Bouis v. Mayor of Baltimore

Boyd, C. J., delivered the opinion of the court. This: is an appeal from a decree of the Circuit Court of Baltimore City, sustaining a demurrer to a bill of complaint filed on the 6th day of January, 1920, by the appellant against the appellee and dismissing said bill of complaint. Amongst other relief asked for in the bill was an injunction, which was directed to be issued the same day the bill was filed. Inasmuch as there were a number of exhibits which were not filed before the injunction was issued, there was error in directing it to- be issued, and as no other relief could have been granted under the bill in the absence of some of the exhibits, the demurrer would necessarily have been sustained.

But on the 15th of November, 1920, a petition was filed asking leave to file copies' of certain proceedings of the Commissioners for Opening Streets, plats and ordinances, which were involved in the case, and the same day an order was passed granting-leave to file the exhibits referred to as part of the bill of complaint, without dissolving the injunction theretofore issued, and providing that when filed they might stand and be treated as part of the bill. They were filed the same day and, without meaning to hold that filing them at that time was sufficient to avoid the effect of the demurrer previously filed, or that the Court could continue the injunction, which was issued before they were filed, we will pass upon the main questions which we understand were intended to be raised by the demurrer. Three ordinances were passed by the appellee in reference to what is called Gwynn’s Falls Parkway, which is intended to connect Gwynn’s Falls Park with Druid Sill Park. Those ordinances are No. 678, approved April 25, 1911, and No. ²⁸⁷ 169 and Ho. 170, approved July 14, 1916.

The titles of them are as follows: “Ho. 678.' “An ordinance to condemn and open Gwynn’s Falls Parkway, a boulevard one hundred and twenty feet wide, from the intersection formed by the southwesternmost side of Liberty Heights Avenue (formerly Old Liberty Road) and the southwesternmost side of Reisterstown Turnpike Road to the outline of the parcel of land conveyed to the Mayor and City Council of Baltimore by John B. Roberts, etc., by deed dated October 21st, 1907, and recorded among the Land Records of Baltimore City in Liber R. O. Ho. 2378, folio 354, etc., in accordance with a plat thereof filed in the Office of the Commissioners for Opening Streets on the 17th day of March, 1910, and now on file in said office.” “Ho. 169. “An ordinance to condemn and close several portions of Gwynn’s Falls Parkway, as now in process of opening, between the Western Maryland Railroad and Liberty Heights Avenue, and between Allendale Street and Clifton Avenue, in accordance with plats thereof filed in the Office of the Commissioners for Opening Streets on the 12th day of February, 1916, and now on file in said office.” “Ho. 170. “An ordinance to condemn, open and relocate Gwynn’s Falls Parkway, between the Western Maryland Railroad and Liberty Heights Avenue, and between Allendale Street and Clifton Avenue, in accordance with plats thereof filed in the Office of the Commissioners for Opening Streets on the 12th day of February, 1916, and now on file in said office.” The plaintiff owned the leasehold interest in a rectangular lot of ground, at the northwest comer of Ohelsea Street and ²⁸⁸ Beech Avenue, fronting sixty feet on Chelsea Street, with a depth of about a hundred and twenty-five feet on Beech Avenue, subject to a gpround rent of $150 per annum, and also a lot immediately adjoining it on the north, of the same frontage and depth. The former is improved by a frame dwelling, and the other lot is vacant. The theory of the plaintiff is that the ordinances in question are void, and therefore the fact that he did not take an appeal from the decision of the Commissioners for Opening Streets does not prevent him from ashing the aid of a court of equity. If it be true that the defects relied on were not mere irregularities, but made the ordinances void, there can be no question about his right to go into equity.

Ritchie on Mun. Condem., Sec. 194 and cases cited. We will, therefore, determine whether they were void. 1. It is contended that ordinance No. 678 is void because the title does not correctly describe the subject-matter, and that the other two ordinances, being dependent upon it, fall with it.

Section 221 of Article 4, Pub. Local Laws, entitled “City of Baltimore,” provides that: “Every ordinance enacted by the city shall embrace but one subject, which shall be described in its title.” We have seen above what the title is, and have m> doubt as to its sufficiency under the many decisions of this Court in reference to a similar provision in the Constitution of the State concerning titles of statutes. See also Baltimore v. Wollman, 123 Md. 310 . 2. It is contended that Nos. 169 and 170' are void for the further reason that one of the preliminary notices required was published in German, in a German newspaper, instead of in two papers published in English.

We held in Bennett v. Baltimore, 106 Md. 484 , that: “It is well settled as a general proposition in this country that in the absence of a direction to the contrary the publication of a notice required by law to be made must be in the English language and in a newspaper published in that language.” At its next session the Legislature passed the Act of 1908, Chapter 142, which is now Section 222-A of the Charter of Baltimore of 1915. ²⁸⁹ It provides: “That whenever the Mayor and City Council of Baltimore, or any official, officer, employee, agent or agency thereof, shall he required or authorized under the provisions of any general or local law, or ordinance, now in force or hereafter to be enacted or adopted, to publish a notice of any description whatsoever in more than one newspaper, one of such newspapers, in the discretion of the said municipal corporation or of the siaid official, officer, employee, agent of agency thereof, may be a newspaper published in the German language,” etc. The bill does not show who caused the notices to be given by the advertisements — it is only said that it was done by' “some person or persons to your orator unknown.” We cannot agree with the appellant that under Section 828 some “official, officer, employee, agent or agency” of the city could not have caused the advertisements to be published, or, if so-, that they would not be within the provisions of the Act-. Section 828 of the Charter not only provides that “notice shall be given by advertisement published twice a Week for two consecutive weeks, in two- of the daily newspapers in the said city,” but that “notice shall also be given by filing, in the office of the Commissioners for Opening 'Streets, on or before the first day of such publication, a map,” etc. It is possible, if not probable-, that some one connected with the office of the Commissioners for Opening -Streets, or other agency of the city, may have had them published. It is said in -Section 32 of Ritchie on Mun. Gondem., that “application for an ordinance to authorize the opening, widening or closing of streets may be made at the instance of the city itself, or at the instance of the property holders,” and we can have no doubt about that.

