Mayor of Baltimore v. Porter

| Md. | Apr 9, 1862

Goldsborough, J.,

delivered the opinion of this court.

For several years prior to the incidents which induced the controversy in this case, the city of Baltimore was blessed with a prosperity strikingly illustrated by its material expansion. The waste places within her jurisdiction were, day by day, disappearing under the advance of this expansion. Her highways were being extended, and were affording pninterrupted intercourse to her citizens from one extremity of the city to the other. This state of prosperity begat a corresponding public feeling, from which, in 1852, arose the determination to lay out and establish an avenue one hundred feet wide on the confines of the city, to be denominated the North Avenue. In that year, certain real estate was condemned, to form the bed of this improvement, beiween Pennsylvania and York Avenues, under an ordinance of the corporate authorities, by which it. was declared that the opening and condemnation of North Avenue, as a public highway, would be a great public improvement and result advanlageously to the com munity Though the bed of the avenue had been condemned for several years as a public highway, it continued useless for that purpose for Want of authority to grade it. It became, therefore, necessary to obtain the passage of a law, under the provisions of which, it could be made practically useful as a great public convenience. And for this purpose the Act of 1856, ch. 164, was passed. After the passage of that Act, a number of the proprietors of land lying upon the avenue, representing themselves to be “the owners of a majority of front feet,” made application to the city commissioner to have the same graded. Upon this application, the city commissioner went on to have the work done, and assessed upon the property a tax to pay the cost and expense of the grading, making such assessment upon all the adjoining property equally, according to the number of front feet, in the same manner as m the ordinary case of a street lying wholly within the limits and jurisdiction* of the city, and without making any ascertainment of damage to the owners, or any of them. He then proceeded to place the tax list in the hands of the collector, who advertised the property of the appellee for sale, on account of its non-payment.

An injunction was granted by the Circuit court, at the instance of the appellee, to prevent the sale, and this appeal was taken from the order of the 2nd of June 1860, continuing the injunction.

A great deal of evidence was taken in the case upon the disputed question, whether the application, for the grading of the avenue, had been signed by persons owning a majority of the feet fronting thereon, as required by law, and also for the purpose of showing the manner in which the work of grading had been done, and the consequent damage and injury alleged to have been suffered by many of the adjoining proprietors.

But, in disposing of the present appeal, it is quite unnecessary to decide upon those questions, or to pass upon the various exceptions to the evidence presented in the record. The affirmance of the action of the Circuit court, may be properly rested on the broad ground, that the city commissioner had no legal power or authority to cause North Avenue to be graded, and that all his proceedings in the premises, were coram non judice and void. This conclusion is based on the construction of the Act of 1856, ch. 164.

By reference to the pre-existing laws and ordinances, it will be seen, that the two systems for opening and condemning streets, and for grading and paving them, are essentially different from each other; they are provided for by different laws and ordinances, executed by different officers, and governed, by different rules and regulations.

This will plainly appear by reference to the Revised Ordinances of 1850, Nos. 15 and IT, and the Acts of Assembly under which they were respectively adopted. In passing the Act of 1856, ch. 164, the Legislature seems to have blended the two systems, and hence, some difficulty has arisen in giving such construction to that Act as will make all its provisions harmonize with each other. In its title it is declared to be supplementary to the Act of 1838, ch. 226, which relates to opening and condemning streets. In its first section it contains, like the Act of 1838, provisions for ascertaining the damages as well as the benefits, which will be caused to the owners of adjoining lands by the grading, and requires, as a preliminary to any proceeding under the law, that the Mayor and City Council shall determine the proposed work to be consistent with the public good. And the fourth section provides that an appeal shall be granted to the owners of property, from the assessments of benefit and damage arising from the grading or paving of the avenue.

In these respects the law is very similar, in its provisions, to the Act of 1838, and wholly unlike the existing laws and ordinances relating to the grading and paving of streets in the city of Baltimore. In the action that was taken by the city commissioner, those piovisions of the law were wholly disregarded, and the record shows that he proceeded in the same manner as is contemplated by ordinance No. 15 of 1850, and as in the ordinary case of a street lying in the city, with the property adjoining thereto, on both sides, within the city jurisdiction. Inasmuch as the property adjoining North Avenue, on one side, lies in the county of Baltimore, it. was not competent for the Mayor and City Council to make any assessment on such property for the expense of grading and paving it, without some further legislation on the subject: hence the necessity for the Act of 1856.

