Mayor, Etc., of Baltimore v. Nirdlinger

Boyd, C. J., delivered the opinion of the Court. Seven hills in equity were filed in Circuit Court Eo. 2 of Baltimore City, whereby it was sought to enjoin the Mayor and City Council of Baltimore, the Board of Estimates, the Inspector of Buildings and the Chief of the Bureau of Minor ⁶⁰³ Privileges of said city from in any manner interferring with the “minor privileges” connected with or related to the buildings of the respective parties set out in the hills. The first, in the order in which they appear on the docket, was filed by Samuel E. Nirdlinger and others, which will be hereinafter referred to as the Academy of Music; the second, by the Hotel Rennert Company; the third, by Stewart & Oomp-any; the fourth, by Isaac Benesch & Sons ; the fifth, by J. Henry Miller; the sixth, by R. Nelson Stevens et al., and the seventh by Mary A. Eifer. Appeals from the decrees passed were taken by the City in the Academy of Music, Hotel Rennert, Stewart & Co. and the Eifer cases, and cross-appeals were taken by the respective plaintiffs, except in the Eifer ease, and appeals were also taken by the plaintiffs in the Miller and Stevens cases.

Although the eases present some different phases of the main questions involved, they were argued together and will be considered in this opinion. On or about January 5th, 1917, the Board of Estimates caused to be inserted in the newspapers of Baltimore an advertisement of what is called “New Corrected Schedule of Charges for Minor Privileges. Effective Jan. 1st, 1917.” The schedule embraces a great many subjects, including areas and area-ways, awnings, balcones, coal boles and chutes, lamps, marquees, signs, vaults, columns, piers and show-windows. Notices were sent out to the various parties as follows: “See Revised Charter^ Sections 8 and 37.

BUREAU OP MINOR PRIVILEGES. Room 22, City Hall. Name................................, 19..... Address........................................

Minor Privileges................................ You are hereby notified that, under the order of the Board of Estimates (copy of which you will find below), the above-mentioned use by you of the public highway is illegal, and you are required to discontinue such use and remove all obstructions or projcc ⁶⁰⁴ tions into the highway connected therewith without further notice. Should you desire to apply for a permit to continue such use, file your application with the Inspector of Buildings at once, and the same will be presented to the Board of Estimates for their action. Blanks and information for such application will be furnished by the undersigned upon request.

H. W. Johewktitg, Chief." “ORDER OE BOARD OE ESTIMATES. “In order to preserve the public highways of Baltimore City for the use of the traveling public, the primary purpose for which they are constructed and maintained, and in order to obtain from all persons enjoying minor privileges in any portion of the public highway, for private purposes, relatively equal annual pay - ments for the privilege, “It is Ordered by the Board of Estimates this 21st day of November, 1916, that all minor privileges in all the public highways of Baltimore City are hereby revoked. And all persons having * * * (naming different kinds of privileges) or other obstructions into, under or over any portion of the public highway, are hereby ordered to remove every such obstruction from the public highway within thirty days from the first publication of this Order in the newspaper, unless within that time the party maintaining the projection or obstruction shall apply to the Board of Estimates for a permit therefor, and the Board shall grant such permit. Application blanks for such permits may be obtained from the Bureau of Minor Privileges, Room 22, City Hall. “ ‘Copy,’ in duplicate, delivered to the office of the Marshal of Police, March 12, 1911.” “POLICEMEN’S REPORT OE SERVICE. “Copy of the above Notice and Order was served on the party therein mentioned..................., 19..... Officer................” ⁶⁰⁵ 1.

It will he well to state our views on the main questions and then apply our conclusions to the severa] oases before us. The Board based its authority for such action on the Charter, as passed by the Act of 1898, Oh. 123, with amendments thereto—particularly sections 8 and 37, which are specifically refrered to. Section 7 declares that the title of the Mayor and City Council in its highways, etc., shall he inalienable. Section 8 originally provided that the Mayor and City Council could grant for a limited time, and subject to the limitations and conditions in Article 4 of Code of P. L. L., specific franchises or rights in or relating to any of the public property or places mentioned in section 7; provided that sncb grant be in compliance with the requirements of the article and that its terms and conditions shall have first been authorized and set forth in an ordinance duly passed.

