Henderson v. Mayor of Baltimore ex rel. Eschbach

Tuck, J., delivered the opinion of this court. We do not think that the ordinances of the city of Baltimore, applicable to the present case, should receive the construction placed upon them by the counsel for the appellee to the full extent of their argument. They virtually confer on property owners, not only the right of having their own lots improved by paving in front of them, but also the power to compel others to submit to such supposed improvements, and ³⁵⁸ to pay for the same against their will; and the tax being due immediately on the commissioners making out the lists, payment may be enforced even before any portion of the work is commenced, though laid, not by the municipal authorities in the ordinary exercise of their taxing powers, but at the instance of persons who may be influenced solely by a regard for their own interests. It is true that this is done subject to the approval of the commissioners and the mayor, acting under the provisions of the ordinances, but the machinery necessary to give them effect can be put in motion only by those so interested.

This is certainly a veiy high power to be possessed by any portion of citizens over others. It may be presumed that proprietors, looking to their own interests, will not object if they can perceive that their property will be appreciated by the improvement. But it is not difficult to perceive, that combinations may be formed for the advantage of some to the prejudice of others; and on the other hand, that a single individual, owning a majority of the feet of ground, may subject his neighbors to the operation of the ordinances when illy able to incur the expense, without, in either case, promoting the public convenience to any great extent. To prevent the abuse of the power, certain prehminaries are prescribed which must appear to have been at least substantially complied with, and among these, as most important, is the assent of the proprietors of the requisite number of feet binding and fronting on the street to be paved.

The defendant’s second prayer asserts, that the evidence on this point was not legally sufficient, and as this proposition, if correct, will dispose of the case, we shall address ourselves to its consideration. There is no testimony to show that Shipley had authority to assent for the owners of the lot whom-he claimed to represent. He states in his evidence, that he told Eschbach that he did not feel authorised to sign for the heirs, but did sign upon the conditions mentioned in the agreement of the 3rd of April 1848. The deed, bearing date April 19th, executed as a compliance with the condition on which Shipley signed the application, and relied on by the appellees as evidence of ratification, cannot be considered as operative from its ³⁵⁹ date, even if it be otherwise sufficient to remove the objection.

Deeds take effect from delivery. It is manifest that this was executed and acknowledged by some of the grantors after the 4th of May, and could not have been delivered on the day of its date. There was no proof as to the delivery other than what appeared on the instrument. Being a point arising upon its face, unconnected with parol proof, it was for the decision of the court.

Barry vs. Hoffman, 6 Md. Rep., 78 . Where deeds, as in this case, are executed and acknowledged in different