Bouldin v. Mayor of Baltimore

Eccleston, J., delivered the opinion of this court. This bill was filed, by the appellants, in the Circuit Court, for Baltimore city, on the 16th of July 185T, against the appellees, The Mayor & City Council of Baltimore & others; in which it is alleged tiro complainants are owners of certain lots of ground, binding on Bell-Air road or Bell-Air avenue, in the city of Baltimore; which lots were advertised to be sold, for the payment of assessments made thereon, undelproceedings in relation, to grading and paving part of Bell-Air avenue. The bill alleges that these proceedings are illegal and void, and prays for an injunction to prohibit the sale of the lots. Several grounds on which the complainants charge the said proceedings to be illegal and void, are set forth in the bill, but for the purposes of this case the notice of one will be sufficient, which is, that the application to pave was not signed by the proprietors or owners of a majority of the feet of ground binding and fronting on that part of Bell-Air avenue, proposed to be paved.

In the case of Holland vs. The Mayor & C. C. of Balto., et al., 11 Md. Rep., 188 , this court established the doctrine that unless the owners of a majority of the feet fronting on a street to be paved, assent in writing to the paving, the proceedings of the city authorities, directing the paving to be done, are null and void, and a court of equity has, upon application of the non-assenting owners, jurisdiction to prevent, by injunction, the sale of their property to pay for such paving. In the case before us the court granted the injunction. The answer then came in, and the defendants entered a motion to dissolve. At the instance of the complainants, the court passed an order authorizing the parties ato take testimony in ²⁰ reference to the allegations of the bill,-” before a commissioner appointed for that purpose.

The complainants objected, in-the court below, to the motion to dissolve, because the answer was without oath-. They also excepted to the answer for several reasons, which need not now be considered. The evidence taken under the commission having been returned, the court dissolved the injunction, and the complainants appealed from the order of dissolution. The appeal is taken from an order dissolving an injunction, upon a motion to dissolve, in a case heard upon bill, answer and proof, taken under the Act of 1835, ch. 380.

The Mayor and City Council and the other defendants,, answered jointly, without oath, the seal of the corporation, being thereto attached. It thus becomes necessary to decide whether, at the hearing of such a motion, the answer of a corporation, under its corporate seal without oath, is to. be regarded as equivalent to the answer of an individual under oath.. Because, if not, the equity jof the bill is not • so denied as will authorize a dissolution of the injunction. In Hamilton vs. Whitridge, 11 Md. Rep., 128 , upon an appeal by the defendant from an order continuing an injunction, passed on- a motion to dissolve, the case was heard upon bill, answer and affidavits, under the Act of 1835, ch. 380.

On page 143, the court said: “In this stage of the cause, if the bill shows a case entitling the parties to the injunction, it will not be dissolved, if the equity is not denied by the answer.” It was -held that the defendant had refused to answer the .allegations of the bill, on a material point, and the order appealed