It, provided that notwithstanding any such grant the Mayor and City Council “shall at all times have and retain the power and right to reasonably regulate in the public interest the exercise of the franchise or right so granted.” By Chapter 616 of Acts of 1904, that section was amended by adding that no franchise shall be granted for the erection on any of the streets, lanes or alleys of the city, “of any awning poles, posts, hitehing-posts, barber poles, railings, open areas, stepping stones, sign-posts, horse troughs, clocks, stands of any character or cellar doors or coal holes, unless the same he flush with the pavement.” Then by Chapter 152 of Acts of 1906, it was further1 amended by striking out of the prohibition, added by the Act of 1904, the words “open areas” and adding “nor shall any franchise he granted for an open area unless thei same is used as a, means of entrance1 to buildings used primarily for purposes of residence, and only in such case when the same does not extend more than three and one-half feet from the building line.” Section 9 prescribes terms and conditions of grants and franchises, amongst others prohibiting franchises or rights for a longer period than Iwentv-five years, hut provided for renewals, etc. Section 10 provides for publication of proposed grants and section 11 ⁶⁰⁶ that the Mayor and City Council “shall not part with, hut shall expressly reserve the right and duty at all times to exercise in the interest of the public full municipal superintendence, regulation and control in respect to all matters connected with said grant, and not inconsistent with the terms thereof.” Section 37 as originally adopted provided that before any grant should he made by the Mayor and City Council of a franchise or right to use any street, etc., the proposed specific grant should he embodied in the form of an ordinance, with all the terms and conditions required by the provisions of that article, and such others as might he right and proper; that after the first reading of the ordinance it should be referred to the Board of Estimates, the duty of which was to make diligent inquiry as to the money value of the franchise or right and the adequacy of the proposed compensation to be paid therefor to the city, etc. By Chapter 109 of Acts of 1900, that section was amended by adding a provision that the right to use the streets “for how or hay windows, hitching posts, area-ways, steps., planting of trees, storm doors, drains and drain pipes, stands or other such temporary or similar uses,” may he granted by the Board of Estimates for such amount and on such terms and conditions as the Board may consider right and proper. Before the Board can grant any such right an application is required to be filed in which must be stated “what the applicant is willing to pay for the same,” and copies of such application are required to he served on the adjoining’ property owners by the applicant before filing tbe application with the Board. It provided that no ordinance or advertisement should be necessary in the cases named in the proviso of that section. Then by the Act of 1906, Chap. 357, that section was further amended, as it is now in the revised charter, so' as to provide for the' right of the Board to grant “the right to nse the streets, avenues, alleys or public property by any person or body corporate for steps, porticoes, bay windows, bow windows, show windows, signs, columns, piers or other projections or structural ornaments of any character, except so ⁶⁰⁷ far1 as the same may be prohibited by law, and covered vaults, covered area-ways, drains, drain pipes, or any other private purpose not prohibited by law, and not being' a franchise or right requiring a formal grant by ordinance under the terms of this section.” We have thus referred at length to the provisions of the charter having relation to the powers of the Board of Estimates, in regard to these privileges,- and after giving them our most careful consideration we are forced to the conclusion that the Board had no authority to pass an order by which it undertook to revoke all minor privileges in all the public highways and to order all persons having such things as are enumerated in the order to- remove them, regardless of when they were granted.

The charter has not authorized and we can not assume that the Legislature intended to grant that Board the power of such wholesale destruction of rights that may exist in owners and occupants of property in Baltimore. It matters not under what authority they might-claim the right to such privileges—^whether by ordinance or otherwise—or whether they have already paid for the privilege or when granted, those claiming them were thus attempted to he deprived of them without even a hearing or opportunity to present their claim of the right to them. If one has a privilege through an ordinance duly passed the order was equivalent to a repeal of it if it could he effective. Those who claim to have irrevocable franchises or rights which for some reason can not be affected were required to surrender1 such claim in order to get a bearing before the Board.

Much of what was said as to the powers of that Board in Baltimore v. Hampton Court, 126 Md. 841 , is applicable here. 2. The very terms of the several sections of the charter referred to show that they were not intended to have a retroactive effect. As was said in United Railways v. Hayes, 92 Md. 490 , in speaking of the provisions in the new charter as to railway companies on page 497: “But these provisions evidently were intended to apply to the future. This we ⁶⁰⁸ think is made manifest in view of the second section which provides that the charter shall not affect or impair any right, vested, acquired or existing.” The language and provisions of the charter applicable to these privileges speak too strongly for themselves to require us to cite authorities to show the position this Court and others have taken in reference to retroactive statutes, and we find nothing in the charter to .indicate that it was intended to he retroactive in regard to such privileges as these, or that it, was intended to confer such sweeping powers on the Board of Estimates in reference to them as the order of November 21st, 1916, indicates it supposed it had. 3.

