23 Md. 449 | Md. | 1865
delivered the opinion of this Court:
This is an appeal from an order of the Circuit Court of Baltimore city, passed on the 6th day of February 1865, granting an injunction to restrain the appellant, its officers, agents and servants from proceeding to enforce an Ordinance entitled, “An Ordinance to open a street in continuation of Holliday street, from Baltimore ^street to Second street,” and from taking any further steps or proceedings thereunder for the opening of such street, until the matter can be heard and determined in equity.
The complainants are the owners of property on the south side of Baltimore street, and the apprehended damage and injury to result to them from the execution of the Ordinance, are sufficiently alleged on the face of the bill to entitle them to maintain the suit; provided a Court of Equity has jurisdiction of the cause, and the objections urged to the validity of the Ordinance be well founded.
These objections will be first considered; they are set forth by the bill in a very clear and forcible manner, and have been presented in the argument with very great ability and power. Indeed, the case has been most ably argued on both sides; and it is a source of regret that in the press
By the second section of the Ordinance, the Judges of the Appeal Tax Court, in the condemnation and opening of the proposed street, are required to proceed in accordance with the provisions of Ordinance No. 15, of the Revised Ordinances of 1858, approved June 5th, 1858, except as otherwise provided by the Ordinance approved February 28th, 1861. This last Ordinance merely abolished the office of Commissioners for opening streets, and conferred their powers upon the Appeal Tax Court. The exception, therefore, need not now be more particularly noticed. By the Revised Ordinance of 1858, No. 15, sec. 7, it is provided, ‘ ‘That in eyery case where it shall be necessary to effect the object proposed, that a part only of a house and lot, or of a lot, shall be taken and used, or destroyed, and the owner thereof shall claim to be compensated for the whole, the Commissioners shall ascertain the full value thereof, as if the whole lot and improvements were necessary to be taken and used for such proposed object.” It then provides for the payment to the owner of the whole of such valuation, and for the sale of the residue of the lot not necessary to be taken and used for the street; and the amount which is derived from such sale is appropriated to the payment of the expense of the improvement, thereby diminishing to that extent the cost of the work assessed upon the parties benefited.
It is contended that this provision of the Ordinance is illegal and invalid, because it is taking the property of a citizen, when it is not required, for public use, contrary to the Constitution and laws of the State. This provision did.
But, looking at this as a new question, wholly uninfluenced by any previous decision, we should have little hesitation in saying that this provision of the Ordinance is free from the objection urged. It does not sanction the taking of any property from the owner, without his consent, not necessary for the public use. If more land is taken, in any case, than is required for the bed of the street, it is always done with the consent of the owner, to whom the option is given of retaining the fragment of a lot when part is taken by the city, or of claiming compensation for the whole, and allowing the part not taken to be sold for the benefit of the parties charged with the cost of the improvement. They are not injured by the proceeding, for there can be no more’ certain mode of ascertaining the value of the part of a lot
We are also of opinion that the objection to the Ordinance stated by the bill, and presented in the brief of the appel-lees in their third point, is not well founded. This point is, that the Ordinance is invalid, because it did not provide for an appeal to the Superior Court from the decision of the Appeal Tax Court. By the terms of the Ordinance of 1858, which govern the case before us, the appeal is directed to be made to the City Court of Baltimore. The appellees insist, that by the Constitution and laws, the right of appeal to the Superior Court is granted, at the option of the paity appealing; and that it is a fatal objection to the Ordinance, that it deprives a party aggrieved of this option, and limits his appeal to the Criminal Court alone.
At the time of the adoption of the Constitution of 1851, the exclusive jurisdiction over such appeals was in the City Court; by that Constitution the same jurisdiction was conferred upon the Criminal Court. It was not given to the Superior Court by the 11th section0of the 4th Article. The general words there used must be construed as defining the original jurisdiction of the Superior Court, and do not refer to appeals from inferior tribunals, or in street cases; they are regulated by statute. By the Act of 1853, ch. 451, the Superior Court was authorized to exercise jurisdiction over appeals in street cases concurrently with the Criminal Court. We see no reason why that Act was not a constitutional exercise of legislative poAver. Bub that inquiry is not in
One more objection .to 0the validity of this Ordinance was insisted on in the argument, and remains to be considered; this is fully set out in the bill, and very clearly stated in the second point of the appellees’ brief. It arises upon the construction of the 4th and 5th sections. By the 4th section, it is directed that “in the settlement with Wm. W. McClellan, or Catharine M. Raborg, for any damages which may be awarded him or her for property condemned under the provisions of this Ordinance,” certain sums shall be de
These provisions, it is said, render the Ordinance void, because it was not competent for the Mayor and City Council to delegate this legislative power over the subject, and make the Ordinance depend for its force and efficacy upon the will of others; and because it appears from these sections that the Ordinance was not passed on consideration of public necessity and convenience; but was the result of a bargain or contract between the Mayor and City Council and the parties, whose assent is required to give it effect and operation.
