51 Md. 1 | Md. | 1879
delivered the opinion of the Court.
As it is neither alleged in the bill nor pretended as matter of fact, that the judgment before the justice of the peace, (the execution on which is sought to be restrained,) was recovered without process duly served on the proper city official, there is an entire failure of evidence to sustain the application for an injunction upon the ground of fraud and surprise. It is alleged, it is true, that the judgment was rendered ex parte, but that was the fault of the appellee. Having been duly served with process it was the duty of the appellee to have attended before the justice at the time and place designated, and there availed itself of all defences then existing. Nor can the judgment subsequently recovered against the appellee in Baltimore City Court be questioned or impeached in the way proposed. If it be true that it was for the same cause of action as that upon which the former judgment before the justice was rendered, that fact ought to have been availed of by a plea of former recovery. The fact that the attorney of the city, who tried the case in Baltimore City Court, did not know of the existence of the former judgment, can make no difference. The corporation was bound to take notice of the fact; and the want of knowledge on the part of its attorney is no excuse for the failure to make the available defences at the proper time and place. It is well settled that a party to a proceeding is bound to be present in Court, either in person or by an attorney, to
The alleged ground of fraud and surprise failing the appellee, the next proposition presented and relied on is, that , an execution cannot be rightfully issued against a municipal corporation, on a judgment for debt or damages recovered against it. And whether such proposition, in the unqualified form stated, can be maintained, is a ques
As we understand the counsel for the appellants, it is not contended that an execution could be issued against a municipal corporation and be levied upon property owned or used by it for purely public purposes; such as a courthouse, jail, alms-house, city or town-hall, police station-houses, market-house, fire engines, &c. But it is contended that municipal corporations may hold, and that Baltimore City does hold, property in a private or quasi private character, not necessary to the execution of the public municipal functions of the corporation, and that such property is liable to execution, on a judgment recovered against the corporation, in the same manner that it would be in the hands of an individual judgment debtor.
The corporation of the City of Baltimore, by its charter, (2nd vol. Code, Art. 4, secs. 1 and 2,) is declared to be entitled to “purchase and hold real, personal and mixed property, or dispose of the same for the benefit of said city; ” and that “ all the property and funds of every kind belonging to, or in possession of the City of Baltimore, are vested in the said corporation; and the said corporation may receive in trust, and may control for the purposes of such trusts, all money or other property which may have been, or shall be, bestowed upon such corporation by will, deed or in any other form of gift or conveyance, in trust for any general corporation purpose, or in aid of the indigent and poor, or for the general purposes of education, or for charitable purposes of any description within the
As has been correctly said a municipal corporation like the City of Baltimore, is a representative not only of the State, but is a portion of its governmental power. It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the State. United States vs. Balto. and Ohio R. R. Co., 17 Wall., 322; Mayor, &c. of Balto. vs. Police Board, 15 Md., 376, 462. It is therefore incorporated for public and not private objects ; and it is invested with privileges and allowed to hold property for the purposes mentioned in its charter. And in construing the power of the City of Baltimore to hold property under its charter, it was said by the Supreme Court, in the case of McDonogh vs. Murdock, 15 How., 367, 413, that “All the property of a corporation like Baltimore is held for public uses, and when the capar city is conferred or acknowledged to it to hold property, its destination to a public use is necessarily implied.” It is true, there is a distinction taken, and, for some purposes, well maintained by the authorities, between property acquired for public municipal purposes exclusively, which is vested in or appertains to the corporation in its public, political or municipal character, and which may be essential to the complete performance of its public functions, and property acquired and held by it not essential to the discharge of ordinary public municipal functions, but for the. ease and accommodation of the public within the corporate limits. For instance, the supply of water or gas light to the entire population of a city is not essentially a public municipal function; for the supply of water or gas may be furnished by an independent corporation or by an individual as well as by the municipal corporation itself. It is no part of the duty of the State, through its municipal organizations, to supply these things to the people. Yet it is a common thing for
But, notwithstanding the distinction just stated, all the property held by the corporation is, as we have seen, when considered in an enlarged sense, held for public uses and benefits. It is not pretended, of course, that it would be competent, under an execution against the corporation, to seize any property held in trust by it; arid all other property that it holds, not used in the exercise of its public municipal functions, is held for the general benefit and advantage of the population subject to the municipal jurisdiction. In the case of the United States vs. The Balto. & Ohio R. R. Co., 17 Wall., 322, before referred to, it was held
And we thus conclude the more readily because the law does not leave the creditor without ample remedy against the corporation. By the Act of 1876, ch. 367, it is provided that any municipal corporation in this State, against which there may be a judgment recovered in a Court of law, shall have power to levy a sum of money upon the assessable property of such municipality sufficient to pay such judgment. And for the purposes of the remedy in such cases, a judgment rendered by a justice of the peace may well be regarded as a judgment rendered by a Court of law. It cannot be supposed that the Legislature de
That part of the decree appealed from which makes perpetual the injunction against all proceeding under the execution is affirmed; but that part of the decree which forbids and enjoins all further proceedings upon the judgment against the appellee must be reversed.
Decree affirm-ed in part, and reversed in part.