Mayor of Baltimore v. Canton Co.

Markell, J., delivered the opinion of the Court. This is an appeal by the plaintiff from a judgment for the defendant (appellee) for costs, in a suit for certain “minor privilege charges.” Defendant owns two piers, each built into the navigable waters of the Patapsco in front of land which, since 1918 or earlier, has been within the Baltimore City limits. In 1922 and 1930, respectively, defendant made application for consent of the Harbor Engineer to extensions of these piers within the pierhead line. Permits for the extensions were granted by the Board of Estimates, “subject to inspection and minor privilege charges.” The applications were in forms acceptable to the city; permits would not have been granted unless ⁶²¹ these forms had been used.

The extensions were made, and the defendant has regularly paid state and city property taxes on them. Before 1917 plaintiff did not make minor privilege charges for improvements made into the Patapsco, but it has claimed such charges from the owners of all such improvements made since 1916. The rate of the annual charge was fixed at y¿ cent per square foot of surface area of the improvements, without regard to location, cost, use or value of the structures, and was not based upon the cost of governmental regulation. The annual charges claimed from defendant are $105.88 and $1.10 respectively, none of which have ever been paid.

They amount to $2,064.66 (for the years 1923 to 1941, inclusive, and part of 1922) and $12.10 (for 1931 to 1941, inclusive). Suit was brought for these amounts on December 5, 1941. The case was tried without a jury. A clear comprehensive opinion was filed, and judgment was entered for the defendant for costs.

It was stated at the argument that some owners have regularly paid the charges made, others (like defendant) have never paid them, and the claims for uncollected charges now amount to some $375,000. Plaintiff claims the right to make charges for such improvements under Sections 7, 8, 47 and 48 and other provisions of the Baltimore City Charter (1938 Edition) relating to the city’s “title” to “land under water.” Defendant claims the right to make such improvements, without paying for the right, under Section 47 of Article 54 of the Code of 1939. Plaintiff argues (1) that it holds absolute title to the land in the bed of the Patapsco, and therefore has the proprietary right to charge defendant for use of that land, and (2) that it has absolute control over that land, and under Section 7 “title” refers to such control, and therefore it has the power to charge defendant for the privilege of using the land. These opposing contentions present a question of statutory construction.

The legislative intent may best be found in the words of the statutes, the context and the ⁶²² occasion, without undue refinements or generalizations about things (such as franchise taxes) which defy generalization. Either of the opposing contentions is a possible legislative intent. Under power to regulate commerce the federal government, with no title at all, may require a riparian owner to pay for a license to use his own property. United, States v. Appalachian Electric Power Co., 311 U. S. 377, 427, 428 , 61 S. Ct. 291 , 85 L. Ed. 243 .

The City of Baltimore may exact payment for a franchise to use turnpike roads, owned by turnpike companies, and streets owned by individuals but used by .the public as highways. Patapsco Electric Co. v. Baltimore, 110 Md. 306 , 72 A. 1039 . On the other hand, the Legislature, in imposing a franchise tax measured by use of streets, may exclude turnpike roads and private rights of way from the measure of the tax. Park Tax Case, 84 Md. 1 , 35 A. 17 , 33 L. R. A. 503; City of Baltimore v. United Rys. & Electric Co., 107 Md. 250 , 68 A. 557 , 14 L. R. A., N. S., 805.

A statute which granted a statewide franchise that has not been exercised may be repealed pro tanto by one which provides that no use shall be made of the streets of a particular city without the consent of the city, “subject to such franchise tax and regulations” as the city may prescribe. Kelly v. Consolidated Gas, Electric Light & Power Co., 153 Md. 523 , 138 A. 487, 490 . But the lawful exercise of a franchise cannot be prevented by the City of Baltimore by refusing a permit. State ex rel. v. Latrobe, 81 Md. 222, 232-234 , 31 A. 788 ; Hooper v. Baltimore City Passenger Ry.

Co., 85 Md. 509, 514 , 37 A. 359 , 38 L. R. A. 509. In each instance (in the absence of constitutional questions) the legislative intent is controlling. Plaintiff’s contentions are based on new provisions of the “New Charter” of 1898, Acts of 1898, Ch. 123. To construe these new provisions the powers of the city before 1898 should be considered.

