Central Savings Bank v. Mayor of Baltimore, 71 Md. 515

Central Savings Bank v. Mayor of Baltimore

71 Md. 515 | Md. | 1889

Bryan, J.,

after stating the case as above reported, delivered the opinion of the Court.

The Act of Assembly expressly requires that before any ordinance shall be passed for opening, extending or widening a street in the City of Baltimore, sixty days *518notice of an application for its passage shall be given in two of the daily newspapers in the city. The power to pass the ordinance depends on the performance of this condition. In this case the first publication of the notice was more than sixty days before the passage of the ordinance. The statute does not direct that the notice shall be published any specified number of times;, it merely requires that it shall be given. A notice may be given once, twice or a dozen times, and it may be repeated at distant intervals; but it is difficult to infer that it must be repeated, from the mere requirement that it shall be given. The statute prescribes a limitation under which the legislative power of the Mayor and City Council is to be exercised. If it were possible for us to change the terms of this limitation, we should be met with a very serious difficulty, when we attempted to define the extent to which we should carry the change. Should we say that the notice was to be published ten, twenty or thirty times? or shoxxld we say that the number of publications should be determined by the judgment which we might form of the exigexicies of each particular case? The statute by its terms requires only one publication, as a condition precedent to the valid passage of axx ordinance of the kind under consideration. If this limitation be considered insufficient, it is in the power of the Legislature to make it more stringent; but Courts ought to be extremely cautious of every construction, which would virtually insert in a statute words which it does not contain. In the present case the notice was published a number of times; but the interval between the last publication axxd the passage ’ of the ordinance was less than sixty days. The repetitions of the notice were reasonable, as they gave it greater publicity; but they were not required as preliminaries to the action of the City Council. The ordinance as passed conforms in all particulars to the notice. It provides *519for doing what the notice states would be applied for. A different use of capital letters would have attracted more attention; but as nothing of this kind is required by the statute, the. Court cannot say that it is requisite. The tribunals of the country are charged with the duty of keepiug municipal corporations within the limits of the law; but they cannot too resolutely reject every temptatiou to exercise legislative power. It was within the competency of the Council to refuse to pass the ordinance; and, doubtless, it would have done so, if it had thought that sufficient publicity had not been given to the application. It seems to us that the power to decide this question, like other matters of public interest and expediency, may be more safely lodged with the Council, than with the Courts. At all events the law has lodged it there, and there it must remain. It has been objected that the proceedings of the street Commissioners were invalid, because in the interval between the first notice and the conclusion of the whole work, two of their number went out of office and were succeeded by other members. We must remember that the City of Baltimore has very ample power over its streets. The Act of the Legislature says that it shall have full power to provide for laying out, opening, extending, widening, straightening, or closing up any street, square, lane or alley, as in its opinion the public welfare or convenience may require. And when any of these proceedings take place, the power of assessing damages and benefits is conferred in very liberal terms. The right, of course, is reserved to every owner and possessor to have a jury trial on these questions. And it is provided, that before any commissioners appointed by any ordinance shall proceed to discharge their duties in regard to the matters just mentioned, they shall give notice, by advertisement, of the ordinance under which they propose to act at least thirty days before the time of their first meeting to execute the *520same. Code of Public Local Laws of 1860, Article 4, sections 831 and 839; Act of 1818, cli. 143. With, this limitation on the power of commissioners to act, the whole subject of the assessment of damages and benefits is under the control of the Mayor and Oity Council, with the right reserved of a jury trial to the parties interested. But the corporation exercises its functions through officers. And this particular corporate power is exerted by means of a Board of Commissioners; and the acts of these Commissioners are in no respect personal, but to every intent and purpose official; they are the acts of the corporation. The Commissioners perform such duties in the execution of the corporate business, as the corporation assigns to them. The individuals composing the board may be changed, but the public business is not to stop because of a change of officers. When the term of the Mayor expires and another person succeeds to the office, the new incumbent proceeds to complete the appropriate business of the mayoralty which may have been left unfinished by his predecessor. And so it is in every department of the City government. All the officers of the city must, of course, be governed by the ordinances^defining their duties and powers; but it must not be forgotten that ordinances are intended to promote the public business'and not to obstruct it; and their construction must be in harmony with this purpose. The Commissioners are described as acting as a Board. (Art. 41, sec. 2, Ordinances, Baltimore City Code.) By the sixth section of this ordinance they are required to give thirty days’ notice of their first meeting; and when they meet, they are directed to proceed to ascertain the damages and benefits caused by the opening of the street, or its widening or extension, as the case may be. After the assessment is completed, the eighth section requires them to place a full statement of their work in the office of the Register of the city for the inspec*521tion of all persons who desire information of its contents, and it further requires them to give notice of the fact by publication; and that they will meet on a day named to hear objections by persons claiming to be interested; on the day appointed they must hear representations and testimony in behalf of all persons who claim to be interested, and must make such corrections and alterations as shall appear to them, or a majority of them, to be just and proper. After such corrections are made as have been determined on, the statement is to be deposited in the office of the Eegister, and he is required to give notice by advertisement that the statement has been placed in his office, and that all parties interested are entitled to appeal to the Baltimore City Court. All through the proceedings in this behalf, the work to be performed is the business of the corporation, and the individual Commissioners have no other concern in the matter, than other public servants have in the discharge of their duties. The object of the ordinance is to have the assessments made and proper notices given to persons interested, so that they may be heard to urge airy corrections, which they desire to have made; and to appeal and obtain a jury trial, in case they should wish to do so.' This object is efficiently secured by the continued progress of the work, notwithstanding changes in the membership of the Board; while on the other hand, if it were necessary to commence anew wherever a change took place, delays, expenses and inconveniences without number would result. ISTo injury whatever can accrue to the property owners from this construction of the ordinance. The determinations of the Commissioners are not binding on them against their will. After all the proceedings are completed, they have a right to appeal to the Court and obtain a hearing and examination of the subject de novo, with the benefit of a trial of the facts by a jury. Furthermore, they have an appeal *522to this Court. Their rights appear to he very well guarded.

