Marchant v. Mayor of Baltimore

UrNER, J., delivered the opinion of the Court. In a condemnation proceeding by the Mayor and City Council of Baltimore, the Port Development Commission, and the Public Improvement Commission of that city, the appellants were awarded $64,120 for approximately five and three-quarters acres of land, with appurtenant riparian rights, situated on the southwest shore of the Patapsoo River within the city limits. The land was condemned for the purposes of a comprehensive plan of harbor development for which provision has been made by the general assembly. ⁵¹⁷ The first of the questions to be considered is whether this proceeding for the condemnation of the property was didy authorized. A motion to quash asserted the contrary.

The contention is that no ord inance was passed for the acquisition of the land by the direct exercise of the city’s general charter power of eminent domain, and that neither of the commissions uniting in the petition to condemn was empowered to take such action. The City of Baltimore has the power under its charter h> acquire by purchase or condemnation any land which it may need for “any public or municipal purpose.” Charter (1915) sec. 6 (4). One of its most important purposes is the care and improvement of its harbor, including the erection and maintenance of wharves and piers. Charter, sec. 6 (8).

The Port Development Commission was created under the terms of chapter 560 of the Acts of 1920, which authorized the city, with the approval of its voters, to borrow fifty million dollars “for developing, extending and improving the harbor of Baltimore and its facilities,” and which provided that the fund so obtained should be administered and expended, and its “entire disposition” supervised, by a commission appointed by ordinance of the Mayor and City Council. The commission was invested by the act with the right and power on behalf of the municipality “to acquire from time to time by gift, purchase, lease or other method of acquisition, or by condemnation, any lands or property * * * which may be proper or desirable in connection with the objects” which the act specified. Ordinance No. 377 of the Mayor and City Council, approved July 2, 1920, appointed the commission and defined its powers in conformity with the provisions of the statute. A resolution of the commission, passed April 8, 1924, declared the acquisition of the property involved in this proceeding to be desirable and necessary for the accomplishment of the harbor development objects mentioned in Ordinance No. 377 and in chapter 560 of the Acts of 1920. ⁵¹⁸ The Public Improvement Commission was appointed in pursuance of chapter 373 of the Acts of 1920, which provided for a loan of twenty-six million dollars for various municipal improvements.

It Was directed that $2,500,000 of the fund should be used for developing and improving the harbor of Baltimore1, including the acquisition of sites and the construction of wharves, docks, piers and warehouses. Provision was1 made 'by the act for the creation by ordinance of a commission with full power to administer the improvement fund, to provide for its expenditure, and to supervise its entire disposition. Ordinance No. 376, approved July 2, 1920, appointed the commission in compliance with the statutory direction. By a subsequent ordinance, No. 576, approved April 14, 1921, it was enacted that the Commission should have power to acquire by condemnation any property needed in its judgment for any of the purposes contemplated by Ordinance No. 376.

The necessity for the acquisition of the land now in process of condemnation was formally stated in a resolution of the commission passed February 12, 1923. By the "General Condemnation Law (Code, art. 33A), under which the present case has been conducted, it is provided that “any municipal or other corporation, commission, board, body, or person, which under the laws of this State, has the right to acquire property by condemnation, shall acquire such property if condemnation proceedings be resorted to, in pursuance of, and under the provisions of this article, anything in any other Public General Law,, or Public Local Law, or private or special statute, to the contrary notwithstanding * * While the Mayor and City Council of Baltimore apparently passed no ordinance providing specifically for the condemnation of the property with which this case is concerned, there are duly enacted ordinances effectuating the intention of the Legislature that full power to administer the funds appropriated, under the statutes to which we have referred, for harbor improvement purposes, should be vested in the two commissions which they require to be created, and each of ⁵¹⁹ those commissions has passed a resolution declaring the necessity for the acquisition of the land embraced in the pending' condemnation. The authority of the commissions does not rest upon a mere delegation of right and duty from the municipality, but is supported by specific statutory provisions. The resolutions passed by the commissions, in the exercise of the powers conferred by statute and ordinance, are sufficiently authoritative to- obviate any occasion, which might otherwise exist, for an ordinance directed to the particular condemnation now being considered.

It appears that the resolution of the Port Development Commission was passed after the institution of this proceeding, and wo are, therefore, asked to disregard that resolution in deciding whether the condemnation is valid. The original petition in the case was filed only in the name of the Mayor and City Council of Baltimore, but it was later amended by rhe joinder of the two commissions with the city as petitioners. Before this amendment was made, the Port Development Commission passed its resolution as to the necessity for condemning the land which the petition describes. It was upon the basis of the amended petition, and of the answers thereto, that the issues in the case were tried and determined.

The proceeding originated for the Port Development Commission when it was made a party, and its prior resolution should be considered as reflecting upon the validity of its action in participating in the suit. It is not essential to decide whether the petitioners would have- had an equal right to maintain the proceeding separately under the conditions shown by the record. There can be no doubt that they collectively represent all of the ample power conferred by the General Assembly for the acquisition of property to improve and enlarge the port facilities upon which the prosperity of Baltimore is vitally dependent. While it- may have been unnecessary for all of the petitioners to unite in the action, yet as their joinder could not prejudice the- defendants, and as the effect of any condemnation for the objects therein contemplated is to vest in the municipality itself the title to the ⁵²⁰ property condemned, we see no reason to bold tbe proceeding invalid on the ground of a misjoinder of parties.

