Swann v. Mayor of Cumberland

8 Gill 150 | Md. | 1849

Chambers, J.,

delivered the opinion of this court,-

The return to the certiorari, to which alone we must look for the facts on which the questions depend, which are involved in this case, sets out the act of Assembly of 1815, ch. 136, the petition and proceedings before the mayor and council, the ordinance professing to execute the authority given by the act of Assembly, and the warrant in nature of an execution against the appellants.

The act of 1815, ch. 136, authorises the mayor and council to improve the streets, or parts thereof, on application of the owners of two-thirds of the property thereon, and to collect from each owner, by a warrant in nature of a fieri facias, his proportion of the expense. A plat is returned, and referred to in the proceedings as proof of the location of Washington street, and the number of owners, and the extent of their possessions, by which plat it appears that the said street, commencing at the Wills creek bridge, runs too squares beyond Spruce alley.

The return also sets out the petition, which asks for the improvement of Washington street, from the bridge over Wills creek to Spruce aliey, and also the names of the subscribers thereto, and the calculations and estimates showing by what data they regulated their proceedings, and proving, what was not denied in the argument, that in estimating the proportion of property holders, reference was had to those only on that part of Washington street extending to Spruce alley, and not the whole length of the street, as described on the plat, and that the owners of two-thirds of the property on the whole street did not apply for the improvement.

The ordinance, which is also set, out at largo, is entitled, “an ordinance to grade,” tfcc,, “ Washington street, on the west side of Wills creek;” and the enacting clause provides, “that Washington street shall be graded.” It is alleged in the recital, that “ the owners of two-thirds of the property on Washington street, (commencing at Wills creek bridge, and terminating with the property of the heirs of Robert Swann, deceased,) have petitioned,” &c., and no allusion or reference is elsewhere made in the ordinance to a part only of the street. It is manifest, therefore, on the face of the proceedings, that an ordinance has been passed for the improvement of Washington street, west of the bridge, on the application of persons professing to be owners of two-thirds of the property on a part of it, and without the application or assent of the owners of two-thirds of the property on the whole line of the street dir, reefed to he improved.

We think the objection to this proceeding is fatal. The act of 1815, in terms requires, as a prerequisite to the exercise of the authority conferred upon the corporation, the assent-of the owners of two-thirds of the property on the whole line of the street or alley to be improved. If a pari only, is to be improved, the act enables the corporation to gratify an application made for that object by the owners of two-thirds of the property lying on that part, by an ordinance directing that particular part of the street to be improved. They can only order the whole street to be improved by an application from two-thirds of the properly owners on the whole street. The city authorities have no power in this respect, but in virtue of the act of Assembly, and their proceedings, as in all other cases of a special limited jurisdiction, must conform strictly to the authority conferred on them.

The ordinance, therefore, was not authorised, and could confer no power on the commissioners to improve the street, or upon the bailiff to collect the sum claimed from the appellants as their proportion of the expenses.

In this view of the case, it is unnecessary to decide the question which was discussed, as to the authority of the commissioners of the county to express their assent as owners of the public property situate on said street—the court house and the jail.

In any event, the amount of property represented by the petitioners, would be less than two-thirds of all on the whole street.-; and, therefore, whether the commissioners are to be regarded as owners within the view of the act of 1815, or not, Would not affect the result.

The question, whether or not this appeal would lie, was disposed of in the preliminary stage of the argument. An appeal is given by our statute law, in any civil case in which a writ •of error will lie. As a general rule, an appeal will lie in any civil case where the court below proceeds under its usual and general jurisdiction.

It would be otherwise in a case where a special jurisdiction was to be given to the county court, to be exercised in a peculiar mode, and not to be proceeded in according to the course of the common law, or where an appeal is given to it from some inferior tribunal.

In this instance, (he court below acted in virtue of its ordinary jurisdiction, well known as a matter of common practice as well in the courts of this State as in the king’s bench in England. The process by certiorari, is the appropriate and well known mode by which the superior courts examine into the authority of an inferior tribunal, and ascertain whether it has transcended the special powers to which it is limited by law. Whether any error is to be found in the proceeding of the county court, in the exercise of such, its ordinary jurisdiction is clearly a proper subject of enquiry on appeal.

We, therefore, direct the judgment of the county court to be reversed, and the proceedings of the mayor and councilmen of the.town of Cumberland to be quashed, for want of jurisdiction.

JUDGMENT REVERSED.