| Md. | Jun 15, 1848
delivered the opinion of this court.
Various grounds have been assigned by the complainant, why the injunction issued in this case, should not have been dissolved. And first, it is insisted, that the ordinance, of the 20th April, 1846, No. 49, for the opening of Msquith street, is invalid, because it is not apparent on its face, whether it was passed in execution of the powers delegated to the Mayor and City Council of Baltimore, by the act of 1817, ch. 148, or by the act of 1838, ch. 226. It is not essential to the validity of an ordinance, executing powers conferred by the legislature, that it should state, or indicate, the power in execution, of which the ordinance was passed. If it state no particular power, as its basis, judicial courtesy requires that we should regard it as emanating from that power, which would have warranted its passage. If two such powers exist, it may be imputed to either; in conformity to which its provisions and prerequisites shew, that it has been adopted. If, in these respects, in accordance w’ith both, no incongruity or injustice can result, in regarding it as the offspring of both, or either of
The allegation and offer to prove in the bill, that the public welfare or convenience does not require the widening of Jlisquith street, furnishes no ground for relief, by the interference of a Court of Chancery. By the act of 1838, ch. 226, the determination of that question is exclusively vested in the Mayor and City Council of Baltimore; and whether their judgment be right or wrong, is no subject for revision or correction in a court of equity.
The appellant seeks to sustain the injunction issued in its behalf, on the ground, that it “ had no actual notice in fact of the assessment complained of, until the attempt was made to enforce such assessment by a sale of its property.” If such fact were at all material, it is a sufficient answer to it, to state, that it is unsustained by any proof; and that the bill discloses no-such ground for equitable relief; and that for aught appearing therein, it might be true, that the complainant had full knowledge of every proceeding of the city commissioners at the time it occurred: and could, in the mode prescribed by the act of 1838, by an appeal to the City Court of Baltimore, have been amply protected and redressed against all the illegality and injustice of which it now complains. But, it is immaterial whether such “ actual notice in fact” were given to, or possessed by the complainant or not. By the act of 1838, the legislature have provided the mode, by which all persons are to be notified, whose interests are to be affected by the widening, opening, or straightening of streets in the city of Baltimore; and the time during which such notice shall be published in the newspapers. Which being complied with; ignorance thereof, in..any owner on whose property benefits have been assessed, is his misfortune or his fault, but can furnish no
Before the Mayor and City Council of Baltimore could proceed to execute the powers vested in them by the act of 1838, at least sixty days notice must be given of any application, which may be made for the passage of any ordinance, by advertisement, in at least two of the daily newspapers in the city of Baltimore. And “before any commissioners, appointed by any ordinance to be passed in virtue of this act, shall proceed to the performance of their duty, they shall give notice in at least two of the daily newspapers in the city of Baltimore, of the subject of the ordinance, under which they propose to act, at least thirty days before the time of their first meeting, to execute the same.” And it is further enacted, “ That upon the return of any assessment to be made under any ordinance, to be passed in virtue of this act, the register of the city of Baltimore, shall cause a copy of said assessment to be published for thirty days, in at least two of the daily newspapers of said city.” It is not pretended that all these publications have not been regularly made pursuant to the provisions of the act of Assembly. Against the validity of such proceedings, a want of notice in point of fact can form no objection. The law imputes notice, and will not admit testimony to disprove it, in a case like the present. The time for an appeal from any such assessment, is thirty days after the register’s publication.
The ordinance of 9th March, 1841, No. 10, sec. 6, requires sixty days previous notice of the meeting of the commissioners to discharge their duties, to be published in at least two daily newspapers of the city of Baltimore: whereas, the act of 1838, in virtue of which that ordinance was passed, required the publication of such notice for but thirty days. Without deeming it necessary to inquire, whether the commissioners have not legally executed their powers, by giving the notices specified in the act of Assembly, it may be sufficient to say, that this objection, as to the time during which the notice was given, is, of itself, of a purely legal or technical
As an authority that an appellant having failed to avail himself of the means provided by law for the redress of the wrong of which he complains, (the means in this case being an appeal to the City Court,) is without remedy in a Court of Chancery. See the case of Gott & Wilson vs. Carr, 6 G. & J. 312.
Another, and it is conceived, a conclusive objection to the injunction issued in this case, is, that by the 9th section of the ordinance of March 9th, 1841, No. 10, and of May 15th, 1846, No. 59, on an appeal from the proceedings of the commissioners, the City Court are authorized, after an examination into the same, in the mode therein pointed out, to amend or supply all defects and omissions in the return and proceedings of the commissioners, “ and alter, modify and correct the said record of proceedings in all, or any of its parts,” as it “ shall deem just and proper.” To the Court of Chancery or County Court, sitting as a court of equity, no such power is delegated; nor can it be lawfully or judiciously exercised by those tribunals. To persons aggrieved by the proceedings of the commissioners in cases like the present, the legislative enactments upon the subject have provided the tribunal and means of redress, and there only can it be successfully sought.
To sustain a court of equity, in the exercise of the power it has assumed, would, in effect, be conferring upon it appellate authority, where it is wholly incompetent to administer justice and render full and adequate relief to all concerned; on whose rights, if it act at all, it . ought to abjudicate. There is no
But if it were conceded, that the case stated by the bill, warranted the issuing of the injunction, it was rightly dissolved by the Chancellor. The allegation that the property, charged with the assessment for benefits, was a house for public worship, was responsively and positively denied by the answer; and to disprove and overrule such denial, the testimony of but one witness was offered; which was clearly insufficient for that purpose.
Whether the testimony of that witness, unaffected by the answer, shewed the house in question, to be such a house for public worship as was included in the exemption contained in the ordinances referred .to, it is deemed unnecessary to consider.
The order of the Chancellor dissolving the injunction in this case is affirmed with costs; and the bill of complaint of the appellant, is dismissed with costs, both in this court and the court below.
DECREE AFFIRMED.