Mayor of Baltimore v. Weatherby

52 Md. 442 | Md. | 1879

Alvey, J.,

delivered the opinion of the Court.

The present is a joint appeal by all the defendants from an order granting an injunction. But one of the defendants, Cunningham, has filed an answer responsive to the facts alleged, and the other defendants have filed a demurrer, assigning causes against the sufficiency of the hill. The complainants have made a motion to dismiss the appeal, upon the ground that all the defendants joining in the appeal have not answered, as required by sec. 21, of Art. 5, of the Code, as preliminary to the right of appeal. This motion, we think, ought not to prevail.

The section of the Code just referred to provides that an appeal may he allowed “ from any order granting an injunction, or from a refusal to dissolve the same, or an order appointing a receiver, the answer of the party appealing being first filed in the cause.” This is substantially the provision that was contained in the 3rd sec. of the Act of 1835, ch. 380, from which the 21st sec. of the 5th Art. of the Code was taken, so far as the right of appeal from orders granting or refusing to dissolve injunctions is concerned. It has been repeatedly decided, upon the construction of the 3rd sec. of the Act of 1835, that any defendant who had answered the bill for an injunction, might appeal from the order granting or refusing to dissolve the injunction, without waiting for the answer of his co-defendants. Barnes, et al. vs. Dodge, 7 Gill, 109; Alexander vs. Worthington, 5 Md., 471. The same right exists under the 21st sec. of the 5th Art. of the Code.

But the question here is, whether a demurrer can he treated as an answer, and therefore embraced within the meaning and purview of the statute, so as to enable those filing the demurrer to join in the appeal ? And upon careful consideration this Court is of opinion that the demurrer, being to the whole hill, may he taken as an answer for the purposes of the appeal. It is an answer in law, though not responsive to the facts charged in the bill. It was taken in the sense of an answer in the case of New Jersey vs. New York, 6 Pet., 323, and we think it may be taken in that sense here. If, instead of filing the demurrer, the defendants had put in an answer, regularly denominated such, expressly admitting all the facts charged, but denying the right to the relief prayed, such an answer would have been in effect a demurrer, and yet it would certainly have gratified the requirement of the statute. In all cases where any ground of defence is apparent on the face of the bill itself, either from matter contained in it, or from defects in the frame of it, or in the case made by it, the proper mode of defence is by demurrer ; and as it may be the means of preventing an useless and protracted litigation, as well as ruinous expense to the parties, it cannot be reasonably supposed that the Legislature designed to cut off this mode of defence to the bill. Besides, the requirement of the statute in respect to the filing the answer being in the nature of a restriction upon the right of appeal, it should be liberally construed in favor of the right; and especially should it be so construed when no apparent good is to be accomplished by a rigid or technical construction.

To the objection that the statutory requirement may be evaded by the resort to frivolous demurrers, it may be replied that such an abuse is not more likely to occur in regard to the use of demurrers than in regard to the ordinary mode of answering, especially where the answer may be put in without oath. By settled practice, demurrers are required to be signed by counsel, as an assurance to the Court that they are not, in the opinion of the counsel at least, frivolous, and that such a mode of defence is taken in good faith. Besides this, by sec. 102 of Art. 16 of the Code, if the demurrer be overruled, or withdrawn without leave of the Court, the party putting in the demurrer is required to pay to the opposite party ten dollars, and all costs accrued by reason of the demurrer, and to stand in contempt until such sums are paid.

In the .case of the Mayor, &c. of Baltimore vs. Gill, 31 Md., 375, the appeal was from an order granting an injunction, and there was no other answer put in than a demurrer to the bill. The Court below had overruled the demurrer, but that was only an interlocutory order from which no appeal could be taken, (3 Gill, 138, 152; Code, Art. 5, secs. 22, 24,) and the Court had not proceeded to final decree on the bill. It was the right of the defendants to stand on the demurrer, (Alex. Ch. Prac., 59,) and the appeal was taken from the order granting the injunction, and on that appeal the case was heard in this Court. It is true, no question was made here in regard to the right of appeal; but we must suppose that the able and experienced counsel engaged in the case well understood that, as the right of appeal in such case was purely a statutory right, there was no power or jurisdiction in this Court to review the order appealed from, unless the requirements of the statute, .conditional to the right of appeal, had been complied with. We entertain no doubt but that that case was properly before the Court, and we think this is properly here also, on the joint appeal of all the defendants.

