Green v. Garrett

Marbury, C. J., delivered the opinion of the Court. The appellants, who describe themselves as citizens and taxpayers of the City of Baltimore, filed their bill of complaint in Circuit Court No. 2 of Baltimore City against The Department of Recreation and Parks of Baltimore City and The Baltimore Baseball and Exhibition Company to enjoin the Department from entering into any agreement permitting the use and occupancy of the Baltimore Stadium by the Baseball Company for playing of professional baseball, to declare void an agreement of April 2, 1947 for such use for the period from that date to December 31, 1947, and to enjoin the respondents from certain operations of the loud speaker system of the Baltimore Stadium, certain parking operations there, and the use of flood lights there. The Department filed a demurrer and answer as did the Baseball Company. The International League of Professional Baseball Clubs, of which the Baltimore Club is a member, by its petition, asked to be made a party defendant, and permission having been granted, it adopted the demurrer and answer of the Baseball Company.

The case was heard in open court and voluminous testimony was taken over a period of days, after which the Chancellor filed his decree overruling the demurrers, and refusing the greater part of the relief prayed. He prohibited the continuance by the Baseball Company of the use of facilities in the administration building, and he required the public address system to be so operated as not to unnecessarily annoy the adjacent residents. From this decree the complainants appealed. No appeal was taken by the respondents.

A brief statement of facts in connection with the Stadium property and its use is quoted from the opinion of the Chancellor: ⁵⁷ “The Baltimore Stadium property is land acquired by the ‘Department’ prior to 1922 and known at that time as Venable Park. In 1922 it consisted of an abandoned brick yard and other rough scrub land. There was only one house nearby and that has since been demolished. 33rd Street was used as a street but had not been widened. During 1922 Mayor Broening and some of his associates conceived the idea of building a stadium upon the land, in which athletic games of considerable magnitude might be held, the first thereof being the Army-Marine game in the Fall of 1922.

From that time until 1939 the Stadium was used infrequently for football games, track meets and civic events. It had been called the ‘White Elephant’, ‘Lonely Acres’ and ‘The Vast Void’, indicative of its general lack of use. A charge was customarily made for the use of the facilities. Former Mayor Broening testified that the proceeds of the first game was divided three ways, that is, one-third to the Army, one-third to the Marines and one-third to the City.

The share of the City amounted to $30,000. While some stress was laid by the Complainants upon the use of the land adjacent to the Stadium for landscape purposes, it is certainly true that the only use of the Stadium proper was for games and feature events. It was never used for landscaping in any sense of the word. The infrequent use of the Stadium continued until 1939 when lights per-' mitting night use were installed and beginning with that time the use increased tremendously.

Many of the football games and other events were held at night and the increased use may be found reflected in the revenues accruing as a result thereof. A public address system was installed in 1935 and improved upon from year to year and in 1939 the system was modernized and is the one in present use. “On July 4, 1944, a disastrous fire destroyed the buildings comprising what was then known as Oriole Park on 29th Street and Greenmount Avenue, the permanent home of the ‘Club’. Mayor McKeldin of Baltimore City offered the ‘Club’ the use of the Stadium. It was ac ⁵⁸ cepted and the ‘Club’ completed the 1944 season there.

It may be said, without the slightest qualification,. that the move was intended to be temporary in nature and no one connected with the ‘Department/ ‘Club/ ‘League’ or the complainants had any idea that it would be permanent. It is also true that during the succeeding years the occupancy was considered temporary and as Mr. Reed, President of the ‘Club’ expressed it, ‘not until February, 1947 did the “club” have any idea of being permanently in the Stadium.’ It was when the ‘Department’ offered the ‘Club’ a long term agreement for the use of the Stadium in February, 1947 and not until that time that the ‘Club’ abandoned the idea of moving. * * * The ‘Club’ plays most of its games at night and on Sundays. When played at night the games start about 8 p. m. and last until 10 p. m. for a single game, or start at 6:30 and last until 10:45 p. m. if a double header is played. On Sundays the games begin in the afternoon and are over by dusk.

There can be no doubt that the games played by the ‘Club’ have prodúced a ‘use’ of the Stadium greatly in excess of its former use. Many citizens count that as highly desirable because it lightens the tax burden of carrying the Stadium property. The complainants who live nearby consider it very undesirable because of the noise, confusion and disturbance it produces.” The first matter for our consideration is whether the appellants, as taxpayers, have a right to bring this suit. The use of the Stadium for professional baseball has resulted in a profit instead of a deficit, and the public, in general, has benefited thereby.