The Act of 1745', Ch. 9, provided: “That all Improvements of what Kind soever, either Wharfs, Houses, or other Buildings, that have, or shall be made out of the ⁶²³ Water, or where it usually flows, shall as an Encouragement to such Improvers, be for ever deemed the Right, Title and Inheritance of such Improver or Improvers, their Heirs and Assigns for ever.” This provision was repealed by adoption of the Code of 1880. By the Act of 1862, Ch. 129, Sections 46, 47 and 48 of Article 54 of the Code of 1939 were enacted. Section 47 provides: “The proprietor of land bounding on any of the navigable waters of this State shall be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements and other accretions as above provided for shall pass to the successive owners of the land to which they are attached, as incident to their respective estates. But no such improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made.” The Act of 1783, Ch. 24, “An Act appointing wardens for the port of Baltimore-town, in Baltimore county,” recited that “it is of importance to the state, that proper persons should be appointed to preserve the navigation of the bason and harbour of Baltimore-town, in Baltimore county,” and provided in Section 8: “That no wharf or wharves shall be run out, made, altered, enlarged, or extended, * * *, so as to divert the course of the said channel, obstruct the harbour or bason, or to the injury of the same; and that no person or persons shall make, alter, or extend, a wharf or wharves, * * *, without laying before the said wardens a plan of his or their intended wharf or wharves, and without consent first obtained, under the seal of the board, to carry the same into effect; * *.” The Act of 1784, Ch. 39, required that a correct survey of the town be made, and provided that the lots and streets, when so laid out anew, “and the ground and other improvements made and extended out of the water,” when surveyed and laid off according to the act, should be part of the town, as if originally included therein. “Saving to all persons whatsoever their right of property in any of the said ground so made and extended as ⁶²⁴ aforesaid, and in the lots or land from which such ground may be made and extended, and the right to make and extend ground as aforesaid, and the right to the water or land covered by water, which rights are not meant or intended in any manner to be interfered with, determined on, or affected by, this act.” (Italics supplied).

The original charter of the City of Baltimore (Acts of 1796, Ch. 67) in Section 9 empowered the city to pass all laws and ordinances necessary “to provide for the preservation of the navigation of the bason, and Patapsco River within the limits of the City of Baltimore, and four miles thereof,” and in Section 10 transferred to the city “all powers, and authorities” of the port wardens. The above provisions of Section 8 of the Act of 1783 were re-enacted practically verbatim in the Codes of 1860 and 1888 and the New Charter of 1898, except that instead of the port wardens the mayor and city council was mentioned in the Code of 1860, and the Harbor Board in the New Charter. Code of 1860, Sec. 267; Code of 1888, Sec. 351; Act of 1898, Sec. 463. By the Act of 1908, Ch. 170, p. 611, the Harbor Engineer was substituted for the Harbor Board and verbal changes were made.

Charter 1938, Sec. 558. The above provision of Section 10 of the original charter was retained practically verbatim in the Code of 1860 and was enlarged in geographical scope in 1884 and again in 1908-. Code of 1860, Sec. 703; Code of 1888, Seei 343; Act of 1898, Sec. 6; Charter 1938, Sec. 6 (8). Originally much of the shore line of the Baltimore Harbor was concave.

Improvements by making land out of the water, laying out streets- and building wharves and piers, to a considerable extent made rectangular harbor lines out of a curving shore. Both the natural and the improved state of the harbor early gave rise to (1) conflicting claims of riparian owners to improvements and to the right to make improvements and (2) need for governmental regulation (a) to preserve navigation and (b) to ration space on concave lines so that riparian owners may make use of their own rights and not ob ⁶²⁵ struct and nullify each, other’s rights. The State (1) left questions of title to the courts, retained title to land under water until acquired by riparian “improvers” (including the City of Baltimore) under the Act of 1745, and gave no title to the city except as an “improver,” and (2) “delegated” its “full legislative power” to the city “for local harbor regulation,” (a) to preserve navigation and (b) to ration space for “improvements.” Cahill v. Mayor and City Council of Baltimore, 173 Md. 450, 455, 459, 460 , 196 A. 305 . The delegation of power of governmental regulation for these two purposes was complete in the original charter of 1796, including the former “powers and authorities” of the port wardens under the Act of 1783.

