Consolidated Apartment House Co. v. Mayor of Baltimore

Thomas, J., delivered the opinion of the Court. In this case;, which is a sequel to the case of Baltimore City v. Hampton Court Co., 126 Md. 341 , the suit was brought by the Consolidated Apartment House Company against the Mayor and City Council of Baltimore, William A. Larkins, Commissioner of Street Cleaning, and James H. Preston, John Hubert, S. S. Field, H. Kent McCay and James F. Thrift, constituting the Board of Estimates of Baltimore City, to recover damages for the failure of the City and Commissioner of Street Cleaning to remove the ashes and household refuse from the plaintiff’s premises, between June 5th, 1913, and July 22nd, 1915, which damages consisted of the expenses incurred by the plaintiff in the removal of such ashes and household refuse from its property. The defendants demurred to the declaration, and this appeal is from the judgment of the Court below in their favor for costs. The narr. sets out the following provisions of the Charter of Baltimore City (Chap. 123 of the Acts of 1898): ⁵²⁵ “The Mayor and City Council of Baltimore shall have full power and authority * * * to clean the streets and remove the dirt and filth therefrom, and to prohibit and punish by ordinance, the placing of any dirt, filth or other matter thereon and to protect any pavement by prohibiting traveling thereon. “The Commissioner of Street Cleaning shall be the head of the fourth sub-department of Public Safety.

He shall be appointed by the Mayor in the mode prescribed by Section 25 of this Article, and hold bis office as therein provided. He shall be charged with the duty of cleaning the streets, as well as the cleaning of the sewers, subject as to the latter to the direction and orders of the City Engineer, and shall perform sueh other duties as may be prescribed by ordinance not inconsistent with this article. “The Mayor and City Council of Baltimore shall have full power and authority * * * to levy annually upon the assessable property of the city, by direct tax, with full power to provide by ordinance for the collection of the same, such sum of money as may be necessary, in its judgment, for the purpose of defraying the expenses of the said city over and exclusive of all expenses, charges and sums of money which it is, or shall be required by law to collect for other purposes subject to the provisions and limitations herein contained.” The natnr. also avers that at the time therein mentioned, the following ordinances of the Mayor and City Council of Baltimore were in force: “The said Commissioners of Street Cleaning shall have exclusive charge of the cleaning of the public streets, lanes, alleys, and of the collection and removal of ashes, garbage, street and household refuse in the City of Baltimore. He shall have and exercise all the powers, and perform all the duties, heretofore performed by the Health Department in relation to the collection, sale and removal of ashes, garbage,' street ⁵²⁶ offal and refuse of the cleaning of public streets, lanes and alleys, the cleaning away óf ice and snow from the gutters and crossings of the same and from the front of public squares, public buildings, bridges and public wharves belonging to the city, and the foot-way of the city spring and public squares. “It shall be the duty of the Commissioner of Street Cleaning to employ a sufficient number of drivers, horses and water-tight carts, for each district, for the removal of offal and coal and other ashes from the dwellings and other places within the several districts; and it shall be the duty of the men not only to act as drivers, but also to collect all offal and coal and other ashes as herein provided; and said superintendent shall cause said horses, carts and drivers to pass through all the streets, lanes and alleys within their respective districts, in such manner as shall insure the passage of one horse, cart and driver' through each and every street, lane and alley not less than three times a week, on alternate days, from the first day of November until the first day of May, and daily (Sundays excepted) from the first day of May until the first day of November; and they shall give notice to housekeepers of their approach by sounding a trumpet, blowing at the intersection of each street, that may be heard at least one square; and said superintendents shall in no case, own or be interested in the ownership of said horses or carts.” ..It is then alleged that the Mayor and City Council of Baltimore appropriated the sum of $822,658.22 for the needs of the Commissioner of Street Cleaning’ during the year 1913, and that of that, amount $66,500.00 was for removing garbage, $227,483.22 was for the purpose of collecting garbage and ashes, and $25,000 was for the disposal of non-perishable waste, and that at the end of the year there remained an unexpended balance of the appropriation which was returned to the general treasury of the city, and that for the years 1914 and 1915 there were like appropriations, ⁵²⁷ of which there remained at the end of each year an unexpended balance which was returned to the general treasury of the city; that on or about June 5th, 1913, the defendants constituting the Board of Estimates unlawfully and without authority transmitted to the Commissioner of Street Cleaning an order directing him to cease removing ashes and household refuse from dwelling houses,,of more than four stories or having an elevator, and that thereafter the Commissioner of Street Cleaning discontinued removing ashes and household refuse from certain apartment houses including The Plaza, an apartment house owned and managed by the plaintiff, until required to do so by the mandate of the Court of Appeals filed June 22nd, 1915, although frequently requested to remove such ashes, etc.; that the Mayor and City Council of Baltimore, through its officers and agents, the members of the Board of Estimates, ordered the discontinuance of the removal of the ashes and household refuse from plaintiff’s property, and that at no time did the Mayor and City Council, or any person or officer in its behalf, remove or offer to remove such ashes, etc., from the plaintiff’s property between the dates mentioned, and that by reason thereof the plaintiff was compelled to hire teams to remove such ashes, etc., to its great loss and damage. til this Court the only objections to the declaration urged by tbe appellees in support of their demurrer and the judgr ment of the Court below are: (1) That a municipal corporation, unless there is a contract creating, or a statute declaring the liability, is not bound to secure execution of its ordinances relating to its public powers, and is not responsible civilly for neglect of duty on the part of its officers in respect to their enforcement; and (2), that- the removal of ashes and household refuse “in nowise involves the exercise of the city’s corporate function,” but that “such acts, from their very nature, are purely governmental.” In reference to the first of these contentions and leaving out of consideration for the moment the distinction between the corporate and governmental powers of a municipal cor ⁵²⁸ p oration, it is clear that in. this State municipal corporations are liable for the neglect of their officers in respect to the enforcement of municipal ordinances passed in the exercise of powers conferred upon them, except where such corporations are deprived of the power to enforce their ordinances by statute. In Baltimore v. Marriott, 9 Md. 160 , the Court, referring to the obligation imposed upon Baltimore City by the provision of its Charter authorizing the city to pass all ordinances necessary “to prevent and remove nuisances,” said: “In order that the city should relieve itself from this obligation, it was not only necessary that it should pass ordinances sufficient to meet the exigencies of the case, but it was also bound to see that those ordinances were enforced.

