Mayor of Baltimore v. Radecke , 49 Md. 217 ( 1878 )

Miller, J.

delivered the opinion of the Court.

The appellee is tenant and occupant of certain premises situated on McClellan’s alley, in a central business locality in the city of Baltimore, where he and his father before him had carried on the business of carpentering and box-making since the year 1853. In 1866 he applied to the-Mayor and City Council for permission, which was granted, to erect and use on these premises and in the carrying on of his business, a steam engine. The resolution granting, this permit contained a provision, in conformity to a City Ordinance on the subject, that the engine was “to be removed after six months’ notice to that effect from the Mayor.” Upon the passage of this resolution he erected and has ever since used a steam engine in his said business, but some time in the year 1873, the Mayor gave him notice-to remove it which he refused to do. The city, then, after the expiration of the six months instituted a suit before a justice of the peace, for the penalty for non-removal provided in the Ordinance, and the appellee thereupon filed the bill in this case for an injunction to restrain the prosecution of that action and others which the city threatened to bring from day to day in order to enforce the removal of this engine. The Court below on final hearing orderedi the injunction to be issued as prayed and made it per-jl petual. From this order the Mayor and City Council have' appealed.

The city legislation on the subject, in force at the time this permit was granted to the appellee, was first, the 56th section of Ordinance No. 33, approved June 5th, 1858, by which it was provided under prescribed penalties that no person should “erect, build or have put up any steam saw mill or machinery, or any steam engine for any purpose whatever, or planing machine, or machinery within the limits of the city, without first obtaining the sanction of the Mayor and City Council,” and secondly, part of the 5th section of Ordinance No. 78, approved June 9th, 1864, which provided that “ all permits granted for steam boilers and steam engines and boilers may be revoked, and the same shall be removed, after six months’ notice from the Mayor, and anyone receiving such notice, who shall refuse or neglect to conform to the requirements of the same shall pay a fine not exceeding one hundred dollars, and a further fine not exceeding fifty dollars, for every day such refusal or neglect shall continue after the first.” It is this last provision which the present case requires us more especially to consider, not only because the bill assails its legality and validity, but because the injunction complained of restrains the prosecution of suits for the penalties which it imposes for non-compliance with the notice and order to remove given by the Mayor. It is obvious that those who enacted this provision did not suppose it was an exercise of the power “to prevent and remove nuisances,” for it would be a curious anomaly in municipal legislation on that subject, as well as a novel mode of removing a nuisance, to pass an Ordinance allowing a nuisance to remain for six 'months after the Mayor had determined it to be such, before any steps could be taken to enforce its removal. But further than this, a stationary steam engine is not in itself a nuisance even if erected and used in the midst of a populous city, unless it interferes with the safety or convenience of the public in the use of the streets. There is no proof in this record of any such interference, or even that this was the ground of the Mayor’s action in giving the notice. Nor was this engine used in connection with any trade or occupation which the law pronounces offensive or noxious. The business of carpentering and box-making is neither offensive to the senses nor deleterious to health. In fact the only complaints made against the engine are its liability in common with all other steam boilers, to explode, and that it is used in a business in which combustible materials are necessarily brought in dangerous proximity to the fire of its boiler, and it therefore subjects buildings and merchandise in that vicinity to increased danger from fire, raises the premiums of insurance thereon, and excites the fears of neighboring owners for the safety and security of their property, but neither one nor all of these circumstances combined, make it a nuisance. Rhodes vs. Dunbar, 57 Penn. State Rep., 274.