It may well happen that the city authorities may desire to have a street opened, widened or closed. So without deeming it necessary to determine in this case whether1 the language of the Act of 1908, Chapter 142 (Section 222-a of Charter) is not sufficiently broad to include such applications as these, even if shown to be made by property ho-ldera, as there is nothing in this case which requires us to do so-, we are ²⁹⁰ of the opinion that the objections to ordinances Ho. 16-9 and Ho. 170 on the ground that one of the advertisements was published in a German newspaper cannot be sustained. 3. It is also- contended that the proceedings are void because the preliminary advertisements on which the several ordinances are based did not comply with Section 828 of the City Charter, in that they did not give the length and width and the present and intended width of the Parkway at Beech Avenue. Ho errors in the descriptions are referred to, and unless there were some substantial errors which were misleading and material, we cannot understand why any competent surveyor or engineer could not determine the length of the Parkway and the present and intended width of Beech Avenue.

It may be true that a property holder who is not a surveyor or engineer could not readily tell from that long advertisement just what the width of Beech Avenue was, and was to be, without a plat or map of some kind to guide him, but the same might be said of many advertisements of mortgagees!’ or trustees’ sales or other advertisements in use. A casual reading of the description in Ho. 678, for example, would inform a man of ordinary intelligence that the proposed Parkway was to pass the corner of Chelsea, Street and Beech Avenue and that the general width of the Parkway was to- be 120 feet, varying from that at certain points. In Riggs v. Winterode, 100 Md. 439, 447 , we quoted from Baltimore v. Bouldin, 23 Md. 370 , where it was said: “It would be fatal to the objects for which these powers are delegated by the General Assembly of the State, to require all the notices of the application for ordinances to carry into effect these powers to specify with technical precision the objects for which the application will be made.” That is still time, notwithstanding the changes made in the Charter, and now in Section 828. But if there be any question about the property owners being able to- understand from the advertisements .where the proposed Parkway wasi to be, the map- filed wasi certainly sufficient.

The plaintiff only filed, under the leave of the Court ²⁹¹ of November 15, 1920, such parts! of the map as showed the property of the plaintiff and that near it, but the width of Beech Avenue, as it was originally, and of the Parkway as proposed, as well as the length, etc., could easily be ascertained from the maps in connection with the advertisements. It is true that the statute provides that notice shall be given by advertisements to be published as therein directed, and also by filing a map, but the statute did not mean, and we did not intimate in Whitely v. Baltimore, 113 Md. 541 , or elsewhere, that the advertisement could not refer to the map. and make it a part of it. In Burk v. Baltimore, 77 Md. 471 , this Court, held that the notice and ordinance passed in pursuance thereof must conform in substance, and that “it was! entirely proper, instead of trying to give a minute and accurate der seription, to provide in the ordinance that Whitelock Street (the one then in question) should be condemned and opened ‘as located on said plat.’ ” Again it was said: “The ordinance does not undertake to define with accuracy the lines of the proposed street, the plat being referred to for that, purpose, and if there should be any variance between the courses and distances and measurements contained in the ordinance and those set forth in the plat, the latter will govern. This is the rule where a, plat or map is referred to in a deed, and we can see no good reason why the same rule should not apply here.” In each of the notices in this case, the plat was! referred to and attention was called to the fact that it was on file.

We are aware that the Charter provision for giving the preliminary notice was changed, by the Act of 1906, Chapter 328, from what it was when the Burk case was decided, and in that ease an ordinance was attacked, but what was. said there in reference to the effect of a map is still applicable. Eiling the.map does not do away with publishing the notice as required, but it can certainly be used when referred to. in the advertisement to make it more readily understood. The trouble, if any, in this case would seem to be too much notice. While that is not before us, and hence w’e need not determine ²⁹² it, we would not want to be understood as intimating that it is necessary to- publish in the notice the courses and distances from beginning to end.

As the course of the Parkway was changed at about the location of plaintiff’s property, and elsewhere, from the course of Beech Avenue, and as several circles were to be included and at some places it was wider than 120 feet, it was doubtless deemed proper to publish the courses and distances, but whether done or not, it is clear that the map; which is required to be filed on or before the first day of the publication, can properly be referred to, and can be used as maps filed with deeds and other instruments are frequently used, to make the description in the published notice more easily understood. 4. We can have no difficulty about treating a parkway or boulevard as a street, in condemnation proceedings under the Baltimore Charter. Parkway is defined as “a boulevard; a street of special width, which is given a parklike appearance by planting its sides or center,