section in that respect.

The full text of section 14 is as follows:

"14. Hereafter in contracting for any public work or the purchase of any supplies or materials involving an expenditure of five hundred dollars or more for the city or by any of the city departments, sub-departments or municipal officers not embraced in a department, or special commissions or boards, unless otherwise provided for in this article, proposals for the same shall be first advertised for in two or more daily newspapers published in Baltimore City, for not less than ten nor more than twenty days, and the contract for doing said work or furnishing said supplies or materials shall be awarded by the board provided for in the next section of this article and in the mode and manner therein prescribed."

It is well settled as a general proposition in this country that in the absence of a direction to the contrary the publication of a notice required by law to be made must be in the English language and in a newspaper printed in that language. 21A. E. Encyc. Law, 308. This proposition has been definitely announced or relied upon by the Courts of last resort of many of the States and no direct decision to the contrary has been cited to us or come to our knowledge. City of Chicago v. McCoy,135 Ill. 344; Goebel v. Chamberlain, 99 Wis. 583; Schloenbach v. Hardin County, 53 Ohio St. 345; Cincinnati v. Bickett,26 Ohio St. 49; Schaale v. Wasey, 70 Mich. 414; Turner v.Hutchinson, 113 Mich. 245; Graham v. King, 50 Mo. 23; Roadof Upper Hanover, 44 Pa. St. 277.

These cases all treat the English language as the official or ordinary language of the country and hold that a mere direction in a statute that an advertisement be made in a given number of newspapers must be so construed as to require the use for that purpose of newspapers published in the English language. This proposition applies with especial force to a State like Maryland where from the earliest colonial times the English language has been employed in the official proceedings of all departments of the government.

If we turn now to the contents of the section of our law brought under review by the present appeal we find that they are positive in their terms and comprehensive in their scope and are plainly declared to be applicable to all advertisements of proposals for public work or materials except such as may be"otherwise provided for" in the Article of the Code of which section 14 forms a part. Turning to the other sections of the Article relating to the same or kindred subjects it appears that in some of them the other provision contemplated by section 14 is found and that they contain express authority to insert in a German newspaper the advertisements which they direct to be made.

Such a provision is found in section 43 relating to the publication of notice of the proposed sale of lands for the non-payment of taxes, and section 49 relating to notices by the City Collector of sale of goods and chattels distrained or levied on for non-payment of taxes.

Counsel for the city contended in argument before us that the presence in sections 43 and 49 of the expression "one of which shall be in the German language" in connection with the direction to publish notice in a given number of daily newspapers published in Baltimore City must be regarded as a legislative recognition of the fact that a daily newspaper published in the German language is included in and embraced by the term "daily newspaper published in Baltimore City." That claim is too broad. It is undoubtedly sound as applied to the construction of secs. 43 and 49 where the two expressions referred to are found in juxtaposition, but it is unsound as applied to the construction of sec. 14 in which no expression relating to a German newspaper is found. It is unsound as applied to sec. 14 for the further reason that the language there used recognized as excepted from its operation those cases which should be "otherwise providedfor" in other sections of the Article. Even without the exception contained in sec. 14 of cases otherwise provided for the three sections when considered side by side come within the operation of the proposition expressio unius exclusio alterius, and the absence from sec. 14 of the authority found in the other two sections to advertise in a German newspaper must be held to show that in the cases falling within the operation of section 14 a German newspaper could not be employed to publish the notices.

In Baltimore v. Johnson, 62 Md. 227-8, the bill was filed by owners of ground bounding on Covington street to restrain the city from enforcing the collection of a tax imposed for grading and paving that street upon the ground that the ordinance under which the work had been done required the advertisement for proposals to do the work to be published in three newspapers and the publication had in fact been made in but one paper. This Court held the objection to be fatal to the validity of the tax, saying in the opinion filed in the case: "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 be thus awarded to the lowest bidder, determines the cost of the work, and, therefore, the amount of the tax to be imposed, for it is only after the contract has been thus awarded, whereby the cost can be ascertained, that the commission 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 taxpayers."

The bill further alleges and the demurrer admits that the performance of the contract with Reddington will, if not prevented by injunction, require an appropriation and expenditure by the city, out of the taxpayers money, of five thousand dollars for the grading and paving of the street, and that the assessments made by the city for that purpose upon the appellants property abutting on the street to be paved are onerous and that in addition thereto they will as taxpayers have to bear their share of the proportion of the cost of the paving to be paid out of the general tax levy.

Nor is there any question as to the appellants right to relief by injunction. The right of property holders and taxpayers under similar circumstances to enjoin the performance by the public authorities of illegal contracts of this character has been so often upheld by us that it is only necessary to refer to some of the cases in which it has been done without further discussion on the subject. Among such cases are Holland v. Baltimore,11 Md. 197; Baltimore v. Porter, 18 Md. 301; Baltimore v.Grand Lodge, 44 Md. 445; Baltimore v. Gill, 31 Md. 394;Baltimore v. Johnson, supra; Baltimore v. Keyser,72 Md. 105; St. Mary's Industrial School v. Brown, 45 Md. 310.

The decree appealed from will be reversed and the case remanded for further proceedings in conformity with this opinion.

Decree reversed with costs and case remanded for furtherproceedings in conformity with this opinion.