Mayor of Baltimore v. Fairfield Improvement Co.

McSherry, C. J., delivered the opinion of the Court. This appeal was taken from a decree of the Circuit Court of Baltimore City. That decree enjoined the Mayor and City Council of Baltimore from placing and keeping on a twenty-acre tract of land owned by the city an unfortunate woman afflicted with leprosy. This land adjoins property belonging to the Fairfield Improvement Company of Baltimore ; and the property of the company is divided into building lots.

Many lots have been sold and quite a number of houses have been built in the vicinity of the city’s land. This twenty-acre tract was acquired by the city perhaps half a century ago. It is situated some three miles distant from the city and lies in Anne Arundel County. Up until the year eighteen hundred and eighty-three it was occupied as a place of quarantine against contagious diseases brought toward the city by water; and there were hospitals upon it that were used for the isolation, and treatment of similar diseases originating or found in the city during the prevalence of epidemics.

In or about the year just named the Mayor and City Council purchased other property, located near Hawkins’ Point, some sixteen miles distant from the city, and there established a quarantine station, ³⁶⁰ which has ever since been in charge of a resident physician selected by the city. There have been no cases of contagious or infectious diseases treated upon this twenty-acre lot or tract since eighteen hundred and eighty-two or three; and it was subsequent to that time that the Fairfield Improvement Company’s property was developed. A great many persons—chiefly employees of fertilizer and other factories—now reside in Fairfield; and doubtless they located there in the belief that the city had permanently abandoned the hospital and pest-houses formerly used in that locality. The ground upon which the relief by injunction was sought is, the apprehended injuiy to the company’s contiguous property by the placing of a person suffering with such a loathsome and horrible disease in close proximity thereto.

The statute law of the State confers upon the Mayor and City Council plenary power to establish, both within and beyond the city’s limits, hospitals and pest-houses for the isolation and treatment of contagious and infectious diseases. Secs. 378, 409, Art 4, Code Public Local Laws. The preservation of the public health renders such legislation highly essential, and the authority of the General Assembly to enact it, in the exercise of the police power of the State, is beyond question or controversy.» Within the scope of the power thus granted the whole authority of the State is included and delegated (Harrison v. Mayor, &c., 1 Gill, 264 )1 and, therefore, whatever the State may directly do in furtherance of these objects, the municipality, clothed with a delegated power from the State, may also lawfully perform, though there may be a difference as to the legal consequences resulting from an exercise of the power by the State directly, and those flowing from an exertion of the same power by the municipality. If it be conceded that the State may, in exercising a public power, create a private nuisance with immunity, the immunity grows out of the public necessity and rests upon the State’s sovereignty; but it ³⁶¹ cannot—or at all events, will not, in the absence of an explicit legislative declaration—be assumed that the State would, if directly exercising the same power, so exercise it as to produce or cause an injury to the rights of property of an individual, unless, perhaps, the very doing of the act directed to be done will necessarily and unavoidably, under any condition, result in the creation of what would be, but for the authorization, a private nuisance.

The delegation of a power to do an act, whilst conferring full authority to perform the act itself, does not, therefore, without more, essentially and without exception, carry the right to so do it as to inflict loss or injury upon an innocent individual. As thus understood the power of the municipality to erect and maintain hospitals and pest-houses may be exerted and applied precisely as the same power if not delegated could have been availed of by the State. Acts done under such delegated authority, which without that authority would in themselves be public nuisances, furnish no ground for civil or criminal proceedings at the instance of the State; for the authority to do the acts makes them, when done, perfectly lawful as respects the public; and being lawful, there is no superior public right which they invade or violate. These are what have been sometimes described as “ legalized nuisances,” (Wo od on Nuisances, ch. 23), since they are strictly necessary and probable results of legislative authorization.

They ultimately rest for their sanction upon the paramount power of the Legislature, and the importance of the public benefit and convenience involved in their continuance as affecting the greatest good to the greatest number. Northwestern Fertilizing Co. v. Village of Hyde Park, 97 U. S. 659 . But however free from interference by the public, acts of this character may be when authorized to be done by a municipality under competent and sufficient legislative grant, the right of an individual to complain of the special injury sustained by him as a consequence of their being done is, ordinarily, in no way impaired or affected. The mere naked grant of power to a municipality to do acts, which if done without the sane ³⁶² tion of that power would be nuisances, does not in all instances carry with it a guaranty of immunity from claims for private injuries that result directly from the exercise of the power.

And this is necessarily so in the absence of an explicit or implicit legislative declaration to the contrary, because the Legislature cannot be presumed, from a general grant of authority, to have intended to sanction or legalize any acts or any use of property that will create a private nuisance which will injuriously affect the property of another. That the State may, in the exercise of the police power, and for the preservation of the public health, authorize the summary destruction of private property contaminated with the germs of disease, is thoroughly and definitively settled. Deems v. Mayor, &c., Baltimore, 8o Md. 174, 175; Boehm and Loeber v. Mayor, &c., 61 Md. 259 ; Mugler v. Kansas, 123 U. S. 62 . But there is a broad distinction between a summary destruction of an offending thing, and a direct injury to unoffending property—that is, property itself not liable to destruction because not dangerous to the public health or safety.

The immediate and imminent danger to life or health justify, under the police power, the one; whilst the other is left to be redressed in the due course of the law. However broad, therefore, may be the powers of a municipality to erect and maintain hospitals and pest-houses for the segregation and treatment of contagious and infectious diseases ; and however necessary their exercise may be, they must, generally speaking, be exerted and put into operation subject to the no less well defined right of the individual to possess and enjoy his unoffending property without the molestation of a nuisance. . It cannot be pretended that the city authorities could, even under their comprehensive powers, locate a pest-house in the midst of a thickly settled community. The right to locate the pest-house does not carry with it or include the right to locate it in a place where other persons would be exposed to the contagion and disease. “ Powers given by statute are not to be used to the peril of the lives or limbs of the Queen’s subjects.

They ³⁶³ are to be exercised reasonably, and with due care, so as not by negligence to cause dangers to others,” observed Watson, B.,as quoted in 2 Addison on Torts, sec. 1041. Where commissioners of sewers and boards of health have obtained statutory powers of drainage into rivers, streams and natural water courses, the power must be exercised so as not to create a nuisance or interfere with the private rights of individuals. 2 Add. on Torts, sec. 1085. The mere power to erect and maintain hospitals and pest-houses does not imply or include the further power to erect and maintain them in such a way or at such a place as will cause injury to others. And so in Brown v. Mayor, &c., 3 Barb. 254 , it was held that statutory authority given to commissioners of emigration to lease or purchase docks where emigrants may be landed, will not justify them in leasing for that purpose property situated in a thickly populated part of a city where the contemplated use of the premises would be a serious menace to the health of the community.

See too, Co. Com. v. Wise, 71 Md. 52, 53 ; Inhab. West Orange v. Field, 37 N. J. Eq. 600; Dan. & Nor. R. R. C. v. Town of Norwalk, 37 Conn. 109 ; Seifert v. Brooklyn, 101 N. Y. 136 ; Wood on Nuisance, sec. 764. Whatever immunity a municipality may have in exercising a public, as contradistinguished from a strictly corporate power, it does not result from some collateral act or from the negligent doing of a permissible act.

The infliction of an injury upon another is neither the natural nor the necessary result of an exercise of the power to build a hospital; but if injury does ensue it would result from the collateral circumstance that the place selected was not the appropriate site, or from the negligent method of doing what would otherwise be