Mayor of Baltimore v. Musgrave

Miller, J., delivered the opinion of the Court. A municipal corporation has the right to abandon any contemplated improvement, and repeal at its pleasure any ordinance providing for the same, and after such abandonment, property owners cannot compel the corporation to take and pay for property condemned for such purpose, nor does any action lie against the corporation for such abandonment merely. These propositions have been settled by many decisions of this Court. Graff vs. Mayor, &c., 10 Md., 544 ; McClellan vs. Graves, 19 Md., 351 ; Norris vs. Mayor, &c., 44 Md., 606 .

But the same authorities hold, that where the owner of property has suffered loss or damage by the acts or delay of the corporation in any such case, he is entitled to redress for the same, and that is the foundation of the action in the present case. The plaintiff is the owner of a tannery on Jones’ Falls, in the City of Baltimore, located between Front street and the stream, and between Gray and Hillen streets, and this establishment was within the lines prescribed for the improvement of Jones’ Falls, by the 12th section of the ordinance on that subject of the 24th of April, 1812, and the record shows that on or about the 6th of January, lS^, the Commissioners appointed' under that ordinance came to his establishment with their clerk and janitor, and exhibited to him a map or drawing of the improvement, including his premises, and notified him that they had condemned his property and would require possession of it at the earliest moment, as it was within that part of the section comprising it on which they desired to begin their work. They also further notified him that as from the nature of the tanning business, it would take him some time to work up his stock and close up his business so as to be able to give possession of his property to the city, he must so regulate his business as to bring it to a close at the earliest moment, and take in no new stock of ²⁸³ bark or hides, but content himself with working out what he had on hand at the time, and one of the Commissioners from time to time afterwards urged the same thing upon him. This request or notice was given, accepted and complied with in good faith, and was never countermanded.

In consequence of it, and for no other reason, he at once commenced closing out his business, which he would otherwise have prosecuted as usual, and in thus closing out he did about half work for six months, and no work at all for about a year afterwards until the latter part of April, 1874, when he made up his mind the improvement would not go on, and at once commenced making arrangements for procuring bark and resuming his work. It is for the loss and damage occasioned by this suspension of his business, that he now sues, and it is obvious that his right to recover depends entirely upon the question whether it was within the scope of the authority vested in these Commissioners to give the notice and make the demand or request referred to ; for it is very clearly settled that one who contracts or deals with the agents or officers of a municipal corporation, must at his peril take notice of the limits of their powers. Mayor, &c. vs. Eschbach, 18 Md., 276 ; Mayor, &c. vs. Reynolds, 20 Md., 1 ; Mayor, &c. vs. Kirkley, 29 Md., 85 ; Horn vs. Mayor, &c., 30 Md., 218 . We must therefore examine the laws and ordinances relating to this improvement, and determine the extent of the powers and authority thereby vested in these Commissioners.

After the great destruction of property in that vicinity occasioned by the flood of 1868, efforts were made to have the channel .of this stream flowing through the city, so changed, widened, straightened and improved, as to prevent the recurrence of similar disasters. A plan for this improvement was made by Mr. Tyson, which was adopted by the Mayor and City Council, and Ordinance No. 13, of 1870, approved January 31st of that year, was passed, appointing three named Commissioners to carry it into ²⁸⁴ effect. By Ordinance No. 12, approved on the same day, provision was made for the issue of bonds of the city, not exceeding $'2,500,000, the proceeds of which were to be used in the construction of this improvement and for no other purpose. It was also provided that this ordinance should be submitted to a vote of the people for their approval or rejection, after the General Assembly should have passed a law authorizing the issue of such bonds.

