48 Md. 272 | Md. | 1878
delivered the opinion of the Court.
A municipal corporation has the right to abandon any contemplated improvement, and repeal at its pleasure any ordinance providing for the same, and after such abandonment, property owners cannot compel the corporation to take and pay for property condemned for such purpose, nor does any action lie against the corporation for such abandonment merely. These propositions have been settled by many decisions of this Court. Graff vs. Mayor, &c., 10 Md., 544; McClellan vs. Graves, 19 Md., 351; Norris vs. Mayor, &c., 44 Md., 606. But the same authorities hold, that where the owner of property has suffered loss or damage by the acts or delay of the corporation in any such case, he is entitled to redress for the same, and that is the foundation of the action in the present case.
The plaintiff is the owner of a tannery on Jones’ Falls, in the City of Baltimore, located between Front street and the stream, and between Gray and Hillen streets, and this establishment was within the lines prescribed for the improvement of Jones’ Falls, by the 12th section of the ordinance on that subject of the 24th of April, 1812, and the record shows that on or about the 6th of January, lS^, the Commissioners appointed' under that ordinance came to his establishment with their clerk and janitor, and exhibited to him a map or drawing of the improvement, including his premises, and notified him that they had condemned his property and would require possession of it at the earliest moment, as it was within that part of the section comprising it on which they desired to begin their work. They also further notified him that as from the nature of the tanning business, it would take him some time to work up his stock and close up his business so as to be able to give possession of his property to the city, he must so regulate his business as to bring it to a close at the earliest moment, and take in no new stock of
In consequence of it, and for no other reason, he at once commenced closing out his business, which he would otherwise have prosecuted as usual, and in thus closing out he did about half work for six months, and no work at all for about a year afterwards until the latter part of April, 1874, when he made up his mind the improvement would not go on, and at once commenced making arrangements for procuring bark and resuming his work. It is for the loss and damage occasioned by this suspension of his business, that he now sues, and it is obvious that his right to recover depends entirely upon the question whether it was within the scope of the authority vested in these Commissioners to give the notice and make the demand or request referred to ; for it is very clearly settled that one who contracts or deals with the agents or officers of a municipal corporation, must at his peril take notice of the limits of their powers. Mayor, &c. vs. Eschbach, 18 Md., 276; Mayor, &c. vs. Reynolds, 20 Md., 1; Mayor, &c. vs. Kirkley, 29 Md., 85 ; Horn vs. Mayor, &c., 30 Md., 218. We must therefore examine the laws and ordinances relating to this improvement, and determine the extent of the powers and authority thereby vested in these Commissioners.
After the great destruction of property in that vicinity occasioned by the flood of 1868, efforts were made to have the channel .of this stream flowing through the city, so changed, widened, straightened and improved, as to prevent the recurrence of similar disasters. A plan for this improvement was made by Mr. Tyson, which was adopted by the Mayor and City Council, and Ordinance No. 13, of 1870, approved January 31st of that year, was passed, appointing three named Commissioners to carry it into
Let us now examine this ordinance of 1872. It consists of twenty-two sections, and a general review of its main provisions is essential to an understanding of the powers it conferred upon the Commissioners. It provides first for the appointment of three persons to be styled the “Board of Commissioners for the Improvement of Jones’ Falls,” fixes their salaries, prescribes their oath of office, gives them power to appoint a clerk, who shall keep a full and true record of their proceedings, also a chief engineer, who shall act under their supervision, and discharge such duties as shall be prescribed by this ordinance or by .the said Board, and by section seven it is enacted, “that the said Board of Commissioners shall have, and they are hereby vested with the general charge, superintendence and control of the execution of the plan for the improvement of Jones’ Falls hereinafter mentioned and prescribed, and shall have all the powers necessary or proper to carry out said plan and accomplish the said improvement.” The
Such are the powers conferred on these Commissioners; and such are the duties they were required hy this ordinance to perform. It cannot be successfully contended that the ordinance itself is in any respect in excess of the powers granted to the city hy the Act of 1810, ch. 115. But does' the ordinance give these Commissioners the authority to notify a property owner before his property is actually paid for under the condemnation, to close out his business and prepare to deliver possession, so as to hind the city for any loss accruing to him hy reason of his obeying such notice and demand? The authority to do so is rested mainly upon the general terms of section seven, hy which the Commissioners are vested with the general charge, superintendence and control of the execution of the plan for the improvement hereinbefore mentioned and prescribed, and which declares they shall have “all the powers necessary and proper to carry out said plan and accomplish the said improvement.” The terms here- employed, it must be admitted, are very broad and general, but it must be remembered that language, however general in its form, when used in connection with a particular subject-matter, will he presumed to he used in subordination to that matter,
In the light of these well settled principles and rules of construction, we are unable to say that the authority insisted on is conveyed hy the general language of this section. The mode of condemning property and of assessing and settling the damages are specially pointed out, and the duties of the Commissioners in that respect are plainly defined. We cannot suppose it was the intention of those who enacted this ordinance, that the Commissioners should have power to enter into any arrangements, or contracts with, or do any acts towards, property owners hy which any other claim for damages could accrue to them than for the sums so to he ascertained and settled. Was it contemplated that every property owner, doing business in that locality, might have two sets of claims against the city, one for the value of his property ascertained by the condemnation, and the other for leaving it, or quitting bis business upon preliminary notice, given by the.Commissioners? It is clear beyond question, that no property owner could be deprived of the use or possession of his property, until he had been paid for it, or tendered the sum ascertained by the Commissioners, or by a jury on appeal, and it follows that he was not hound to obey any notice to quit or to close out his business-, given hy the Commissioners before such payment or tender had been made. It is equally clear, that upon such payment or tender, the city could immediately take possession and oust the owner, no matter what might be the condition of his property or the state of his business. A power therefore, the exercise of which would, so far as we can see, result in no practical benefit to the city, a power which could not he enforced, and need not be obeyed, we cannot regard as “ necessary or proper” to carry out tbe plan and accomplish the improvement contemplated and provided for hy this ordinance. No other
It appears from the record, that the notice was given on the 6th of January, 1873, before any formal condemnation of the property had been made. That condemnation, and the fixing of the value of the property by the Commissioners, was not completed until the 15th of the following August. The plaintiff acquiesced in the assessment made by the Commissioners, but other parties appealed, and all of these appeals had not been finally disposed of, before the ordinance was repealed. There was, hence, no such unauthorized delay on the part of the city, in abandoning the work as would give the plaintiff a cause of action on that ground, within the doctrine settled in the case of Norris vs. The Mayor. Finding therefore in the record no ground upon which the action can be sustained, we shall reverse the judgment without awarding a new trial.
Judgment reversed, and new trial refused.