Mayor of Baltimore v. Porter

Goldsborough, J., delivered the opinion of this court. For several years prior to the incidents which induced the controversy in this case, the city of Baltimore was blessed with a prosperity strikingly illustrated by its material expansion. The waste places within her jurisdiction were, day by day, disappearing under the advance of this expansion. Her highways were being extended, and were affording pninterrupted intercourse to her citizens from one extremity of the city to the other.

This state of prosperity begat a corresponding public feeling, from which, in 1852, arose the determination to lay out and establish an avenue one hundred feet wide on the confines of the city, to be denominated the North Avenue. In that year, certain real estate was condemned, to form the bed of this improvement, beiween Pennsylvania and York Avenues, under an ordinance of the corporate authorities, by which it. was declared that the opening and condemnation of North Avenue, as a public highway, would be a great public improvement and result advanlageously to the com munity Though the bed of the avenue had been condemned for several years as a public highway, it continued useless for that purpose for Want of authority to grade it. It became, therefore, necessary to obtain the passage of a law, under the provisions of which, it could be made practically useful as a great public convenience. And for this purpose the Act of 1856, ch. 164, was passed.

After the passage of that Act, a number of the proprietors of land lying upon the avenue, representing themselves to be “the owners of a majority of front feet,” made application to the city commissioner to have the same graded. ²⁹⁸ Upon this application, the city commissioner went on to have the work done, and assessed upon the property a tax to pay the cost and expense of the grading, making such assessment upon all the adjoining property equally, according to the number of front feet, in the same manner as m the ordinary case of a street lying wholly within the limits and jurisdiction* of the city, and without making any ascertainment of damage to the owners, or any of them. He then proceeded to place the tax list in the hands of the collector, who advertised the property of the appellee for sale, on account of its non-payment. An injunction was granted by the Circuit court, at the instance of the appellee, to prevent the sale, and this appeal was taken from the order of the 2nd of June 1860, continuing the injunction. A great deal of evidence was taken in the case upon the disputed question, whether the application, for the grading of the avenue, had been signed by persons owning a majority of the feet fronting thereon, as required by law, and also for the purpose of showing the manner in which the work of grading had been done, and the consequent damage and injury alleged to have been suffered by many of the adjoining proprietors.

But, in disposing of the present appeal, it is quite unnecessary to decide upon those questions, or to pass upon the various exceptions to the evidence presented in the record. The affirmance of the action of the Circuit court, may be properly rested on the broad ground, that the city commissioner had no legal power or authority to cause North Avenue to be graded, and that all his proceedings in the premises, were coram non judice and void. This conclusion is based on the construction of the Act of 1856, ch. 164. By reference to the pre-existing laws and ordinances, it will be seen, that the two systems for opening and condemning streets, and for grading and paving them, are essentially different from each other; they are provided for by different laws and ordinances, executed by different officers, and governed, by different rules and regulations. ²⁹⁹ This will plainly appear by reference to the Revised Ordinances of 1850, Nos. 15 and IT, and the Acts of Assembly under which they were respectively adopted.

In passing the Act of 1856, ch. 164, the Legislature seems to have blended the two systems, and hence, some difficulty has arisen in giving such construction to that Act as will make all its provisions harmonize with each other. In its title it is declared to be supplementary to the Act of 1838, ch. 226, which relates to opening and condemning streets. In its first section it contains, like the Act of 1838, provisions for ascertaining the damages as well as the benefits, which will be caused to the owners of adjoining lands by the grading, and requires, as a preliminary to any proceeding under the law, that the Mayor and City Council shall determine the proposed work to be consistent with the public good. And the fourth section provides that an appeal shall be granted to the owners of property, from the assessments of benefit and damage arising from the grading or paving of the avenue.

In these respects the law is very similar, in its provisions, to the Act of 1838, and wholly unlike the existing laws and ordinances relating to the grading and paving of streets in the city of Baltimore. In the action that was taken by the city commissioner, those piovisions of the law were wholly disregarded, and the record shows that he proceeded in the same manner as is contemplated by ordinance No. 15 of 1850, and as in the ordinary case of a street lying in the city, with the property adjoining thereto, on both sides, within the city jurisdiction. Inasmuch as the property adjoining North Avenue, on one side, lies in the county of Baltimore, it. was not