Mayor of Baltimore v. Bouldin , 23 Md. 328 ( 1865 )

Bowie, C. J.,

delivered the opinion of this Court:

When this case was before this Court, upon a former appeal, from an order dissolving an' injunction, on a motion to dissolve,- in a case beard upon bill, answér and proof taken under tbe Act of 1835, cb. 380; tbe order dissolving tbe injunction was reversed, because tbe equity of tbe bill was'not fully d'enied by sucb an answer as could authorize tbe passage of tbe order appealed from. Vide, 15 Md. Rep., 18 to 22.

In tbe opinion of tbe Court announcing that conclusion, it is declared, to be tbe established doctrine,'that unless tbe owners of a majority of tbe feet fronting on a street to be paved, assent in writing to tbe paving, tbe proceedings of tbe city authorities, directing tbe paving to be done, are null and void, and- a Court of Equity has, upon application of tbe non-assenting owners, jurisdiction to prevent, by injunction, the sale of their property to pa|y for such paving; for which they refer to Holland vs. The Mayor, &c., 11 Md. Rep., 186. That case turned on tbe 1st section of tbe Ordinance of 1850, No. 15, and- tbe Acts of Assembly therein; The same doctrine referred to, is reaffirmed in tbe more recent cáse of The Mayor, &c., vs. Eschbach, 18 Md. Rep., 281, in which, referring to tbe same ordinance, it is said-: “The City Commissioner, by tbe 1st, 34th,-35th and 36th secs, of Revised'Or dinance No. 15 of 1850, with tbe approbation of tbe 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 tbe proprietors of a-majority of tbe feet oí ground, binding and fronting on any condemned sto’eet, lane or alley, make application to him in writing to have sucb street, lane or alley graded and paved; and, 2nd, when all tbe proprietors of the- ground fronting on a street, lane or alley, not formally condemned, make a like application for grading and paving.”

The learned Judge assigning tbe reasons fot tbe decree now appealed from, and under consideration, relies upon tbe cases last cited, viz : It being apparent in this case, that tbe application to pave tbe Belair Avenue was not signed by all the proprietors of ground bounding on said Avenue. I will sign a decree overruling the motion to dissolve the injunction, and mating the injunction perpetual, upon the principle announced in the Mayor & C. C. of Balto., vs. Eschbach, 18 Md. Rep., 276; that as the street in question was not to be considered as a condemned street, on the true construction of the Revised Ordinance of 1850, No. 15, secs. 1 and 36, the City Commissioners had no power,” &c.

In Eschbach’s case it was admitted, that Hull street from Fort Avenue to the Port Warden’s 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; hence, in the language of the Court, “It was obvious that the application was not sufficient to bring the case within the jurisdiction conferred by the ordinance on the Commissioners,” “nor to give him any official discretion or authority to take any proceedings, or make any contract respecting it. ” That was also an action at law, in which the plaintiff had to stand or fall upon strict legal and technical grounds. In this-case, all these jurisdictional facts are disputed, and to be established by the appellee, seeking the injunction against proceedings which are prima facie, presumed to be legal and regular.

The appellants insist that Belair Avenue, being already a condemned street to the extent of forty feet, the notice preliminary to the exercise of the power of widening it, was legally sufficient; and when the street had been widened, under Ordinance No. 61, of 1851, it was, to all intents and purposes, a formally condemned street, to which the regulations prescribed for that class of streets properly applied. The appellees maintain the converse of these propositions,alleging that the notice that application would be made to widen Belair Avenue, &c., as laid down on Poppleton’s plat, &c., could not be made to cover the bed of a street or highway of forty feet already existing, but applied only to the enlargement of the width of the street from forty to fifty feet.

These objections involve 1st, the authority to widen; 2nd, the right to pave.

The Act of 1838, ch. 226, sec. 1, invests the Mayor and City Council of Baltimore with power and authority to provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, &c., within the bounds of said city, which, in their opinion, the public welfare or convenience may require; to provide for ascertaining damages and benefits, and for assessing and levying, either generally on the whole assessable property within said city, or specially on the property of persons benefited, the whole or any part of the damages and expenses which they shall ascertain will be incurred in locating, opening, extending, widening, &c.; to provide for granting' appeals, for jury trials, &c.; provided, nevertheless, that' before the Mayor and City Council proceed to execute any of the powers vested in them by that Act, at least sixty-days’ notice shall be given of any application which may be made for the passage of any ordinance, by advertisement in at least two of the daily newspapers in the' city of Baltimore.