It is apparently difficult to ascertain the actual facts in. reference to some of these privileges claimed to have been granted or begun some years ago. There seem to he no records which can he said to he at all complete prior to 1904,. and there is no index to the papers formerly under the control of the Inspector of Buildings prior to 1900. They are kept in crates in such way as to make them difficult to find, if indeed records of permits granted by that officer or his predecessor were kept or made. There is in some instances evidence of payments by some of these parties, as shown by the records in the Oom.ptroller’s office, when there is apparently not to be found among, the records of the officials who issued them evidence of the issuing of permits by those authorized to issue them.

It is remarkable that in a city as large as Baltimore there should have heeu as much apparent carelessness about such things as are now called “minor privileges,” until recent years. There is, however, enough in the record to show that if the theory of the present city authorities be correct, and it be universally put into effect many of the property owners in the city might sustain great injury. That a very large number of houses, if not the great majority of them, have steps, cornices or other projections over parts of the sidewalk, many of them on important streets and avenues, is apparent to any one passing over the streets of the-city, and the officials must recognize the fact that it would ⁶⁰⁹ be impossible to now remove them, certainly in very many cases, without causing much more injury to the owners than benefit to the public. While ignorance of the law' may afford no excuse, it does not have a tendency to make people more law abiding to have those in authority countenance, if not actually participate in, encroachments upon the public highways under their charge, year after year (as some of the officials in former years must have done) and then have their successors at a later period treat them as trespassers and as guilty of erecting or maintaining nuisances.

When a city grows as Baltimore has there may be more necessity for preventing abutters and others from in any way encroaching upon the highways except in so1 far as may be necessary temporarily for building or like purposes, and it may bo very desirable to avoid some of tbe encroachments in the future, but in some of the cases before us, it is practically admitted that the Board did not expect the parties to remove the alleged obstructions, but did expect them to pay, and in-some instances repay, for them and continue them as they are, subject to such regulations and restrictions as may be imposed on them in the grants. It can make no difference-to the public in the use of a street whether a vault, area-way, pole, sign, coal-hole, marquee or show window is paid for or is free, for it is just as much an obstruction in the one case as in the other. Indeed, it might well be contended that legislation authorizing a municipality to charge for such privileges, to some extent recognizes the necessity for them, as it is not to- be presumed that the Legislature would grant the power exclusively as a revenue measure, and when they do materially obstruct the public they ought not to be granted, unless there is some real necessity for them. But when they are granted and paid for or were granted at a time when no money value to the city for them was taken into consideration but tbe authorities deemed it proper, possibly desirable for tbe city to allow them and the parties were induced to con-, struct their buildings accordingly, instead of keeping back of. the building line so they could keep them on their own ⁶¹⁰ ground, or to erect costly improvements, the successors in office of those who granted them ought not to he required in the discharge of their duties as they understand them to repudiate the action, or even inaction with knowledge of what was being done of their predecessors in office if that must result in great injury or gross injustice to those who acted in 'good faith upon the grant, permission or consent of those in power at the time unless there is no other .proper course for them to pursue. 4.

We do not understand the City of Baltimore to have been as helpless and impotent prior to 1898, when the new Charter was granted, as the contention of the appellees would seem to indicate. Erom the reported cases decided by us and Our predecessors we know that the City of Baltimore had as its legal advisers for years before the Charter of 1898, as it has had since some of the leading members of the Bar, and especially when we see by the city Codes in force at least as far back as is necessary to go in considering any of these cases that ordinances bearing on these questions or most óf them vere in effect, it would be difficult to understand how such attorneys could have permitted the city to continue in such a helpless condition or the rights of its citizens making costly improvements to be so jeopardized if the position contended for by the city be correct. It is clear, however, that the corporation had control over the streets of the city. As said in Textor v. B. & O. R. R. Co., 59 Md. 63 : “The streets are under the exclusive control of the city as avenues of travel,” and Judge Alvbt said in Sinclair v. Baltimore, 59 Md. 592 , that “By the Charter of the city iall the streets, lanes or alleys opened in the manner directed, shall be public highways and be subject to the laws, regulations and ordinances applicable to public streets, lanes or alleys, or parts thereof in said city,’ and his opinion speaks of the city as having “exclusive power over the streets.” In Garrett v. Janes, 65 Md., on page 265, it was said that tíre City Code of 1879 “has been recognized as the repository of the ordinances, valid at its adoption, in the subsequent ⁶¹¹ city legislation, and has been cited by parties and relied on by this Court in numerous cases as of undoubted authority.” It will, of course, be conceded that the adoption of a Code of ordinances not necessarily validate an invalid ordinance, but that and later codes embodying such ordinances were used so long that surely someone would have tested the validity of such important ordinances as some of those on this subject, if there had been any doubt about their validity by those at the Bar during the many years some of the ordinances were treated in effect, prior to- 1898, and our predecessors would not have been permitted to proceed on the assumption, never before questioned so far as the records of this Court show, that they were valid.