But the Legislature has granted ample power of legislation upon the subject of the erection and use of steam engines within the city limits, to the Mayor and City Council of Baltimore, independent of the power “to prevent and remove nuisances.” They are clothed with the powerdo pass' Ordinances “for the prevention and extinguishment of fires,” for “securing persons and property from danger or destruction, and for promoting the great interests and insuring the good government of the city,” and “ to pass all Ordinances necessary to give effect and operation to all the powers vested in the corporation of the city.” It has been well said in reference to such general grants of power that as to the degree of necessity for municipal legislation oh • the subjects thus committed to their charge, the Mayor and City Council are the exclusive judges, while the selection of the means and manner (contributory to the end) of exercising the powers which they may deem requisite to the accomplishment of the objects of which they are made the guardians, is committed to their sound discretion. Harrison vs. Mayor, &c., 1 Gill, 264. This discretion is very broad, but it is not absolutely and in all cases beyond judicial control. Modern decisions in other States have in some instances extended the control of the Courts over Municipal Ordinances upon the ground of their unreasonableness, further perhaps than the adjudications in this State would justify us in going. The cases on this subject and the conclusions to be drawn from them are well stated by Judge Dillon in his admirable work on Municipal Corporations, in sections 253 to 260. They will also be found collected in Wood on Nuisances, 774, note 1. While we may not be willing to adopt and follow many of these cases, and while we hold that this power of control by the Courts is one to be most cautiously exercised, we are yet of opinion there may be a case in which an Ordinance passed under grants of power like those we have cited, is so clearly unreasonable, so arbitrary, oppressive or partial, as to raise the presumption that the Legislature never intended to confer the power to pass it, and to justify the Courts in interfering and setting it aside as a plain abuse of authority. In applying the doctrine of judicial control to this extent, we contravene no decisions in our own State and impose no unnecessary restraints upon the action of municipal bodies. The inquiry then arises is the Ordinance in question such as we have described? To answer this question it is necessary to consider briefly upon what it operates and what mischiefs or wrongs it is capable of inflicting. It is matter of common knowledge, as well as of proof in this case, that the use of steam engines is absolutely necessary for the successful prosecution of nearly all the various manufacturing, commercial, industrial and business enterprises which are essential to the prosperity of large cities. Great numbers of them are in constant use in the City of Baltimore for purposes so varied and numerous as to embarrass description, and they are to be found in every business locality and in all sections, of the town. In fact it may be safely affirmed that their use could not be prohibited or discontinued without the most serious impairment, if not destruction, of the prosperity and growth of the city. Now it is with these powerful and dangerous but most important and valuable aids to human industry, that this Ordinance deals, and what does it do? It does not profess to prescribe regulations for their construction, location, or use, nor require such precautions and safeguards to be provided by those who own and use them as are hest calculated to render them less dangerous to life and property, nor does it restrain their use in box-factories and other similar establishments within certain defined limits, nor in any other way attempt to promote their safety and security without destroying their usefulness. But it commits to the unrestrained will of a single public officer the power to notify every person who now employs a steam engine in the prosecution of any business in the City of Baltimore to cease to do so, and by providing compulsory fines for every day’s disobedience of such notice and order of removal, renders his power over the use of steam in that city practically absolute, so that he may prohibit its use altogether. But if he should not choose to do this, but only to act in particular cases, there is nothing in the Ordinance to guide or control his action. It lays down no rules by which its impartial execution can be secured or partiality and oppression .prevented. It is clear that giving and enforcing these notices may, and quite likely will, bring ruin to the business of those against whom they are directed, while others from whom they are withheld may be actually benefited by what is thus done to their neighbors, and when we remember that this action or non-action may proceed from enmity or prejudice, from partizan zeal or animosity, from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary.to suggest or to comment upon the injustice capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment’s consideration. In fact, an Ordinance I. which clothes a single individual with such power, hardly i; falls within the domain of law, and we are constrained toj pronounce it inoperative and void. Resting our decision as to the invalidity of this Ordinance on this ground, we shall not consider the question whether it is also void as an unauthorized delegation of a public power or trust. In the view we have taken of the case, it becomes unnecessary to express any opinion upon that question. It must also be observed that what we have declared void is only that part of the Ordinance of 1864, which gives to the Mayor the power to revoke permits for steam engines and boilers, and we are not to be understood as expressing any ■disapproval of the section of the Ordinance of 1858, which requires a permit from the Mayor and City Council for the ■erection of all such engines within the city limits. The Act of 1872, cli. 153, which was referred to by the appellants’ counsel as containing a ratification and approval by the Legislature of both these Ordinances, contains no reference to the Ordinance of 1864. The section of that Act which is relied on for this ratification and approval simply provides that “nothing in this Act shall conflict with the Ordinance of the Mayor and City Council of Baltimore, which requires their permission for the erection of steam boilers in that city.” This in plain terms refers exclusively to the Ordinance of 1858, and we by no means affirm that it constitutes a legislative ratification and approval even of that Ordinance.

As to the question of jurisdiction we have no doubt. It has been decided by this Court in too many cases to be longer open to question, that where a municipal corporation is seeking to enforce an Ordinance which is void, a Court of equity has jurisdiction at the suit of any person injuriously affected thereby, to stay its execution by injunction. This was distinctly announced in Page’s Case, 34 Md., 564, where it is said : “ there is no doubt that where an Ordinance is void, and its provisions are about to be enforced, any party whose interests are to be injuriously affected thereby, may, and properly ought to go into a. Court of equity and’ have the execution of the Ordinance-stayed hy injunction. This course of proceeding has been sanctioned and approved by this Court in numerous cases,” and they refer to Holland’s Case, 11 Md., 187; Bouldin’s Case, 15 Md., 18, and Porter’s Case, 18 Md., 284. To these may be added Groshon’s Case, 30 Md., 436; Gill’s Case, 31 Md., 375; Hazelhurst's Case, 31 Md., 220, and St. Mary’s Industrial School vs. Brown, 45 Md., 310. The averments of the bill as well as the facts established by the proof, bring the present case clearly within the-principles upon which jurisdiction in equity was sustained in the cases cited.

(Decided 27th June, 1878.)

. It follows that the decree appealed from must be affirmed.

Decree affirmed.