Mayor of Frostburg v. Wineland

Briscoe, J., delivered the opinion of the Court. On the 5th day of November, 1902, the appellee filed a bill in the Circuit Court for Allegany County, in equity, against the appellants, for an injunction to restrain the Mayor and Councilmen of Frostburg from cutting down and removing two shade trees at the curb, between the sidewalk and ²⁴² the street, and in front of the appellee’s property and within the corporate limits. ' The bill in substance charges that the destruction of the trees is wholly useless and without authority, and that it is .not necessary to the proper grading, paving, curbing or sewering of the street. It is further alleged that the destruction. of the trees, on account of their intrinsic value, their beauty and comfort as shade trees, and their enhancement of .the value of said property, will be an irreparable loss which could not be compensated for in any way by a suit for damages or by any proceeding at law. That said street, although a main business street of the town, is still not entirely devoted to business houses, but is also a most important and fashionable residence street of the town and thickly occupied by persons living upon the same from end to end; that said shade trees, so far from being a nuisance are an ornament and benefit to said street and the people thereon, and their destruction would be a great harm to the citizens of the town, apart from the special harm that would be done to the plaintiff The bill admits the right of the Mayor and Council to improve the streets, to repave or to change the width of the sidewalks or the curbing but charges that the plan adopted, in this case, is a wholly unnecessary, unreasonable, unjust and arbitrary plan, and will result in the useless destruction of the plaintiff’s property.

A preliminary injunction was issued on the bill with leave to dissolve after five days’ notice to the plaintiffs. On the i ith of November, 1902, the defendant filed an answer to the bill, denying that the trees are not an obstruction to the street, but charges that they are a great nuisance and a serious obstruction to the public use of the street of the town. It admits the passing of an ordinance declaring the two trees to be a nuisance and an obstruction to the paving and curbing of the street and instructing the Street Commissioners to remove them, but states the order was passed for the good of the public, and with a view to a proper discharge of ²⁴³ their duty as the officers of the town in having all serious obstructions that are likely to cause damage removed from the street. The answer further denies that the corporation has acted in an unreasonable and arbitrary manner, but insists that they have complete control over the streets and alleys by and under their charter, with full power to remove all nuisances and obstructions and to regrade repave and improve the streets of the town in any manner that in their judgment will be to the best interest of the town and that their acts as a municipal corporation are not reviewable in this Court.

The case was heard on bill, answer and proof, and from a decree passed on the 6th day of August, 1903, continuing and making perpetual the preliminary injunction, with certain modifications, this appeal has been taken. The law has been settled, in this State, since the case ot Alberger v. Mayor, &c., of Balto., 64 Md. 7 , that where the Legislature confers the power on a municipality, in general terms, to provide by ordinance for paving or repaving the streets, the discretion exercised by the City Council in regard to the propriety or necessity of the improvement provided by the ordinance, cannot be controlled by the Courts, except where the power is exceeded or fraud is charged, and shown to exist, or where there has been a manifest invasion of private rights. Judge Alvey, in delivering the opinion of the Court, cites 1 Dillon on Municipal Corporations (3rd ed.), sec. 94, where it is said, that where the law or charter confers upon the City Council or local Legislature, power to determine upon the expediency or necessity of measures relating to the local government, their judgment upon matters thus committed to them while acting within the scope of their authority, cannot be controlled by the Courts. In such case the decision of the proper corporate officer is, in the absence of fraud, final and conclusive, unless they transcend their powers.

The first question, then, in the case resolves itself to this, was the summary proceeding of the appellants in declaring the two trees in front of the appellee’s property to be a nui ²⁴⁴ sanee and an obstruction to the paving and curbing of the street, and directing them to be removed and destroyed, so far final as not to be reviewable by the Courts. This question we think was in effect settled by this Court in the recent cases of New Windsor v. Stocksdale, 95 Md. 215 , and King v. Hamill, 97 Md. 103 . In the latter case it is said, that equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal corporation, restraining an act, unless the act is shown to be a nuisance per se. And in the case of Yates v. Milwaukee, 10 Wall. 497 , the Supreme Court, held,