Mayor of Baltimore v. Bouldin

Bowie, C. J., delivered the opinion of this Court: When this case was before this Court, upon a former ap ³⁶⁸ peal, from an order dissolving an' injunction, on a motion to dissolve,- in a case beard upon bill, answér and proof taken under tbe Act of 1835, cb. 380; tbe order dissolving tbe injunction was reversed, because tbe equity of tbe bill was'not fully d'enied by sucb an answer as could authorize tbe passage of tbe order appealed from. Vide, 15 Md. Rep., 18 to 22. In tbe opinion of tbe Court announcing that conclusion, it is declared, to be tbe established doctrine,'that unless tbe owners of a majority of tbe feet fronting on a street to be paved, assent in writing to tbe paving, tbe proceedings of tbe city authorities, directing tbe paving to be done, are null and void, and- a Court of Equity has, upon application of tbe non-assenting owners, jurisdiction to prevent, by injunction, the sale of their property to pa|y for such paving; for which they refer to Holland vs. The Mayor, &c., 11 Md. Rep., 186 . That case turned on tbe 1st section of tbe Ordinance of 1850, No. 15, and- tbe Acts of Assembly therein; The same doctrine referred to, is reaffirmed in tbe more recent cáse of The Mayor, &c., vs. Eschbach, 18 Md. Rep., 281 , in which, referring to tbe same ordinance, it is said-: “The City Commissioner, by tbe 1st, 34th,-35th and 36th secs, of Revised'Or dinance No. 15 of 1850, with tbe approbation of tbe Mayor, is vested with power and authority,-to enter into and make contracts for grading and paving, and to assess taxes therefor, in two classes of cases only : 1st, when tbe proprietors of a-majority of tbe feet oí ground, binding and fronting on any condemned sto’eet, lane or alley, make application to him in writing to have sucb street, lane or alley graded and paved; and, 2nd, when all tbe proprietors of the- ground fronting on a street, lane or alley, not formally condemned, make a like application for grading and paving.” The learned Judge assigning tbe reasons fot tbe decree now appealed from, and under consideration, relies upon tbe cases last cited, viz : It being apparent in this case, that tbe application to pave tbe Belair Avenue was not ³⁶⁹ signed by all the proprietors of ground bounding on said Avenue.

I will sign a decree overruling the motion to dissolve the injunction, and mating the injunction perpetual, upon the principle announced in the Mayor & C. C. of Balto., vs. Eschbach, 18 Md. Rep., 276 ; that as the street in question was not to be considered as a condemned street, on the true construction of the Revised Ordinance of 1850, No. 15, secs. 1 and 36, the City Commissioners had no power,” &c. In Eschbach’s case it was admitted, that Hull street from Fort Avenue to the Port Warden’s Line, was never formally condemned, and that the application to have it graded and paved, was made by only a part of the proprietors of the ground binding and fronting thereon; hence, in the language of the Court, “It was obvious that the application was not sufficient to bring the case within the jurisdiction conferred by the ordinance on the Commissioners,” “nor to give him any official discretion or authority to take any proceedings, or make any contract respecting it. ” That was also an action at law, in which the plaintiff had to stand or fall upon strict legal and technical grounds. In this-case, all these jurisdictional facts are disputed, and to be established by the appellee, seeking the injunction against proceedings which are prima facie, presumed to be legal and regular. The appellants insist that Belair Avenue, being already a condemned street to the extent of forty feet, the notice preliminary to the exercise of the power of widening it, was legally sufficient; and when the street had been widened, under Ordinance No. 61, of 1851, it was, to all intents and purposes, a formally condemned street, to which the regulations prescribed for that class of streets properly applied.

The appellees maintain the converse of these propositions,alleging that the notice that application would be made to widen Belair Avenue, &c., as laid down on Poppleton’s plat, &c., could not be made to cover the bed of a street or highway of forty feet already existing, but applied only to ³⁷⁰ the enlargement of the width of the street from forty to fifty feet. These objections involve 1st, the authority to widen; 2nd, the right to pave. The Act of 1838, ch. 226, sec. 1, invests the Mayor and City Council of Baltimore with power and authority to provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, &c., within the bounds of said city, which, in their opinion, the public welfare or convenience may require; to provide for ascertaining damages and benefits, and for assessing and levying, either generally on the whole assessable property within said city, or specially on the property of persons benefited, the whole or any part of the damages and expenses which they shall ascertain will be incurred in locating, opening, extending, widening, &c.; to provide for granting' appeals, for jury trials, &c.; provided, nevertheless, that' before the Mayor and City Council proceed to execute any of the powers vested in them by that Act, at least sixty-days’ notice shall be given of any application which may be made for the passage of any ordinance, by advertisement in at least two of the daily newspapers in the' city of Baltimore. The powers granted by this Act, are such as are essential to the existence and expansion of a great municipality, and confided to a local legislature, selected by its citizens for the government of its concerns.

It would be fatal to the objects for which these powers are delegated" by the General Assembly of the State, to require all the notices of the application for ordinances to carry into effect these powers, to specify with technical precision the objects for which the applications will be made. Such particularity would embarrass all the subsequent proceedings dependent on the notices, and render the rights acquired under them so precarious as to destroy all confidence in the local legislation of the city. The notice in this case was, in our opinion, a sufficient ³⁷¹ compliance with the proviso of the Act above cited, in accordance with which Ordinance No. 61, of 1851, was passed by the Mayor and City Council. The authority conferred by this ordinance on the Commissioners, “to widen and condemn North Gay street, or Relair Avenue, to the width of which it is laid down on Popplcton’s map,” was a legitimate exercise of the power conferred by the Act.

Such being the case, it follows that the proceedings of the Commissioners, under that ordinance, are subject to the regulations of Ordinance No. 17, approved April 30th, 1850, and Ordinance No. 15,1850, approved 20th May 1850, under which arises the question, whether Belair Avenue was a “street formally condemned under any law or ordinance?” What constitutes a formally condemned street, becomes a material question in commencing any proceeding for paving or grading, as in the one case the owners of a majority of the front feet is sufficient; in the other, the unanimous consent is required. This question has not been, as far as we are informed, judicially determined. In the case just cited, the learned counsel for the appellants contended, that, according to the true construction of the laws and ordinances relating to the paving of streets, and especially of Revised Ord. 1850, No. 15, secs. 1 and 36, a majority was sufficient to vest jurisdiction in the City Commissioner, in every case where the title to the heel of the street was, at the time of the application, owned by the City Authorities, either by formal condemnation, or by deed or dedication. Vide Dulany’s Argument, 18 Md. Rep., 277 .

The 1st and 36th sections of the ordinance, upon the true construction of which the decision in this case mainly depends, will be better understood when placed in juxtaposition. The ordinance is entitled: “An ordinance establishing a system for grading, paving and re-paving the streets,” &c. Sec. 1 enacts, “that when the City Commissioner shall receive an application, in writing, for paving to bo done in any unpaved street, &c., from the proprietors of the majority of the feet of ground binding and fronting on such ³⁷² street, ozc., or the part thereof to he payed, it shall be