Central Savings Bank v. Mayor of Baltimore

Bryan, J., after stating the case as above reported, delivered the opinion of the Court. The Act of Assembly expressly requires that before any ordinance shall be passed for opening, extending or widening a street in the City of Baltimore, sixty days ⁵¹⁸ notice of an application for its passage shall be given in two of the daily newspapers in the city. The power to pass the ordinance depends on the performance of this condition. In this case the first publication of the notice was more than sixty days before the passage of the ordinance.

The statute does not direct that the notice shall be published any specified number of times;, it merely requires that it shall be given. A notice may be given once, twice or a dozen times, and it may be repeated at distant intervals; but it is difficult to infer that it must be repeated, from the mere requirement that it shall be given. The statute prescribes a limitation under which the legislative power of the Mayor and City Council is to be exercised. If it were possible for us to change the terms of this limitation, we should be met with a very serious difficulty, when we attempted to define the extent to which we should carry the change.

Should we say that the notice was to be published ten, twenty or thirty times? or shoxxld we say that the number of publications should be determined by the judgment which we might form of the exigexicies of each particular case? The statute by its terms requires only one publication, as a condition precedent to the valid passage of axx ordinance of the kind under consideration. If this limitation be considered insufficient, it is in the power of the Legislature to make it more stringent; but Courts ought to be extremely cautious of every construction, which would virtually insert in a statute words which it does not contain. In the present case the notice was published a number of times; but the interval between the last publication axxd the passage ’ of the ordinance was less than sixty days.

The repetitions of the notice were reasonable, as they gave it greater publicity; but they were not required as preliminaries to the action of the City Council. The ordinance as passed conforms in all particulars to the notice. It provides ⁵¹⁹ for doing what the notice states would be applied for. A different use of capital letters would have attracted more attention; but as nothing of this kind is required by the statute, the.

Court cannot say that it is requisite. The tribunals of the country are charged with the duty of keepiug municipal corporations within the limits of the law; but they cannot too resolutely reject every temptatiou to exercise legislative power. It was within the competency of the Council to refuse to pass the ordinance; and, doubtless, it would have done so, if it had thought that sufficient publicity had not been given to the application. It seems to us that the power to decide this question, like other matters of public interest and expediency, may be more safely lodged with the Council, than with the Courts.

At all events the law has lodged it there, and there it must remain. It has been objected that the proceedings of the street Commissioners were invalid, because in the interval between the first notice and the conclusion of the whole work, two of their number went out of office and were succeeded by other members. We must remember that the City of Baltimore has very ample power over its streets. The Act of the Legislature says that it shall have full power to provide for laying out, opening, extending, widening, straightening, or closing up any street, square, lane or alley, as in its opinion the public welfare or convenience may require.

And when any of these proceedings take place, the power of assessing damages and benefits is conferred in very liberal terms. The right, of course, is reserved to every owner and possessor to have a jury trial on these questions. And it is provided, that before any commissioners appointed by any ordinance shall proceed to discharge their duties in regard to the matters just mentioned, they shall give notice, by advertisement, of the ordinance under which they propose to act at least thirty days before the time of their first meeting to execute the ⁵²⁰ same. Code of Public Local Laws of 1860, Article 4, sections 831 and 839; Act of 1818, cli. 143.

With, this limitation on the power of commissioners to act, the whole subject of the assessment of damages and benefits is under the control of the Mayor and Oity Council, with the right reserved of a jury trial to the parties interested. But the corporation exercises its functions through officers. And this particular corporate power is exerted by means of a Board of Commissioners; and the acts of these Commissioners are in no respect personal, but to every intent and purpose official; they are the acts of the corporation. The Commissioners perform such duties in the execution of the corporate business, as the corporation assigns to them.

The individuals composing the board may be changed, but the public business is not to stop because of a change of officers. When the term of the Mayor expires and another person succeeds to the office, the new incumbent proceeds to complete the appropriate business of the mayoralty which may have been left unfinished by his predecessor. And so it is in every department of the City government. All the officers of the city must, of course, be governed by the ordinances^defining their duties and powers; but it must not be forgotten that ordinances are intended to promote the public business'and not to obstruct it; and their construction must be in