Supra. The rights of riparian owners subject to such governmental regulation, were reaffirmed in the Act of 1784, Supra. Under the Act of 1862 such rights are substantially the same as under the Act of 1745, but are further protected by the provisions of Section 48, Art. 54, Code of 1939: “No patent hereafter issued out of the land office shall impair or affect the rights of riparian proprietors, as explained and declared in the two preceding sections; and no patent shall hereafter issue for land covered by navigable waters.” We shall assume, without deciding, that Section 48 could be repealed, and also Section 47 to the extent that improvements have not actually been made. Under the Act of 1745—or 1862—“the riparian owner had no vested title to the land covered by water immediately in front of his property, nor to the improvements built out of the water, until the improvements had been actually completed.

Giraud’s Lessee v. Hughes, 1 Gill & J. 249.” Brady v. Baltimore, 130 Md. 506, 510 , 101 A. 142, 143 ; Cahill v. Mayor and City Council of Baltimore, supra, 173 Md. 456 , 196 A. 305 . The required consent of the city agencies was given by the establishment of limiting lines. The power to establish such a line includes power to change it. The right to build piers to a particular pierhead line, conferred by an ordinance ⁶²⁶ of 1880, “was a privilege subject to revocation at any time before it was acted upon, and the ordinance of 1881, which repealed all ordinances inconsistent therewith [and established a new line], was a revocation of this privilege.” Classen v. Chesapeake Guano Co., 81 Md. 258, 267 , 81 A. 808 , 809; Cahill v. Mayor and City Council of Baltimore, supra, 173 Md. 456, 457 , 196 A. 305 .

Subject to such governmental regulation by the city (and by the federal government), the reparian owner’s right to make improvements in the water was “a franchise; a vested right, peculiar in its nature; a quasi property, of which [he] could not lawfully be deprived, without [his] consent.” Casey’s Lessee v. Inloes, 1 Gill 430, 501 , 39 Am. Dec. 658 ; Baltimore & O. R. Co. v. Chase, 43 Md. 23 ; Horner v. Pleasants, 66 Md. 475, 477 , 7 A. 691 ; Brady v. Baltimore, 130 Md. 506, 510, 511 , 101 A. 142 . Riparian owners had the right “to extend or improve out [their] lot to the limit prescribed by the city authorities, and according to the well settled law of this State, they could not be deprived of this right without their consent.” (Italics supplied.) Mayor, etc., of Baltimore v. St. Agnes Hospital, 48 Md. 419, 421 . “These rights, thus secured, [by the Act of 1862] are valuable; they are property, according to repeated decisions; and of which the owner cannot be deprived without his consent or by other competent legal means. Dugan v. Mayor, etc., of Baltimore, 5 Gill & J. 357 367; Casey’s Lessee v. Inloes, 1 Gill 501 , 39 Am.

Dec. 658 ; Baltimore & O. R. Co. v. Chase, 43 Md. 23 ; Buccleugh v. Met. Board of Works, 5 H. L. 418. And whenever those rights are invaded, or their enjoyment obstructed, the owner is entitled to his remedy for redress, as in other cases of the violation of the rights of property.” Garitee v. Mayor, etc., of Baltimore, 53 Md. 422, 433 ; Culley v. Hollis, 180 Md. 372, 374, 375 , 25 A. 2d 196 . When reparian property is taken by the city, compensation must include the value of these rights.

Marchant v. Baltimore, 146 Md. 513 , 126 A. 884 . In Tome Institute v. Crothers, 87 Md. 569 , 40 A. 261, 266 , ⁶²⁷ it was held that a riparian owner could sell his “water privilege” under the Act of 1824, Ch. 33, and retain his land. The Act of 1824 gave to riparian owners at Port Deposit “a right of the same description” as the right to improve under the Act of 1745. In Mayor, etc., of Baltimore v. St. Agnes Hospital, supra, it was held that improvements made by the city in front of an unopened paper street (to which it had no title) on the hospital’s land, vested in the