The appeal being properly before us, we have no difficulty in saying that the bill does not present a proper case for an injunction. The allegations of the bill and the relief sought have reference to and are based upon what is charged to be the illegality in the acceptance of a certain proposal by the Board of Commissioners of Public Schools, or a certain committee of that Board, made to them by Cunningham, one of the defendants ; the illegality in the contract entered into between Cunningham and the Board of Commissioners of Public Schools, and the bond taken by the latter from the former for the due performance of the contract; the object of the hill being to have the execution of the contract restrained, and the whole transaction declared void, as being in violation of the ordinances of the city. All these documents charged to he void are of a public nature, and are accessible to the complainants as to any other person interested in them, and yet copies of them have not been exhibited with the bill, nor is there any reason assigned for the 'omission to exhibit them. That the Court should be required to declare all those documents illegal, or to act upon the assumption of their invalidity, upon the mere allegation of the bill, without an opportunity of inspecting them, would certainly he a most dangerous proceeding, and such as ought not to be sanctioned. It is not.for the parties to allege their construction of a written document, or the effect of it, or whether it has been executed legally and with all the formalities required by law, or whether it be of a character prohibited by law or ordinance, and require the Court to accept their allegations as true; the document itself should he produced, and as far as it furnishes evidence upon the subject-matter complained of, it should he allowed to speak for itself, and the Court draw its own conclusions. This is what both the reason of the thing and the established practice require, and there is no reason here for a departure from established practice. Nusbaum vs. Stein, 12 Md., 315; Hankey vs. Abrahams, 28 Md., 588; Shoemaker vs. Mechanics’ Bank, 31 Md., 396.

Then, again, it is not alleged and shown that there was any existing ordinance or resolution of the City Council requiring the Board of Commissioners of Public Schools to advertise for sealed proposals for furnishing supplies, or heating apparatus for school houses ; and unless there was such ordinance or resolution, then in existence, the transaction complained of would clearly not be embraced within the term's of the ordinance set out in the bill, being Ordinance No. 64, of 1813. We have been referred to no ordinance containing such requirement, and we have not been able to find any such. By the terms of Ordinance No. 64, of 1873, it is only when city officers shall advertise for sealed proposals for any public work or contract, “pursuant to existing ordinance or resolution,” that it is made the duty of such officer to lay the proposals received before the Mayor, who, with the Comptroller and Eegister, shall proceed to open them, and award, in all cases, to the lowest bidder of known capacity, responsibility, etc. If there was no ordinance in existence at the time of the transaction in question requiring the Board of Commissioners of Public Schools to advertise for sealed proposals, such as those made by Cunningham and the complainants, then, according to the allegations and theory of the bill, there was no ground for the injunction. Moreover, the subject-matter of the transaction impeached was clearly within the power and control of the Mayor and City Council, (Act 1872, c. 377, sub-ch., 16); and if it were conceded, as contended by the complainants, that the ordinances in force at the time did not confer authority on the Commissioners of Public Schools to make the contract in question, (a proposition that we by no means decide,) still, the injunction should not have gone against the Mayor and City Council. The whole subject-matter being completely within their control, in the absence of any legislative formality required, it was perfectly competent to them to have authorized or sanctioned the contract, without a previous ordinance prescribing the formalities and the agency through and by which such contract could be made. This being clearly the power of the Mayor and City Council it ought not to he interfered with or its exercise restrained. Fanning vs. Gregoire, 16 How., 524, 533.

(Decided 16th July, 1879.)

The order appealed from will he reversed, and the cause remanded to the Court below, with costs to the appellants.

Order reversed, and

cause remanded.