The powers granted by this Act, are such as are essential to the existence and expansion of a great municipality, and confided to a local legislature, selected by its citizens for the government of its concerns. It would be fatal to the objects for which these powers are delegated" by the General Assembly of the State, to require all the notices of the application for ordinances to carry into effect these powers, to specify with technical precision the objects for which the applications will be made. Such particularity would embarrass all the subsequent proceedings dependent on the notices, and render the rights acquired under them so precarious as to destroy all confidence in the local legislation of the city.

The notice in this case was, in our opinion, a sufficient compliance with the proviso of the Act above cited, in accordance with which Ordinance No. 61, of 1851, was passed by the Mayor and City Council. The authority conferred by this ordinance on the Commissioners, “to widen and condemn North Gay street, or Relair Avenue, to the width of which it is laid down on Popplcton’s map,” was a legitimate exercise of the power conferred by the Act. Such being the case, it follows that the proceedings of the Commissioners, under that ordinance, are subject to the regulations of Ordinance No. 17, approved April 30th, 1850, and Ordinance No. 15,1850, approved 20th May 1850, under which arises the question, whether Belair Avenue was a “street formally condemned under any law or ordinance?”

What constitutes a formally condemned street, becomes a material question in commencing any proceeding for paving or grading, as in the one case the owners of a majority of the front feet is sufficient; in the other, the unanimous consent is required. This question has not been, as far as we are informed, judicially determined. In the case just cited, the learned counsel for the appellants contended, that, according to the true construction of the laws and ordinances relating to the paving of streets, and especially of Revised Ord. 1850, No. 15, secs. 1 and 36, a majority was sufficient to vest jurisdiction in the City Commissioner, in every case where the title to the heel of the street was, at the time of the application, owned by the City Authorities, either by formal condemnation, or by deed or dedication. Vide Dulany’s Argument, 18 Md. Rep., 277.

The 1st and 36th sections of the ordinance, upon the true construction of which the decision in this case mainly depends, will be better understood when placed in juxtaposition. The ordinance is entitled: “An ordinance establishing a system for grading, paving and re-paving the streets,” &c. Sec. 1 enacts, “that when the City Commissioner shall receive an application, in writing, for paving to bo done in any unpaved street, &c., from the proprietors of the majority of the feet of ground binding and fronting on such street, ozc., or the part thereof to he payed, it shall be the duty of the Commissioner to give seven days’ publie notice, by an advertisement in one or more newspapers in the city of Baltimore, of the fact of such application, as also of the time and place when said Commissioner intends to act, for the purpose of determining on such application.” In this section no distinction is made between condemned and un-condemned streets.

Sec. 36 enacts, “that the several regulations prescribed by ordinance relative to streets, shall be construed to extend to all streets, lanes and alleys which are opened, but which have not been formally condemned as public, as fully as to any streets, lanes or alleys which have been regularly condemned, in pursuance of any law or ordinance, provided the proprietors of all the lots binding on such street, lane or alley shall assent to the extending of such regulations.”

The distinction here made is between streets opened, but not formally condemned as public, and streets which have been regularly condemned in pursuance of any law or ordinance. “Condemned as public,” must be synonymous with “appropriated to the public,” or “streets belonging to the public the means being put for the end.

Condemnation of streets, is one of the means of extinguishing the private right or title of the owner of the land, and vesting it in the public. Where that title has been transferred, the subject matter to be graded or paved, being already publie property, the owners of a majority of front feet are deemed most competent to jpdge of the expediency of the proposed improvement. On the other hand, where the bed of the proposed road is still private property, every proprietor to be affected by the change, must be consulted and consent. Hence it was said, in Moale’s case, 5 Md. Rep., 322: “We hold, that a person owning a lot lying on the bed of the street which is taken for public use, is entitled to be compensated for it precisely as if no street was opened over it. Of course this view is wholly independent of all question of dedication. In such a case, there could be no claim for damages, for tbe party baying given tbe ground to the community, can set up no just claim to be compensated for it.”

To require tbe process of condemnation by inquest (tbe legal mode of exercising tbe right of eminent domain) to be resorted to, where tbe property was already in tbe public, would be such an anomaly as tbe law could not intend. There would be nothing for such an inquest to find, no damages to assess; an idle ceremony, productive only of costs and delay; hence such an interpretation is not to be adopted, unless inevitable. The decision in Kane vs. Mayor, &c., 15 Md. Rep., 249, shows that tbe title acquired by condemnation, is not an absolute, unqualified fee, but an appropriation of private property to public use, consistent with the objects of tbe Corporation for which it is condemned. This right had already been acquired by the city in so much of Belair Avenue as was a public highway prior to the ordinance directing it to be widened and condemned. See Act recognizing Poppleton’s map.