(Decided 17th December, 1889.)

A good deal, of comment was made in the argument on the nineteenth section of the ordinance. It is in these words: aThe said Commissioners for Opening Streets shall proceed to close all their work, notwithstanding they may not he re-appointed, within six months from and after the expiration qf the time fo? which they were appointed hy virtue of the first section of this ordinance. ”

This section was passéd when the Commissioners were all appointed annually, and it had the effect of elongating their term of'office, so far as the work in their hands was concerned. At present the terms of the Commissioners are for three years; hut one goes out of office every year.

In its present position, it is rather out of connection with the rest of" the ordinance. It has however the effect of continuing each Commissioner’s functions for six months after the expiration of his term of' office, if it should he necessary for the completion of the work in hand; and it' is a command that it shall be finished within that time. But if this command should be disregarded, we are not to infer that the main purpose and intention of the ordinance will thereby be defeated. It is one of the minor details designed to carry out the general purpose, and is entirely subordinate to it. If neglected, the proceedings of the Commissioners will nevertheless he valid, if in other respects unobjectionable.

Ruling affirmed.

A motion was made in behalf of the appellant for a re-argument of the foregoing case, and a printed brief was filed in support of the motion. The motion was overruled by the Court, and the following memorandum was filed by Judge Bryah:

(Filed 19th June, 1890.)

At the hearing of the motion for a re-argument of this cause, the Court’s attention -Was called to an Ordinance of the Mayor and City Council, passed in 1881, which changed the tenure of office by the Commissioners. This circumstance would have made no difference in our opinion if the ordinance had been before ns. But it was not offered in evidence in the Court below, and was not in any way mentioned in the transcript of the record. The Courts cannot judicially know the ordinances of the City of Baltimore. They must be brought to their attention by being proved in evidence as facts. The forty-ninth section of Article thirty-five of the Code provides, that they may he read in evidence from the printed volumes published by the authority of the corporation. But the evidence must be offered, if it is desired that the Court should take cognizance of them. In most cases, counsel agree that they shall be considered in evidence without any formal offer. But such agreements do not change their essential character, nor dispense with the necessity of referring to them in transcripts of records for this Court. In this particular case, it would he an unjust surprise to the appellant to deprive him of the benefit of the ordinance in question; and if it would have made any difference in our opinion, we should have ordered a re-argument.