Mayor of Baltimore v. Clunet ex rel. Clunet

Bartol, J., delivered the opinion of this Court: This is an appeal from an order of the Circuit Court of Baltimore city, passed on the 6th day of February 1865, granting an injunction to restrain the appellant, its officers, agents and servants from proceeding to enforce an Ordinance entitled, “An Ordinance to open a street in continuation of Holliday street, from Baltimore ^street to Second street,” and from taking any further steps or proceedings thereunder for the opening of such street, until the matter can be heard and determined in equity. The complainants are the owners of property on the south side of Baltimore street, and the apprehended damage and injury to result to them from the execution of the Ordinance, are sufficiently alleged on the face of the bill to entitle them to maintain the suit; provided a Court of Equity has jurisdiction of the cause, and the objections urged to the validity of the Ordinance be well founded. These objections will be first considered; they are set forth by the bill in a very clear and forcible manner, and have been presented in the argument with very great ability and power. Indeed, the case has been most ably argued on both sides; and it is a source of regret that in the press ⁴⁶³ of business upon the Court, and the desire of rendering a speedy decision, we have 'not been able to enter upon so thorough an examination and discussion of the interesting questions involved as their importance deserves.

We must content ourselves with a brief statement of the conclusions we have reached, after as full an examination of the authorities and consideration of the subject as we have been able to make. By the second section of the Ordinance, the Judges of the Appeal Tax Court, in the condemnation and opening of the proposed street, are required to proceed in accordance with the provisions of Ordinance No. 15, of the Revised Ordinances of 1858, approved June 5th, 1858, except as otherwise provided by the Ordinance approved February 28th, 1861. This last Ordinance merely abolished the office of Commissioners for opening streets, and conferred their powers upon the Appeal Tax Court. The exception, therefore, need not now be more particularly noticed.

By the Revised Ordinance of 1858, No. 15, sec. 7, it is provided, ‘ ‘That in eyery case where it shall be necessary to effect the object proposed, that a part only of a house and lot, or of a lot, shall be taken and used, or destroyed, and the owner thereof shall claim to be compensated for the whole, the Commissioners shall ascertain the full value thereof, as if the whole lot and improvements were necessary to be taken and used for such proposed object.” It then provides for the payment to the owner of the whole of such valuation, and for the sale of the residue of the lot not necessary to be taken and used for the street; and the amount which is derived from such sale is appropriated to the payment of the expense of the improvement, thereby diminishing to that extent the cost of the work assessed upon the parties benefited. It is contended that this provision of the Ordinance is illegal and invalid, because it is taking the property of a citizen, when it is not required, for public use, contrary to the Constitution and laws of the State. This provision did. ⁴⁶⁴ not originate with, the Ordinance of 1858; it is found ⅛ that of the 9th of March 1841, passed to carry into effect the powers granted to the Mayor and City Council by the Act of 1838, ch. 226. The same provision is found in every Ordinance of the city passed since that time, in relation to this subject, and which have been repeatedly before this Court for examination and construction, and repeatedly declared to be a valid exercise of the power delegated by the Act of 1838, ch. 226.

See Alexander & Wilson, vs. The Mayor & C. C. of Balt., 5 Gill, 383 . Richardson vs. Same, 8 Gill, 433 . The Methodist P. Church vs. Same, 6 Gill, 391 . Stewart vs. Same, 7 Md. Rep., 500.

State, at the relation of McClellan, vs. Graves, 19 Md. Rep., 351 . It is true that the particular objection now made, does not appear to have been suggested in any of those cases, but the judgment of the Court pronounced in some of them, necessarily covered it, and would be inconsistent with the position here taken by the appellees. In the face of these repeated decisions, we should feel very great hesitation in pronouncing unconstitutional and void a provision of an Ordinance appearing to have had so repeatedly the sanction of the Appellate Court, and which has been in operation for twenty-four years. But, looking at this as a new question, wholly uninfluenced by any previous decision, we should have little hesitation in saying that this provision of the Ordinance is free from the objection urged.

It does not sanction the taking of any property from the owner, without his consent, not necessary for the public use. If more land is taken, in any case, than is required for the bed of the street, it is always done with the consent of the owner, to whom the option is given of retaining the fragment of a lot when part is taken by the city, or of claiming compensation for the whole, and allowing the part not taken to be sold for the benefit of the parties charged with the cost of the improvement. They are not injured by the proceeding, for there can be no more’ certain mode of ascertaining the value of the part of a lot ⁴⁶⁵ taken, than by selling at public auction the part that is left, and deducting from the value of the whole the sum realized by the sale. In the matter of Albany Street, the Supreme Court of New York expressed the opinion that such a provision would be free from objection. 11 Wend., 151 .

Properly construed, the Ordinance does no more than to prescribe a mode by which the true value of property taken for public use may be ascertained, and the parties benefited assessed therefor. In the opinion of this Court, the Ordinance before us is not obnoxious to the objection made by the appellees in the first point of their brief. We are also of opinion that the objection to the Ordinance stated by the bill, and presented in the brief of the appel-lees in their third point, is not well founded. This point is, that the Ordinance is invalid, because it did not provide for an appeal to the Superior Court from the decision of the Appeal Tax Court.

By the terms of the Ordinance of 1858, which govern the case before us, the appeal is directed to be made to the City Court of Baltimore. The appellees insist, that by the Constitution and laws, the right of appeal to the Superior Court is granted, at the option of the paity appealing; and that it is a fatal objection to the Ordinance, that it deprives a party aggrieved of this option, and limits his appeal to the Criminal Court alone. At the time of the adoption of the Constitution of 1851, the exclusive jurisdiction over such appeals was in the City Court; by that Constitution the same jurisdiction was conferred upon the Criminal Court. It was not given to the Superior Court by the 11th section0of the 4th Article.

The general words there used must be construed as defining the original jurisdiction of the Superior Court, and do not refer to appeals from inferior tribunals, or in street cases; they are regulated by statute. By the Act of 1853, ch. 451, the Superior Court was authorized to exercise jurisdiction over appeals in street cases concurrently with the Criminal Court. We see no reason why that Act was not a constitutional exercise of legislative poAver. Bub that inquiry is not in ⁴⁶⁶ volved in tbe present case.

Conceding that Act to be constitutional, it was still competent for tbe Mayor and City Council, in legislating on sutíh cases, to provide for an appeal either to the Superior or Criminal Court, they having concurrent jurisdiction. Such Ordinances are passed in execution of the powers conferred bythe Act of 1838, oh. 226, which simply requires, by its second section, that provision shall be made securing to the owner the right of trial by jury; this is fully accomplished, whether the appeal be to the Superior or the Criminal Court. It is eminently pro-' per that the Ordinance should designate the Court to which such appeal will lie in any given case; otherwise the greatest difficulty and confusion might arise from conflicting decisions of different juries, in regard to the same subject matter of inquiry, if the various parties interested had the right of prosecuting an appeal, at their option, before one or the other Court. That such legislation by the city has not heretofore been objected to, will appear from the case of Stewart vs. The Mayor & C. C. of Balto., 7 Md. Rep., 500 , in which this Court had before them the Ordinance of 1853,.

No. 58, approved June 8th, 1853, after the Act of 1853 went into effect, and in which parties were tied down to their appeal to theo0riminal Court. But on this question we think the Code, vol. 2, Art. 4, sec. 831, is conclusive, and free from all doubt or difficulty. By that section, the power and option is plainly given to the Mayor and City Council, in providing for appeals, to direct that they shall be taken either to the Superior or the Criminal Court. One more objection .to 0the validity of this Ordinance was insisted on in the argument, and remains to be considered; this