Holland v. Mayor of Baltimore

11 Md. 186 | Md. | 1857

Lje Grand, C. J.,

delivered the opinion of this court.

This is an appeal from an order of the circuit court for Baltimore city, dissolving an injunction. The case may be thus stated: the appellant, at the time of the institution of proceedings, was the owner of a lot of ground on the east side of Hollins street, in the city of Baltimore. That street was paved, and a portion of the expense incurred was assessed against the appellant, who, refusing to pay it, a distress was levied, in the name of the Mayor &- City Council of Baltimore, on the property found on the premises. The appellant sued out a writ of replevin, and, subsequently, filed the bill in this case, to restrain the further proceedings of the appellees to collect the amount alleged to be due by him for the paving in front of his lot. There is no question in regard to the fact of the paving having been done, nor is there any as to the ownership by the appellant of the lot, for the paving in front of which he has been sought to be charged. These facts are conceded. Without stating circumstances which were relied upon in the argument, but which, in our opinion, have nothing to do with the decision of this caso, we will advert to the grounds on which rests the equity set up in the bill. They are these: Holland and Cassard, owners of lots binding on the street, did not sign a recommendation to the city commissioner of the city of Baltimore, asking that the street might be paved. Gen. George H. Steuart signed, with others, a recommendation that the street be paved, and signed as the owner of 195 feet fronting on the street, when it is conceded by the admissions of counsel, and established by the proof iu the case, that, with the exception of 90 feet, he was not the absolute owner of any of the lots for the paving in front of which he signed ; he having leased 105 feet of them for terms of 99 years, renewable forever. If he had no right to represent the 105 feet which had been leased, then there was not a majority of the feet fronting on the street recommended to be paved by those who had the right or authority to do so, and, as matter of necessary consequence, the ■city authorities liad no power to direct the paving of the street. It is a matter of mathematical ascertainment how many feet there are binding on a street within a given distance, and, in this case, it is not only shown by the enumeration of the feet of the several lots fronting on the street, but admitted, that if Gen. Steuart had not the right, to represent the 105 feet leased for ninety-nine years, there were not a majority of the feet represented by those who alone liad the right to do so.

By the act, of 1833, chapter 40, section 1, the Mayor and City Council of Baltimore, on the recommendation of the owners of two-thirds of the feet fronting on any street, were empowered to order that it be repaved; and by the 3rd section of the same act it is provided, “that a tenant for ninety-nine years, or for ninety-nine years, renewable forever, and the executors or administrators of such tenant, shall be deemed and taken as an owner, within the meaning of this act.” By the act of 1840, ch. 63, it is enacted, that the Mayor and City Council should have full power and authority to provide, by ordinance or otherwise, for the prompt collection of taxes due the city, and, to that end, to sell real as well as personal property.

It will be perceived, that by the language of the act of 1833, the authority conferred, in words, is only to repave. But, by the ordinance of the Mayor and City Council of Baltimore, of May 20th, 1850, it is provided, that whenever the city commissioner shall receive an application, in writing, for paving to be done in any unpaved street, or any part of such street, from the proprietors of the majority of the feet of ground binding and fronting on such street, or the part thereof to be paved, it shall be the duty of such commissioner, &c., &c.

Although the authority of the corporation to pave an unpaved street, is not derived from the act of 1833, but conferred by those of 1797, ch. 54, and 1817, ch. 148, yet, in the construction of the two earlier acts, that of 1833 ought to be adverted to as being in pari materia; and the definition of the word “owner,” occurring therein, should be taken as the correct one, as applicable to it, or its synonyme, “proprietor,” when either appears in the other acts, in relation to paving.

It was conceded, at the bar, that a majority of the feet must be represented, to-give the authority. In this case, if Gen. Steuart had not the authority to speak for 195 feet, as he did, then there was no power in the corporation, or its commissioner, to direct the paving alluded to in the proceedings; and that he had no such authority, is manifest from the language of the act of 1833, which, in express terms, designates the lessee for ninety-nine years, or for ninety-nine years, renewable forever, as the “owner.” Gen. Steuart could only act to the extent of the 90 feet, in which he retained an absolute fee-simple.

This being so, the only remaining inquiry is, will equity relieve in such a case against an attempt to enforce payment by a sale, where no debt is due? We entertain no doubt on the question. There are several principles recognized in courts of equity which cover the case, among which is, that (where ample and perfect justice can be done) equity will interfere to prevent multiplicity of suits; and, again, that equity will not allow a title, otherwise clear, to be clouded by a claim which cannot be enforced either in law or equity. These are principles of universal application. The idea that a party ought to stand by and see his property illegally exposed to public sale, and then force the purchaser to bring his ejectment to gain possession, or to try his title, seems to be sustained by no good authority. Such a doctrine would not only encourage circuity of action and multiplicity of suits, but render the title of the real owner comparatively valueless, while the suits at law should be pending. We have shown that there is not the slightest claim, under the acts of Assembly and ordinances of the city of Baltimore, against the property of the appellant, for the paving done in front of his lot, and it would be strange, indeed, if a court of equity had no right to interpose, in his behalf, to save him from an annoying, protracted and expensive litigation in the courts of law. But such is not the law, and the following (without referring to others) are authorities abundantly clear on the point; McCann vs. Taylor, et al., 10 Md. Rep., 418. 2 Story's Eq., sec. 955, a. The case of Dolan & Foy, vs. Mayor & C. C. of Balto., 4 Gill, 402, recognized, substantially, the jurisdiction of equity in a case similar to the present.

We shall reverse the order of the circuit court, dissolving the injunction, and pass one making it perpetual.

Order reversed, and injunction made perpetual.

In the case of George and Lewis Cassard, vs. The Mayor and City Council of Baltimore, and Charles Howard, Collector, the facts were the same as in the above case, except that there was no distress levied upon personal property, and having /been argued at the same time, Le Grand, O. J., delivered the opinion of this court.

For the reasons assigned in the opinion in the case of Holland vs. Mayor and City Council of Baltimore, we reverse the order in this case, and make the injunction perpetual.