The question, who is a “proprietor” or “owner,” within the purview of the 1st and 36th sections, on whose application the Commissioner is to determine to gradé or pave, is not without difficulty.

The Act of 1833, ch. 40, entitled, an Act for re-paving streets, &c., in the city of Baltimore, declares, in sections 3,4 and 5, “that a tenant for ninety-nine years, renewable forever, and the executor or administrator of such tenant, a mortgagee in possession, or the guardian of an infant owner, shall be deemed and taken as an owner within the meaning of that Act.” In Holland vs. The Mayor, &c., 11 Md. Rep., 196, this Court determined, although the power to pave an unpaved street was not vested in the Corporation by that Act, yet, it being in pari materia, the Legislative definition of the word “owner,” therein, was to be applied to its synonyme, “proprietor,” as used in the Acts of 1'79T, ch. 54, and 1817, ch. 148, and which has been adopted since in the Revised Ordinances of 1850, No. 15, establishing the system for grading and paving.

The reasons which induced this legislative declaration of •the estate, interest or office which would constitute an owner, must weigh with this Court in interpreting the same word, or its synonyme. It does not require an absolute, legal and equitable estate in fee, yet there must be such an interest as would protect the property to be affected from incumbrances which would prejudice the tenant in reversion, and secure to the city a full right of way. The presumption of law is, that the improvement to be made will enure to the benefit of the majority, and promote public convenience. Those who have such a state in the subject matter as that they could not encumber it without injury to themselves, would therefore be qualified to apply; if their title is an equitable title, in fee, depending on contract to be consummated, such an interest would be enough to protect the interest of the vendor from prejudice, by wanton applications. An equitable estate, in fee, accompanied by possession, or an interest equivalent to that of a tenant for ninety-nine years, renewable forever, an executor or administrator of such, or mortgagee or mortgagor in possession, or a vendee under a deed of trust, who subsequently acquires a title to the fee, would be an owner or proprietor. To require an absolute unencumbered legal estate in fee, would arrest all improvement.

We think, therefore, that the title of Messrs. Leach, Hil-berg and Henkelman was such as authorized them to sign for the number of feet represented by them. The act of the treasurer of the Second Presbyterian Church, was ratified and confirmed by their subsequent payment of the tax levied on them, which was equivalent to the most formal and legal prior authority, ‘ ‘omnis ratiliábitio mandato ceqm-paratur.”

The signatures of Rodewald, by Yan Camp, were made in pursuance of an express verbal request, by the trustee and cestui que trusts. Such authority would have been sufficient in law to bind their interests in a contract for sale made by their attorney — the authority of the agent need not be in writing, to bind the principal in such cases.’

Tbe argument, “ ab inconvenienti,” tbat purchasers might, before payment of their purchase money, by signing such applications, encumber the property purchased, is met by the consideration, that vendors may guard against such in-cumbrances by proper stipulations in the contracts of sale,, or taking such indemnity as would entirely protect them whereas, the absence of this power or right to sign, might-retard almost indefinitely the development and prosperity of the most valuable sections of the city.

The 4th point of the appellees, and 5th of the appellants, involve the construction of the 8th section of Ordinance 10, of 1855, being an ordinance supplementary to an ordinance providing for the appointment and compensation, and prescribing the duties of an Auditor. Without recapitulating the section, it is sufficient to say, that, in our judgment, the interpretation given by the counsel for the appellee was correct, that it did not require re-advertisement by t’ ditor to enable him to proceed to enforce the colleci the taxes, under the circumstances of this case, the pi/^ious notice having been given by the Collector, as required by the ordinance as then existing.

The objections made to the legality and regularity of the-proceedings of the Commissioner, under the 2nd and 4th sections of Ordinance No. 17, are such as could properly have been reviewed by appeal under the 9th section of that ordinance — to which the language of the late learned Chief Justice DoRSuy, in the case of The Methodist P. Church vs. The Mayor, &c., 6 Gill, 402, applies: “To sustain a Court of Equity in the exercise of such powers, would be to confer on it appellate jurisdiction, where it is incompetent to administer justice, and render full and adequate relief to all concerned, on whose rights, if it act at all, it ought to adjudicate.”

The conclusion from these premises is, that, in our opinion, the learned Judge below erred in continuing the injunction in this case, and making the same perpetual, and that the decree of the 6th of July 1864, to that effect, should be reversed, and tbe bill dismissed, eacb party paying tbeir own costs.

(Decided July 11th, 1865.)

Decree reversed and hill dismissed.