61 Md. 297 | Md. | 1884
delivered the opinion of the Court.
Whatever power can be properly exercised by the municipal authorities of the city of Baltimore over the rights and property of the citizen, under the denomination of police regulations, must be derived from the Legislature of the State. It must be by express grant, or by fair and reasonable intendment; for otherwise the trades and business of the people would be at the mercy, and be made dependent upon the caprice, of those who might ex
The Legislature has delegated to the city of Baltimore very large and ample powers to preserve health, and to prevent and remove nuisances, and also to regulate the places for carrying on lawful but oifensive trades; but this power, as ample as it is, does not authorize the exercise of an unlimited control over the trades and business occupations of the people. The terms of the grant of power by the State to the city are, that the Mayor and City Council shall “ have power to pass ordinances to preserve the health of the city, to prevent and remove mdsances, and to prevent the introduction of contagious diseases within the city and within three miles of the same, and may regulate the places for manufacturing soap and candles, the erecting of slaughter-houses and distilleries, and where every other offensive trade is carried on.” Code, Pub. Local Laws, Art. 4, sec. 797.
It was under the power thus granted that Ordinance No. 118 of 1882, was passed, to be added as section 43J to Art. 23 of the City Code. That ordinance provides “that from and after May 1st, 1883, it shall not be lawful for any person or persons, or body corporate, to work, operate, or continue in use, for the purpose of burning oyster shells or stone lime, any kiln situated or erected within the limits of the city of Baltimore, under a penalty of twenty dollars for each and every day such kiln may be
It will thus be perceived that by this sweeping ordinance the entire industry of lime burning within the limits of Baltimore is at once forbidden and destroyed. Though the kilns may be on the remotest outskirts of the city, and beyond the reach of habitation, where they are not now, and may never become nuisances, and from whence they could in no manner affect the health of the city, they are all declared to be unlawful, and are forbidden to be continued. A stronger exertion of municipal power has seldom been attempted to be exercised over the property and the law'ful pursuits of the citizen; and to support the ordinance by which such results are designed to he effected, the authority in the city must appear to be plain and unmistakable.
The indictment in this case was found under Act of 1880, ch. 211, for the alleged violation of the Ordinance No. 113, just recited; and it simply charges, after reciting the ordinance verbatim, that from the 1st to the 18th of May, 1883, the defendant “ did unlawfully work, operate, and continue in use, a certain kiln, situate ivithin the limits of the city of Baltimore, for the purpose of burning oyster shells and stone lime, contrary to the ordinance in such case made and provided.” There is nothing alleged to •constitute the lime kiln of the defendant a nuisance, nor is it alleged that it is a nuisance per se, either as to health, comfort, or danger to property. It is simply alleged, as will be observed, that the defendant operated his lime kiln within the limits of the city, contrary to the terms of the ordinance, which absolutely prohibits the operation of any lime kiln, without reference to its local surroundings, within the limits of the city, after a certain date.
The defendant demurred to the indictment, as it was his right to do, and thereby admitted the fact that he had operated his lime kiln as charged. Indeed, he was' re
Now, it is well known and understood, that the burning of lime is not an unlawful business or trade, and is not a nuisance in its nature per se, irrespective of the location. On the contrary, it is one of a multitude of most useful and necessary processes for the benefit of society' and for its material improvement, hut which may, from mere local conditions, become nuisances. Or, as said in Aldred’s Case, 9 Co., 59 a, “the building of a lime kiln is good and profitable; but if it he built so near a house that when it. burns the smoke thereof enters into the house, so that, none can dwell there, an action lies for it." But neither in the ordinance, nor in the indictment founded thereon, is there anything apparent that justifies the conclusion that all the lime kilns within the limits of the city, and which have been prohibited operation, are in fact nuisances. And not being nuisances in their nature, irrespective of their local surroundings, it is very clear that there has been no authority conferred upon the Mayor and City Council, to make them nuisances, either to health, comfort, or property, by simply declaring them so. In the absence of such express authority, the principle is too well settled to require the citation of authorities for its support, that a. particular use of property declared a nuisance by an ordinance of a municipal corporation, does not make such use a nuisance, unless it he so in fact, according to the common law or statutory definition of nuisance. The ordinance in question however, does not in terms declare lime kilns
Whether a particular lime kiln is a nuisance or not, is a mixed question of law and of fact; and an indictment for maintaining such kiln as a nuisance, should charge the facts necessary to bring it within the definition of a nuisance, or, at least, within the power conferred by the statute, to suppress it. Here the power conferred by the statute and • attempted to be executed by the general prohibitory ordinance, cannot be taken to authorize the extra judicial condemnation and destruction of that as a nuisance which, in its nature, situation, or use, is not or may not be such. 1 Dillon on Mun. Corp., (3d Ed.,) sec. 374, and the cases there cited; Wood’s Law of. Nuisances, sec. 740. To have adjudged the indictment good, would have required the Court to assume that all the lime kilns within the limits of the city were nuisances per se, without regard to their location, or that they were allowed by the statute, to be condemned unconditionally. This the Court would not have been justified in doing, as matter of law; nor would the Court have been justified in assuming that all such lime kilns would necessarily become nuisances, and were therefore subject to the power of prevention.
In the case of Glenn vs. Mayor, &c. of Baltimore, 5 Gill & John., 429, this Court, in speaking of the power of the city authorities to abate nuisances, said : “ Thus, whether the various manufactories spoken of in the 17th section of the ordinance, are calculated to endanger the habitations,
Nor can the ordinance in question be sustained under that clause of the section of the charter, before recited, which authorizes the city to “ regulate the places for manufacturing soap and candles, etc., and where every other offensive trade is carried on.”
That power assumes the existence of such trade, and that they may be carried on within the limits of the city. The power delegated is simply to regulate the places where they are carried on, and not to forbid their being carried oh, or to destroy them altogether. It is assumed in the power granted that such trades will not be carried on under such condition of things as to constitute them nuisances, and thus bring them within the scope of the general power to prevent or remove nuisances; but that they will be carried on at proper places, subject to the regulating power of the city. And such being the case, it is well settled that a power simply to regulate does not
Upon the whole, we are of opinion that the Ordinance No. 113, designated as section 43 J in Article 23 of the Baltimore City Code, is void, for the reasons we have stated; and consequently the demurrer to the indictment, founded upon such ordinance, was properly sustained by the Court below, and we must, therefore, affirm the judgment.
Judgment affirmed.