Tbe motion to quash further asserts that tbe petition for the condemnation does not sufficiently indicate tbe riparian rights to be acquired as appurtenant to tbe land area which it mentions. As stated in the petition, it is the purpose of the proceeding to condemn the river shore land particularly described, together with “all riparian and aquatic rights of the party or parties defendant hereto and each of them, as the owner or owners of said property.” There is said fo be a large expanse of shallow water between the land mentioned in the petition and the present deep water channel of the river, and it is contended that this area should have been defined 'in tire petition because the defendants’ right to utilize the submerged ground .for the erection of pier’s, and for other suitable-uses, which may not interfere with navigation, is a property interest of great value. There was no question in the case as to' the right of the defendants to have the nature and scope of their riparian privileges and interests. considered upion the question as to the amount of the damages, to which they were entitled. The area of the underwater ground to which the riparian rights could extend was-the subject of inquiry in the course of the trial.

The precise limits of that area did not appear to be definable by the proof. It was the designated purpose of the condemnation to appropriate the land of the defendants for harbor develop1-inent uses, and its water frontage was an obviously important element of its value and utility. No' misapprehension upon that subject could have been caused by the omission to1 include in the petition a description of the under-water acreage over which the appurtenant riparian rights could be exercised. The general description of those rights contained in the petition was adequate, in our judgment, for the purposes of the present proceeding.

It is urged that the condemnation is invalid because it depends in part' upon chapter 560 of the Acts, of 1920, which provides for the administration of a fifty million dollar fund by the Port Development Commission in developing, extend- ⁵²¹ ingi and improving the harbor of Baltimore and its facilities, and includes a provision for the leasing of the property acquired or improved under its terms. The argument is that the act, in thus proposing to authorize the condemnation of property to be used by prospective lessees from the city, violates the constitutional limitation of the power of eminent domain to the faking of private property solely for a public use. In view of the objects to which the act is directed, and of the important public service which it was designed to promote, we are of the opinion that the objection to its validity should not prevail. The development of the harbor of Baltimore according to a comprehensive plan, by which the commerce of the port, will be most advantageously served, and its future growth encouraged, is a project of distinctively public interest and purpose.

It is concerned with the improvement and extension of a harbor service which constitutes an essential part of a system of water transportation connecting the port of Baltimore with the markets, of the world. The public character of the use to which the harbor structures, are devoted is, not affected by the fact that they may not aE be made available for the indiscriminate use of the public. By the allocation or lease of certain docks for the separate use of persons or corporations having a regular or continuous need of such conveniences, the city does not convert into a private use the public port service which is thus in part provided. The municipal ownership- is not thereby surrendered, and the use remains consistent with the public purpose for which the port 'accommodations, as a whole are maintained.

In 1 Dillon onMimi’.ci'pul Oorporaiions (5th Ed.), sec. 269, it is said: “The construction of docks and wharves by a municipality for general public use is, a public purpose which justifies the exercise of the power of eminent domain. To minister to the necessities of commerce by providing fit and proper places- in a seaport where- ships- can be loaded and unloaded with .all proper facilities;, is a public duty owing by the State and through it by the municipality which governs- and controls the port. * * * If a, permanent pier and ⁵²² an exclusive right to its use be a necessity of large steamship lines, without which business cannot properly be transacted, and in the absence of which steamers will resort to other ports, then the duty rests upon the 'State or municipality to furnish such quarters for a fair compensation, or else the State is bound to permit the steamship companies to obtain such accommodations from private owners. Having undertaken the duty imposed upon it by 'the 'State to provide such accommodations as the interests' of commerce fairly require, all appropriate acts of a city done in the performance of that duty are for a public purpose. Hence land taken for wharves is taken for a public purpose, although some portions of the land actually used may be thereafter, in the discretion of the city, divided off and placed in the exclusive possession of a lessee for -the sole purpose of using it in the transaction of the necessary business connected with the loading and unloading’ of passengers and cargoes of ship® and steamers.” It is said in 20 O. J. 576: “A grant,of power to a city to condemn for piers is/not invalid because it vests the city with power to lease or to give the exclusive use of some of the piers to private persons or to devote them to specific kinds of commerce, * * The statements just quoted were based on the decisions in Metter of Mayor etc. of N. Y., 135 N. Y. 253 , and Dyer v. Baltimore, 140 Fed. 880 .

In the first of those cases Judge Peckham, speaking’ for the court, said, in reference to the right of the City of New York to condemn land for use in the construction of piers under a statute which permitted them to be leased: “When used by lessees under the facts already stated the use is a public one. The use is public while the property is thus leased because it fills an undisputed necessity existing in regard to' these common carriers by water, who are -themselves engaged in fulfilling their obligations to the general public; obligations which could not otherwise be properly or effectually performed.” ' In Dyer v. Baltimore , a contention that the city could not validly condemn property for the construction of piers which ⁵²³ were intended to be leased to private persons or corporations was, overruled by Judge Morris, .who supported that conclusion by referring] to the New York case already cited, and said: “Regard must be had to the methods by which the public wharves of a city are availed of in modern commerce. Public landings on a river bank open to every vessel that chooses to malee fast