The great extent and cost of the work, the irregularity of the surface over which it passes, with, the very great embankments and excavations required, and the consequent damage that might result to some of the adjoining property from the grading, no doubt suggested to the Legislature the propriety of making different provisions of law, from those applicable to the ordinary cases of grading and paving a street, lying wholly within the limits of the city. However that may be, it is sufficient to say, that, independent of the Act of 1856, the city authorities possessed no power to grade the North Avenue.

Their powers being derived under that Act alone, within its provisions are to be found prescribed the rules and directions, to which the Mayor and City Council must conform in executing those powers.

It was not a case to which the ordinance No. 15 of 1850 was at all applicable; and the city commissioner acting under that ordinance, possessed no jurisdiction or authority to act in the matter.

The power is conferred, by the Act, on the Mayor and City Council, and cotild be executed by them, only in the way in which all their powers are executed, by an ordinance adopted for that purpose, prescribing the officer by whom, and the manner in which, the objects of the law should be accomplished; and providing the time and manner in which an appeal might be had, by the parties interested.

Being a work of great magnitude and expense, involving not only private interests, but also of public concern, the Act’ requires that the Mayor and City Council shall first determine that it is “consistent with the public good.”

No such preliminary determination was made, nor was the application addressed, to them or pny action had by them upon the subject.

Under these circumstances, it is impossible to say, that the action of the city commissioner was authorised by any law or ordinance, without which, the payment of the tax assessed by him, cannot be enforced by a sale of the appellee’s property.

It was urged, that as the appellee signed the application to the city commissioner for grading the “North Avenue,” he should be precluded from taking advantage of the want of authority to perform the duties under the Act of 1856. We do not think that this proposition is tenable. If the appellee was ignorant of the duties of the commissioner, and signed an application which it was not lawful for that officer to entertain, it would not preclude the appellee from availing himself of the nullity of the subsequent proceedings, certainly, it would not debar him from interfering to stop an unlawful sale of his property, which would have been one of the consequences of the act of the commissioner.

The principle of estoppel has no application to the case. The law requires the application of the owners of a majority of the feet of property fronting on the avenue, before any steps can be taken by the corporation to have it graded; but, because the appellee has signed such an application, it surely cannot be succesfully maintained, that, he assented that the work should be done in any other way than the law requires, or if he had so assented, that such assent could confer any power upon the city commissioner, not possessed by him under the laws and ordinances of the city.

The ordinance afterwards passed, on the 9th day of December 1859, to confirm the grading of North Avenue, not being authorised by any law, was not of binding force, and could not have the effect of ratifying the acts of the city commissioner, or in any manner change the rights of the parties litigant.

In the argument of the case, the question of jurisdiction was argued with great ability. The counsel for the appellant insisted that a court of chancery has no jurisdiction to grant the relief asked for in the bill, the only remedy being in a court of law, by an appeal from the proceedings of the city commissioner, under the Act of 1856, or by certiorari, and the case of the Methodist Church vs. The Mayor & City Council of Balt., 6 Gill, 391, was referred to in support of this position. But that case is unlike the present. There, the street commissioners were acting within the scope of their authority, and if the allegations of the bill were true, the acts complained of were but irregularities, subject to be reviewed, on appeal, by the tribunal appointed by law for that, purpose. Here the city commissioner acted without any lawful authority. His acts are not merely irregular, but void. In 8 Howard, 543, the Supreme court say: “The rule is, that where a limited tribunal takes upon itself to exercise a jurisdiction, which does not belong to it, its decision amounts to nothing, and does not create .a necessity for an appeal.”

(Decided April 9th, 1862.)

The principles on which a court of equity interposes by injunction to arrest the illegal proceedings of public functionaries, are stated by Lord Chancellor Cottenham in Frewin vs. Lewis, 4 Mylne & Craig, 19 Eng. Ch., Rep., 249, cited with approbation by Mr. Justice Story, in 2 Story’s Eq., sec. 955 a. In Holland’s case, 11 Md. Rep., 186, the jurisdiction of the court of chancery was maintained, under circumstances and upon grounds which completely cover this case.

Order affirmed and injunction made perpetual.