Taxpayers have sufficient standing to bring suits against municipal authorities to prevent the waste of public funds or property, but a different situation arises where a profitable arrangement made by the municipality is sought to be restrained. The subject is discussed in Sun Cab Company v. Cloud, 162 Md. 419 , 159 A. 922 , and Baltimore Retail Liquor Package Stores Ass’n v. Board of License Commissioners, 171 Md. 426 , 189 A. 209 , 109 A. L. R. 1253. However, our Courts have taken jurisdiction of a taxpayers’ suit ⁵⁹ to enjoin the diversion to profitable but unlawful use of park property in Baltimore City (Hanlon v. Levin, 168 Md. 674 , 179 A. 286 ), and there is no doubt that as adjacent residents and property owners, the appellants have an interest in restraining conditions arising out of the contract, which constitute a special nuisance to them. Hart v Wagner, 184 Md. 40 , 40 A. 2d 47 ; Five Oaks Corporation v. Gathmann, 190 Md. 348 , 58 A. 2d 656 .

The decisions are not entirely harmonious, but we have heretofore allowed considerable latitude in this type of suit, and we have, therefore, concluded to consider the entire case without questioning the right of appellants to bring any phase of it. One other preliminary matter should be mentioned. The International League of Professional Baseball Clubs filed a motion to dismiss the appeal on the ground that the bill of complaint, filed December 23, 1947, attempted to enjoin the yearly contract which would expire in eight days, and which had expired prior to the hearing of the case. It therefore contends that the case is moot.

However, the bill of complaint asked for a general injunction against the execution of any agreement, and as another yearly agreement was entered into for the baseball playing year of 1948, and further agreements are contemplated for the permanent use of the Stadium by the Baseball Company, we do not think the questions involved are moot, and the motion will be denied. The appellant’s first contention is that the Department of Recreation and Parks has no power or authority to enter into an agreement with the Baseball Company, giving the latter the privilege of using the Stadium for professional baseball. The powers of the Department are found in Section 96 of the Amended Baltimore City Charter of 1946. By the provisions of this Section the Board of Recreation and Parks, which is the head of the Department, is authorized “(a) to establish, maintain, operate and control * * * athletic and recreational facilities and activities for the people of Baltimore City * * * and (g) to charge and collect * * * rental ⁶⁰ for the use of property controlled by it; * * * provided that no lease of such facilities shall be made for a period of thirty day or more (or for successive periods aggregating thirty days or more) without the prior approval of the Board of Estimates”.

The contention of the appellants is that these powers should be strictly construed, and that the Department should not have broader powers with reference to the execution of leases of properties than the municipal corporation itself. They point out that in the case of Hanlon v. Levin, supra, the Board of Park Commissioners, one of the predecessors of the Department, had leased a part of Druid Hill Park, one of the public parks of Baltimore City, to the Baltimore Broadcasting Company. On this tract a broadcasting tower and building were to be constructed for use in connection with Radio Station W C B M. The lease was for a term of ten years. Druid Hill Park had been acquired by the City, and not by the Park Board.

There were certain provisions in the Charter, then in force, which provided for advertisement before any franchise or the right to use any public property could be granted, and the court said the City could not lease public property to private parties so long as it was needed for public use. The provisions of the Charter, then in force, with respect to the Board of Park Commissioners, authorized that Board “to rent or lease property which it may acquire on behalf of the City”. The court said that authority limited the Park Board to the leasing of property which it had acquired, that it could not lease property which the City had otherwise acquired, and that its power was not broader than the power of the City above referred to. The appellees, however, call attention to the fact that the present charter does not restrict the right of the Department to lease only land acquired by it, but refers to the collection of rentals for the use of property “controlled by it”.

They contend that the provision with respect to leasing shows clearly that it was the intention to give the Department, subject to the approval of the ⁶¹ Board of Estimates, for leases over 30 days, power to lease the facilities under its control. The Baltimore Stadium was constructed as a .sports center to be used for all purposes for which such a building could be used. It has been, since its construction, the scene of many athletic events. These have by no means been confined to those between residents of the City of Baltimore, such as the annual football games between the Baltimore City College and the Baltimore Polytechnic Institute.

Many of the football games of the United States Naval Academy have been played there. It was used for the Army-Marine football games, and subsequently for the annual games between the Marines and the Firemen. In its very earliest days it was used for professional football games, and it is now being used during the football season by the Baltimore professional football team. Many of the great college football teams of the country have played there.

It is obvious that it was never intended that the athletic and recreational facilities which the Department is allowed to conduct there, should be those only in which residents of the City were physically engaged. Recreation is a broad term, and it would be an unnatural use of it to say that it does not apply to watching a football or baseball game, but only applied to engaging in one. From the onlooker’s point of view, a game conducted by professionals is often more interesting than one played by amateurs. The very purpose of a stadium is to afford facilities for spectators.

The players need only the ground to play upon. It is conceded that at the time the stadium was built, and for some time thereafter, it was not expected that the Baltimore professional baseball team, generally known as the Orioles, should occupy it. They then had their own park, referred to in the Chancellor’s statement of fact, but this park