To pass an ordinance and not enforce it, would be the same as if none had been passed so far as the public interests were concerned.” The cases of Taylor v. Cumberland, 64 Md. 68 ; Cockrane v. Frostburg, 81 Md. 54 ; Hagerstown v. Klotz, 93 Md. 437 , and Annapolis v. Stallings, 125 Md. 343 , are to the same effect. Since the passage of the Act of 1867, Chapter 367, creating an independent police department for Baltimore City, and imposing upon it the duty of enforcing within the city limits all laws and ordinances, this Court has held that the Mayor and City Council of Baltimore was not liable for damages resulting from the violation of the city ordinances by third parties, as distinguished from damages occasioned by the negligent conduct of the city’s employees or its failure to perform a duty imposed upon it. Altvater v. Baltimore, 31 Md. 462 ; Sinclair v. Baltimore, 59 Md. 592 ; Taxicab Co. v. M. & C. C. of Baltimore, 118 Md. 359 ; Baltimore City v. Walker, 98 Md. 637 ; McCarthy v. Clark, 115 Md. 454 , and Gutowski v. M. & C. C. of Baltimore, 127 Md. 502 . As municipal corporations are liable for any neglect to enforce ordinances passed in the exercise of their corporate powers, except where the power to enforce them is given to an independent board or officer, we are brought to the consideration of the question whether the power granted by its ⁵²⁹ Charter to the Mayor and Oity Council of Baltimore in reference to the removal of ashes and household refuse is a governmental power, one bestowed upon it as a public agency of the State, or a corporate power, one relating to its local interests or granted for its special advantage.