The decision of this point involves considerations of much interest and importance, and by no means free from difficulty ; while on the one hand municipal corporations, having delegated to them a limited jurisdiction, and being entrusted with the power of dealing with the property and rights of the citizen, ought to be restrained within the strict limits of their authority, and when they transgress those limits, it is the duty of the Courts to declare their acts void, in so far as they have exceeded their powers; yet, on the other hand, where the exclusive jurisdiction and power to legislate upon a given subject, have been conferred by law upon such a corporation, every intendment and presumption ought to be made in support of their acts, and Courts of Justice should never pronounce them void, unless their nullity and invalidity are placed beyond reasonable doubt. The rules and principles governing Courts of Justice, when dealing with such subjects, are very clearly
The Ordinance before us, was passed in the exercise of the power of eminent domain, delegated to the corporation by the General Assembly, and defined in the Code, vol. 2, Art. 4, sec. 887. By that section, the power to lay out and open a street, “which, in their opinion, the public welfare or convenience may require,” is clearly conferred; it is to be exercised for the public good, and only when, in the opinion of the Mayor and City Council, “the public welfare and convenience require;” to their discretion, alone, the law confides the decision of the question of the propriety of opening any street; their judgment upon that question is therefore final, and cannot be examined or reviewed by Courts of Justice. The subject is confided to their judgment and discretion, which they alone must exercise, and cannot delegate to others. If an Ordinance were brought before us, passed by the Mayor and City Council, manifestly dot in the exercise of their discretion, looking to the public welfare alone,.but based upon other considerations, as the result of a bargain with individuals interested in the work, or dependent for its efficacy upon their will, or upon matters wholly extraneous to the subject of legislation, and altogether unconnected with the question, whether the public convenience required the street to he opened, or the expediency of undertaking the work. If such a case should arise, this Court would not hesitate to say, both upon the plain words of the Code, and upon the highest grounds of public policy, that such an Ordinance would be null and void, notwithstanding it might profess on its face to be passed for the public convenience alone. In our opinion, that is not the case with the Ordinance now under consid
The objection is founded upon the provisions contained in those sections, and the Ordinance must stand or fall, according to the construction of these provisions.
The 4th section does no more than provide the mode by which the damages that may be awarded to McClellan or Mrs. Raborg, shall be adjusted, retaining out of the amount so awarded, a sum previously received by them from the city under the Ordinance So. 59 of October 1858, which was an Ordinance providing for opening this same street, and which was afterwards repealed, after having been in part executed.
So valid objection can be made to this provision, no additional burden was thereby imposed upon any of the property holders. The arrangement is one founded in justice, and this Court is not at liberty to presume, that such an arrangement constituted an unfair or corrupt bargain.
The 5th section provides that the Ordinance shall not take effect until certain cases of mandamus, lately pending in the Court of Appeals, and removed thence by writ of error to the Supreme Court, shall have been dismissed, and other cases against the city, growing out of the repeal of the Ordinance of October 1858, shall have been released and abandoned; and further requires the assent of McClellan and Mrs. Raborg to the provisions of the 4th section, as a condition precedent to the Ordinance going into effect. This is not delegating to others, the discretion vested by law in the Mayor and City Council. A valid law may be passed, to take effect upon the happening of a future contingent event, even where that event involves the assent to its provisions by other parties. That was decided in the Mayor & C. C. of Balto., vs. The Northern Central R. W. Co., 21 Md. Rep., 93. The same principle applies to an Ordinance passed by a municipal corporation, provided the
We have said it is necessary to the validity of such an Ordinance, that it shall be passed only, upon consideration of the public good, and be based upon the judgment and decision of the Mayor and City Council, that the public convenience requires its passage.
By the 1st section it is adjudicated, in unqualified terms, that the public convenience requires the street to be opened. We see nothing in the other provisions to justify us in saying, that this is a mere colorable pretence, and that the Ordinance was passed upon any other ground or consideration, than that which the law prescribes, and which is left to the exclusive jursdiction and control of the "Mayor and City Council.
These conclusions are the result of an examination of the authorities cited hy the counsel in argument, all of which have been examined, hut it is unnecessary to refer to them here.
As we are of opinion that the Ordinance is not invalid, for any of the reasons set forth in the hill of complaint, it becomes unnecessary for us to express any opinion upon the question of jurisdiction; conceding the jurisdiction to exist in equity, the appellees are not entitled to relief by injunction upon the allegations of their bill.
An order will be passed reversing the order of the Circuit Court, and dismissing the bill with costs to the appellant.
Order reversed and bill dismissed.