Mayor of Baltimore v. Eschbach , 18 Md. 276 ( 1862 )

Cochran, J.,

delivered the opinion of this court.

The Legislature, by the Acts of 1797, chap. 54,1817, chap. 148, and 1835, chap. 390, conferred upon the Mayor and City Council of Baltimore full power and authority to pass all ordinances necessary to provide for the grading and paving of its Streets, and in execution of the power so conferred, they, by Rev. Ord. No. 15 of 1860, imposed upon the city commissioner the duties therein particularly specified and defined, in reference to such grading and paving.

Under this ordinance, the city commissioner, with the approbation of the mayor, determined- to grade and pave Hull street, from Fort Avenue t'o the Port Wardens Line, upon an application made by the owners of a majority of the front feet Of ground bounding theredn, and accordingly advertised the Work proposed for contract, although that street had never been formally condemned by the Mayor and City Council.- Proposals were made for the work by John Eschbach, upon the acceptance of which; he'entered into a'contract, approved by the mayor, with' the city commissioner, acting on behalf of the Mayor and’ City Council, to complete the work on the terms proposed-, in accordance with the'provisions of the ordinance. The commissioner then assessed the tax imposed by the ordinance for grading and paving, and delivered his warrants'for the collection of the same to the collector.- The tax was collected and paid over to Eschbach, with the exception of the sum of $4516, assessed- to certain owners of ground, who refused to pay the same,’because no application to grade and pave, sufficient to give the commissioner any authority to act in the premises, had been made by the owners of the ground bounding on the portion of the street to be graded and paved. Upon these material facts, Eschbach, assuming that the Mayor and City Council were bound by his contract with the city commissioner, to impose and assess for his use, a valid tax for the work done, and that the default, in imposing and assessing such a tax, had caused damage to him, brought suit and obtained the judgment for $4325, upon which this appeal was taken.

The right of the appellee, toan affirmance of this judgment, depends primarily upon the liability or obligation imposed by the contract on the appellants, and as a determination of the character of the contract in that respect will, in our opinion, conclude all questions of right involved, a consideration of other propositions, discussed in the argument of the case, will be unnecessary. In ascertaining whether the contract charges or imposes any liability or obligation on the appellants, which the appellee is entitled to enforce in this case, the ordinance to which it refers, the circumstances preceding and connected with its execution, and the capacity and power of the parties by whom it was executed,' must be considered.

The city commissioner, by the 1st, 34th, 35th and 36th secs, of Rev. Ord., No. 15, of 1850, with the approbation of the mayor, is vested with power and authority to enter into and make contracts for grading and paving, and to assess taxes therefor, in two classes of cases only, 1st, when the proprietors of a majority of the feet of ground, binding and fronting on any condcmn.cd street, lane or alley,- make application to him in writing, to have such street, lane or alley, graded and paved; and 2nd, when all the proprietors of the ground fronting on a street, lane or alley, not formally condemned, make a like application for grading and paving. One or the other of these applications, as the case may be, must be made,-in accordance with the provisions of the ordinance, to initiate his jurisdiction and authority in any case of grading and paving; without such an application he is entirely destitute of the official character and power, in and by which alone he can take any lawful proceeding, or make any valid contract for such work. The power conferred on the mayor, to approve of his determination to grade and pave, and also of his contracts for grading and paving, is limited to the same classes of cases, and will be controlled by the same conditions and principles. As it is admitted in this case, that Hull street, from Port Avenue to the Port Wardens line, was never formally condemned, and that the application to have it graded and paved was made by only a part of the proprietors of the ground binding and fronting thereon, it is obvious that the application was not sufficient to bring the case within the jurisdiction conferred by the ordinance on the commissioner, nor to give him any official discretion or authority to take any proceedings, or make any contract respecting it. The fact, that the contract made, related to a subject within the general scope of his powers, does not make it obligatory on the appellants, if there was a want of the specific power to make it. Although a private agent, acting in violation of specific instructions, yet within the scope of a general authority, may bind his principal, the rule, as to the effect of the like act of a public agent, is otherwise. The city commissioner, upon whose determination to grade and pave the contract was made, was the public agent of a municipal corporation, clothed with duties and powers, specially defined and limited, by ordinances bearing the character and force of public laws, ignorance of which can be presumed in favor of no one dealing with him on matters thus conditionally within his official discretion. For this reason, the law makes a distinction between the effect of the acts of an officer of a corporation, and those of an agent for a principal in corn-mop cases; in the latter the extent of authority is necessarily known only to the principal and the agent, while, in the former, it is a matter of record in the books of the corporation, or of public law. A municipal corporation cannot be held liable for the unauthorised acts of its agents, although done officii colore} without some corporate act of ratification or adoption; and, from considerations of public policy, it seems more reasonable that an individual should occasionally suffer from the mistakes of public agents or officers, than to adopt a rule, which, through improper combinations and collusion, might be turned to the detriment and injury of the public. 17 Mass., 29. 19 Pick., 516. Lee vs. Munroe, 7 Cranch, 366. The case of the Mayor & City Council, vs. Marriott, 9 Md. Rep., 160, we think establishes no principle inconsistent with those recognized as governing this case, as it turned entirely upon the construction of the Act of 1796, chap. 68, which was held to impose an obligation on the corporation to prevent and remove nuisances, for disregarding which it was made liable.

The appellee, in making the contract in this case, was bound to know the whole extent of the commissioner’s power to make the appellants a party to it, and more especially as the ordinance, from which that power was derived, by a particular reference, was made a part of the contract itself. Its execution, in mutual mistake of an important jurisdictional fact, with the stipulation, that the appellants in no case whatever should be responsible for private work done in its performance, inserted in compliance with the provisions of the ordinance, compels the appellee to accept the legal result of the mistake, and the hazards consequent upon the irregularities of the proceedings through which the contract was made. The determination of the commissioner to grade and pave, cannot be held as conclusive of the right to do so, and parties who presume to act upon it, must do so at their peril. 8 Md.Rep., 352.

As the contract of the appellee was entered into by the commissioner on-behalf of the appellants, under circumstances which gave him no power or authority to bind them, we think they cannot be hold liable in any action on the contract, nor for any claim sounding in damages for violating or disregarding its provisions. ...

(Decided April 4th, 1862.)

Holding the opinion, that the contract imposed, no liability or obligation upon which an action in any form can be maintained, we must reverse the judgment without a procedendo.

Judgment reversed.