Learned counsel for the appellees insist that the city’s relation to the removal of ashes, etc., is so “closely akin to matters touching health and fire conditions,” it “can only he held to be governmental.” They cite and rely upon the cases of Wallace v. Baltimore, 123 Md. 638 ; Baltimore v. Hampton Court, supra, and Gutowski v. Baltimore, supra. In Wallace v. Baltimore, the Court held that a municipality in furnishing water gratuitously to he used in extinguishing fires, acts in a governmental capacity; Judge Constable saying: “So practically unanimous have been the decisions denying the liability of the municipality for losses from fire through the alleged negligence in connection with the water works, it is impracticable to give all the authorities so holding.” In Gutowski v. Baltimore, where the negligence complained of was the neglect of the city to enforce an ordinance which prohibited the use of iron hooks in loading a vessel with a cargo of dynamite, and where it was conceded that the place of the accident was not within the corporate limits of the city, but was alleged to he at a point on the river within the jurisdiction and control of the municipality, the Court, after deciding against the right of the plaintiff to recover on other grounds, held as a further reason why the city was not liable, that “the exercise by the city of its authority to provide for the safety of persons or property, where its corporate or private interests do not require such action, is a governmental function for the non-performance of which it can not he sued, unless such a right of action is given by statute.” After referring to the many Maryland cases in which the municipality had been held liable for injuries caused by dangerous conditions which it negligently created or permitted to exist in its public thoroughfares, Judge, IIbnek, speaking for the Court, said: “In such in ⁵³⁰ stances the liability of municipal corporations is sustainable upon the basis of their proprietary interest in the thoroughfares which they are empowered to maintain and keep safe for travel,” and, in conclusion, he said: “The decisions dealing with such questions recognize the difficulty of drawing a clear and definite line of distinction between municipal duties and powers which are to be regarded as governmental, and those which should be described as corporate in their character, but, with respect to such a situation as the one ■disclosed in the declaration filed in this suit, we can have no doubt that the asserted duty should properly be included in the former class, and its non-performance held to be an in.sufficient ground upon which to require the city to respond to a suit for damages.” These cases recognize the difficulty of determining whether a particular municipal power is governmental or corporate in its character, and are obviously not controlling except where powers of similar nature or character are being considered. The Hampton Court case is referred to as containing the statement that the Mayor and 'City Council of Baltimore had the power to regulate by ordinances the removal of ashes in exercise of its police powers, and that it could “amend, alter or repeal the existing ordinances on the subject- and, subject to the limitation that such ordinances must be reasonable in their provisions, could classify the buildings from which such removal should be made at the public expense.” In this case, however, we are not concerned with the power of the city to amend and repeal the ordinance in question but with the nature of the power to pass the ordinance, and the consequences of a failure or neglect to enforce it. ■ -We do not understand that case as deciding that the power of the city to provide for the removal of ashes is a part of its police power within the meaning of those cases holding that the police regulations of the city are not made or enforced in the interests of the city in its corporate capacity, but in the interest- of the public, and the city is not liable therefore for the acts of its officers in attempting to enforce such regulations. 4 Dillon ⁵³¹ Munic. Corp. (5th Ed.), sec. 1656.

That question was not presented by the record and its decision was not involved in the disposition of the case. It may bo noted that the first provision of the City Charter set out in the declaration is found in section 6 of Chapter 123 of the Acts of 1898 (City Charter) among the powers granted to the city in reference to “Streets, Bridges and Highways” and that the duty of cleaning the streets and sewers is imposed by the Charter upon the Commissioner of Street Cleaning, who, by the ordinances of the city is given “exclusive charge of cleaning of the public streets, lanes, alleys, and of the collection and removal of ashes, garbage, street and household refuse, * * * the cleaning away of ice and snow from the gutters and crossings of the same.” The duties of the city in respect to its streets and highways, and its liability for a neglect of those duties have been ioo frequently and clearly stated to require us to cite cases other than those we have already referred to and those mentioned in Gutowski v. Baltimore. That duty of the city in respect to its streets and highways is derived from the powers and authority given it. As said in Marriott’s case ( 9 Md. 160 ), and repeated in many of the later decisions of this Court: “Tt is a well settled principle that when a statute confers a power upon a corporation to be exercised for the public good, the exercise of the power is not merely discretionary but imperative, and the words 'power and authority’ in such case may be construed duty and obligation.” The liability of the municipality in respect to such duties is based not only upon the ground that the statute imposed upon it a duty, “but also upon the further