Mayor of Baltimore v. Radecke

Miller, J. delivered the opinion of the Court. The appellee is tenant and occupant of certain premises situated on McClellan’s alley, in a central business locality in the city of Baltimore, where he and his father before him had carried on the business of carpentering and box-making since the year 1853. In 1866 he applied to the-Mayor and City Council for permission, which was granted, to erect and use on these premises and in the carrying on of his business, a steam engine. The resolution granting, this permit contained a provision, in conformity to a City Ordinance on the subject, that the engine was “to be removed after six months’ notice to that effect from the Mayor.” Upon the passage of this resolution he erected and has ever since used a steam engine in his said business, but some time in the year 1873, the Mayor gave him notice-to remove it which he refused to do.

The city, then, after the expiration of the six months instituted a suit before a justice of the peace, for the penalty for non-removal provided in the Ordinance, and the appellee thereupon filed the bill in this case for an injunction to restrain the prosecution of that action and others which the city threatened to bring from day to day in order to enforce the removal of this engine. The Court below on final hearing orderedi the injunction to be issued as prayed and made it per-jl petual. From this order the Mayor and City Council have' appealed. ²²⁷ The city legislation on the subject, in force at the time this permit was granted to the appellee, was first, the 56th section of Ordinance No. 33, approved June 5th, 1858, by which it was provided under prescribed penalties that no person should “erect, build or have put up any steam saw mill or machinery, or any steam engine for any purpose whatever, or planing machine, or machinery within the limits of the city, without first obtaining the sanction of the Mayor and City Council,” and secondly, part of the 5th section of Ordinance No. 78, approved June 9th, 1864, which provided that “ all permits granted for steam boilers and steam engines and boilers may be revoked, and the same shall be removed, after six months’ notice from the Mayor, and anyone receiving such notice, who shall refuse or neglect to conform to the requirements of the same shall pay a fine not exceeding one hundred dollars, and a further fine not exceeding fifty dollars, for every day such refusal or neglect shall continue after the first.” It is this last provision which the present case requires us more especially to consider, not only because the bill assails its legality and validity, but because the injunction complained of restrains the prosecution of suits for the penalties which it imposes for non-compliance with the notice and order to remove given by the Mayor. It is obvious that those who enacted this provision did not suppose it was an exercise of the power “to prevent and remove nuisances,” for it would be a curious anomaly in municipal legislation on that subject, as well as a novel mode of removing a nuisance, to pass an Ordinance allowing a nuisance to remain for six 'months after the Mayor had determined it to be such, before any steps could be taken to enforce its removal.

But further than this, a stationary steam engine is not in itself a nuisance even if erected and used in the midst of a populous city, unless it interferes with the safety or convenience of the public in the use of the streets. There is no proof in this record of any such interference, or even ²²⁸ that this was the ground of the Mayor’s action in giving the notice. Nor was this engine used in connection with any trade or occupation which the law pronounces offensive or noxious. The business of carpentering and box-making is neither offensive to the senses nor deleterious to health.

In fact the only complaints made against the engine are its liability in common with all other steam boilers, to explode, and that it is used in a business in which combustible materials are necessarily brought in dangerous proximity to the fire of its boiler, and it therefore subjects buildings and merchandise in that vicinity to increased danger from fire, raises the premiums of insurance thereon, and excites the fears of neighboring owners for the safety and security of their property, but neither one nor all of these circumstances combined, make it a nuisance. Rhodes vs. Dunbar, 57 Penn. State Rep., 274. But the Legislature has granted ample power of legislation upon the subject of the erection and use of steam engines within the city limits, to the Mayor and City Council of Baltimore, independent of the power “to prevent and remove nuisances.” They are clothed with the powerdo pass' Ordinances “for the prevention and extinguishment of fires,” for “securing persons and property from danger or destruction, and for promoting the great interests and insuring the good government of the city,” and “ to pass all Ordinances necessary to give effect and operation to all the powers vested in the corporation of the city.” It has been well said in reference to such general grants of power that as to the degree of necessity for municipal legislation oh • the subjects thus committed to their charge, the Mayor and City Council are the exclusive judges, while the selection of the means and manner (contributory to the end) of exercising the powers which they may deem requisite to the accomplishment of the objects of which they are made the guardians, is committed to their sound discretion.

Harrison vs. Mayor, &c., 1 Gill, ²²⁹ 264 . This discretion is very broad, but it is not absolutely and in all cases beyond judicial control. Modern decisions in other States have in some instances extended the control of the Courts over Municipal Ordinances upon the ground of their unreasonableness, further perhaps than the adjudications in this State would justify us in going. The cases on this subject and the conclusions to be drawn from them are well stated by Judge Dillon in his admirable work on Municipal Corporations, in sections 253 to 260.

They will also be found collected in Wood on Nuisances, 774, note 1. While we may not be willing to adopt and follow many of these cases, and while we hold that this power of control by the Courts is one to be most cautiously exercised, we are yet of opinion there may be a case in