In Preston v. Likes, 103 Md. 191 , this Court and the counsel engaged in it recognized an ordinance passed in 1895, regulating the erection of awnings. The decision of the case depended upon whether that ordinance (Ordinance of the Mayor and City Council of Baltimore, No. 116, approved duly 18th, 1895) or section 37 of the Charter, as amended by the Act of 1900, was controlling. According to the city’s contention there was no legislative power given to it except, by the Act of 1833, Chap. 180, which was applicable to Mt. Vernon Place, and the Act of 1854-, Chap. 9, which conferred on the city the, power of regulating steps, porticoes, hulk windows or other ai’ohitectural ornaments.

A statute authorizing a municipality to pass ordinances regulating the limits within which such things can he erected would seem to imply that they could have been lawfully erected before that statute was passed, as otherwise there would be no occasion for authorizing their regulation. But section 29 of Article 4 of Local Code of 1888 (sec. 33 of 1860) provided that the “Mayor and City Council shall have power to pass all ordiances necessary to give effect and operation to all the powers vested in the corporation,” and section 721 of Article 4 of Local Code of 1888 (sec. 32 of 1860) provided that: “The Mayor and City Council may pass ordinances for * * * protecting the public and city property, rights and privileges, from waste ⁶¹² or encroachment, and for promoting the great interest and insuring the good government of the city,” and by section 378 of Article 4, Code of 1888 (sec. 797 of 1860), the Mayor and City Council had power to pass ordinances to prevent and remove nuisances. These and other provisions which might be referred to gave the Mayor and City Council control over the streets and ample authority to pass ordinances for their protection. They passed many ordinances in regard to some of the alleged encroachments referred to.

We are then of opinion that not only by reason of the contemporaneous construction, which we may assume from what we have said, was placed on them by the member's of the Bar, and apparently concurred in by this Court, at least so far as it has given expression to its views, and from the necessity and the general custom in regard to many of the privileges-—not now referring to the question whether the city is not equitably, if not legally, estopped by its action and inaction—but by the statutes we have referred to there can be no serious do-ubt that the city had the power to pass ordinances and grant such permits as are here in question. Being of that opinion it is perhaps unnecessary to do more than at once apply the legal conclusions we have reached to the facts in the several cases, but it may be well to first refer to authorities on some of the more important privileges. 5. Vemits and Areas. In 3 Dillon Mun.

Cor. (5th Ed.), sec. 1178, etc., that learned author discusses the subject of vaults under sidewalks, areas, etc. In Section 1178 it is said: “In many cities lot proprietors upon streets are per* mitted or not forbidden (italics ours) to make openings in the sidewalks, in order to- obtain an entrance into the base* ment or cellar. It is also the usage that owners of buildings may make openings under the sidewalk or street to obtain additional cellar room.” He says, however, ■ that, regardless, of whether the fee is in the municipality or in the abutting owner, such vaults are subject to legislative and municipal regulation. In section 1179 he quotes at length from Nelson ⁶¹³ v. Godfrey, 12 Ill. 22 .

After declining' to admit that the owner by reason of his ownership of the adjoining property could claim the absolute right to take up the. sidewalk and extend his coal cellar under it, the Court in that case said: “Rut a.s such a privilege is. a great convenience in a city, and may with proper care be exercised with little or no inconvenience to the public, we think that the authority to make such cellars may be implied, in the absence of any action of the corporate authorities to the contrary, they having been aware of the progress of the work.” That was followed in Gridley v. Bloomington, 68 Ill. 47 , and in Gregsten v. Chicago, 145 Ill. 451 , it was held that (quoting from the syllabus for convenience) : “If is. the general doctrine that municipalities, under the power of exclusive control of their streets, may allow any use of them consistent with the public objects for which they may be heldV Again, it. is said: “A city under special legislative authority, as well as its general powers (italics ours), may grant permits for and regulate the building of vaults under the streets, alleys, and sidewalks, and require such compensation for the privilege as it may deem reasonable and just, when such permits relate solely to such use of the alleys, etc., a.s is in nowise inconsistent, with their use by the public, and such permit when accepted and acted on by the holder by making costly improvements required will constitute a contract between the city and such holder irrevocable at. the mere will of the city.” Again, it was said in that case: “The approval by the City Council of a. permit of the Board of Public Works, to one to construct a vault under an alley may be inferred by the acts of the holder of such permit, in excavating the earth and making a costly vault, and the use and occupation of the same for