The Legislature, by the Act of 1870, ch. 113, approved March 23rd, 1870, authorized the Mayor and City Council to issue bonds not exceeding $2,500,000 for this purpose, provided Ordinance No. 12 above mentioned should be approved by the votes of a majority of the legal voters of the city. By another Act, approved on the same day, (Act of 1870, ch. 115,) the Mayor and City Council were authorized and empowered to make such improvements in connection with Jones’ Falls, as in their judgment are desirable, and for this purpose to change the course, lines, and boundaries of the stream in whole or in part, to lay out and construct streets, avenues, and wharves on the sides of and adjacent to the same, to widen and deepen the channel, to construct such sewers and drains as may be requisite, “and generally to do all such things, and exercise all such powers as in their judgment shall be necessary to be done and exercised, for the accomplishment of any plan or plans for the improvement of Jones’ Falls, which have been or may be adopted by them.” This law also gives them power to acquire property by condemnation, and ratifies all the provisions of Ordinance No. 13, above referred to, in the same manner, and to have the same effect as if that ordinance had been passed after the approval of this Act. The bond ordinance was subsequently approved by the popular vote, but nothing was done in prosecution of the work under Ordinance No. 13. In 1872 was passed Ordinance No. 51, approved April 24th, of that year, supplementary to Ordinance No. 13, of 1870, ²⁸⁵ and ’ the Commissioners appointed under this supplementary ordinance proceeded in the discharge of their duties, and it was while acting under this ordinance that they gave the notice and made the demands respecting the plaintiff’s property, which have resulted in the present suit.

Its provisions we shall examine more at length, presently. It is conceded that while it was originally estimated the entire cost of this improvement would not exceed $2,500,000, yet the valuation of property alone to he taken for the work, amounted to nearly that sum, and it was then estimated that the additional sum of $1,500,000 would he required to complete it. An ordinance approved February 12th, 1874, providing for the issuing of bonds for this additional sum was submitted to the people for approval, but was rejected, and then by an ordinance approved May 27th, 1874, the ordinance of 1872 was repealed, and the improvement thereby authorized was abandoned. Let us now examine this ordinance of 1872.

It consists of twenty-two sections, and a general review of its main provisions is essential to an understanding of the powers it conferred upon the Commissioners. It provides first for the appointment of three persons to be styled the “Board of Commissioners for the Improvement of Jones’ Falls,” fixes their salaries, prescribes their oath of office, gives them power to appoint a clerk, who shall keep a full and true record of their proceedings, also a chief engineer, who shall act under their supervision, and discharge such duties as shall be prescribed by this ordinance or by .the said Board, and by section seven it is enacted, “that the said Board of Commissioners shall have, and they are hereby vested with the general charge, superintendence and control of the execution of the plan for the improvement of Jones’ Falls hereinafter mentioned and prescribed, and shall have all the powers necessary or proper to carry out said plan and accomplish the said improvement.” The ²⁸⁶ Commissioners are then given full power and authority to make, award, and settle the terms-of all contracts necessary for the construction of the works contemplated hy this ordinance, and are authorized and directed to superintend the performance of the work hy the contractors, and to annul their contracts if they fail faithfully and properly to perform them. Before awarding these contracts they are required to advertise for proposals and to award the same to the lowest competent and responsible bidder, and to so apportion them, as that the completion of the entire work shall be accomplished as soon as may be consistent with the proper execution of the same. All expenses of the Board in the discharge of their duties, including their salaries, and all payments due on the contracts awarded by them, and all payments for land damages, are to be paid by the City Register upon the warrant of the Comptroller, who shall issue his warrant therefor upon the production to him of orders specifying the amounts respectively due, signed by the Board or a majority of them, and the Commissioners shall present to the Mayor and City Council quarterly reports giving detailed accounts of their proceedings and expenditures.

By section twelve it was made their duty without -delay, under the advice of their chief engineer, to establish and. define the lines of the improvement from Eager street to the Basin, to determine the heights and widths of the new walls, the depth of the excavations to be made, and to adopt detailed specifications of the entire work, provided the width of the new channel between certain described points shall be according to certain specified details, and provided further, that in establishing the lines, and obtaining the width, and adopting