State ex rel. McClellan v. Graves

Bowie, C. J., delivered the opinion of this Court: The Mayor and City Council of Baltimore, by virtue of authority vested in them by an Act of the General Assembly, passed at December Session 1838, entitled, “An Act to vest certain powers in the Corporation of Baltimore, in relation to streets,” on the 21st of October 1858, passed an ordinance to widen Holliday street, between Baltimore and Fayette streets, and to open a street, in continuation of Holliday street, to Exchange Place, and to change the name of Commerce street to Holliday street. The" Commissioners for opening streets were required to widen Holliday street from Baltimore to Fayette street, to conform to a new plat then filed in the Register’s office, prepared by the City Surveyor, designated as the plat of the proposed opening and widening. They were also required to condemn and open a street, in continuation of Holliday street, from the south side of Baltimore street to Exchange Place, to conform to said plat, and to proceed in all respects, in widening and in condemnation and opening of the street, in continuation of Holliday street, in accordance with the provisions of an ordinance entitled, “An ordinance to provide for exercising certain powers vested in the corporation, in relation to streets, approved April 30, 1850.” The Register and Collector of the city, were required to perform such duties in relation to streets, as are required of them by the provisions of the ordinance. The Commissioners, in pursuance ol this ordinance, advertised for sale at public auction, on the 31st January 1859, on the premises, all the materials in the houses lying and being in the bed of Holliday street, as contemplated to be ³⁶⁷ opened, and also portions of lots; tbe said houses and lots being referred to as numbered on the condemnation plat.

The advertisement concludes as follows: “The purchaser or purchasers will be required to give bond in double the amount of purchase money, that the said purchase money will be paid on the day the said Commissioners are prepared to give possession of said property and materials, and that said purchaser or purchasers respectively will remove within sixty days thereafter all such materials so sold, and all rubbish occasioned thereby.” At this sale the relator, Catharine McClellan, purchased part of a lot No. Ill, for $2,050, for which she gave her bond to the Mayor and City Council, conditioned to pay “on the day that said Commissioners are prepared to deliver to her all that piece or parcel of ground designated on the condemnation plat of Holliday street by the letter E.” The relator also purchased materials in house No. 97, for which she gave her bond, conditioned as above. The Commissioners proceeded to make their assessment of damages and benefits, which was returned to the Register of the city; and on the Register’s proceeding with said return and report of Commissioners, as required by law, appeals were entered to the Criminal Court of Baltimore, by persons assessed for damages and benefits, and the return and report were transmitted to said Court for adjudication; where, by inquisition of a jury, they were reviewed and considered, and on the 11th of May 1860, finally confirmed. On the 6th of October 1860, the assessment of the jury and judgment of the Court wore transmitted to the Register of the city for his action, Among other assessments for benefits, the lot purchased by the relator was assessed $345.55, of which she had the following notice: ³⁶⁸ “Folio—, CITY TAXES-1860. Wm.

T. Valiant, City Collector. Catharine M. McClellan, To the Mayor and City Council of Baltimore, Dr. To benefits assessed on lot No. Ill, opening Holliday street, . - - - - - - - $345.55 October 8 ill, 1860. Received payment, GEO. M. FORD. fSÜ“Tf this bill be not paid on or before the 8th day of November next, an additional charge will be incurred for advertising notice1 to owners; and if it be not paid on or before the 8th day of April 1861, next, the above described property will be advertised and. sold, in compliance with existing ordinances.

No.— Baltimore, October 8th, 1860. Bank oe Commerce, pay to the order of W. T. Valiant, - (Collector,) three hundred and forty-five dollars. ($345.55.) ■ WM. W. MoCLELLAN.

(Endorsed.) WM. THOS. VALIANT, Collector, Per Robert C. Barnes, Cashier.” On the 1st of April 1861, an ordinance to repeal the ordinance of the 21st October 1858, to open Holliday street, was introduced in the first branch of the City Council, and finally passed and approved on the 15th April 1861. It will thus appear, from a comparison of dates, that about thirty months elapsed between the inauguration of, and the final abandonment of the projected improvement of Holliday street.

During all which time the Commissioners were not prepared to deliver possession of the lot or houses purchased bjr the relator. And before the period arrived when property assessed for benefits would be liable to sale for default of payment, viz., 8th of April 1861, the ■repealing ordinance was introduced in the lower branch of the City Council, and finally passed and approved on the 15th of April 1861. ³⁶⁹ The act of opening, widening- and closing streets, is an exercise of the right of eminent domain, delegated by the Legislature of the State to the city, as to other corporations, to be used for purposes of public good. To subordinate it to any private end, would be a perversion of the highest prerogative known to constitutional government. The inodes in which this power is exerted, vary according to circumstances.

Sometimes it is initiated by summoning a jury upon warrant, in the nature of an inquest ad quod, damnum; at others, boards of assessors are appointed to appraise dues and benefits, with the right of appeal to a court of record, and of review by a jury. Yet all are subject to the constitutional inhibition, “that the' Legislature shall enact no law authorizing private property to be taken for public use without just compensation (as agreed upon between the parties, or awarded by a jury)? being first paid or tendered to the party entitled to such compensation.” The constitutionality of the Act of 1838, ch. 226, and of the ordinance of the city of 1850, No. 17, entitled, “An ordinance to provide for exercising certain powers vested in this corporation, in relation to streets,” has been affirmed by this Court, in the case of Stewart vs. Mayor & City Council, 7 Md. Rep., 500 ; Alexander & Wilson vs. Same, 5 Gill, 383 , and in other cases. Not only the assessment by commissioners, with the right of appeal to the Criminal Court of Baltimore, but the assessment of benefit dues on the proprietors benefited, is established as a constitutional mode of providing compensation to owners of land taken for public use. The whole system, in fine, has the sanction of the highest judicial authority of the State.

Stewart vs. Mayor & City Council, 7 Md. Rep., 514. The Commissioners for opening and widening streets, having a special public duty and jurisdiction assigned them, to be executed in a prescribed form, ³⁷⁰ their proceedings are of a legal character, and must be regarded as subject to all the incidents of proceedings, in the nature of a writ or inquisition “ad quod damnum/’ being but means to the same end. The dedication of private property to public use, is not complete until the proprietor is paid or tendered the value of his property, as ascertained by the inquest or assessment. No preliminary stejo jorior to actual payment oí tender, so fixes the corporation as to prevent an abandonment of the condemnation or of the enterprize.

Graff vs. Mayor & City Council, 10 Md. Rep., 551 . Balt. &, Sus. R. R. Co. vs. Nesbit, 10 Howard, 395 . Persons dealing with Commissioners for property or materials partially appropriated to the public use, deal with them as public officers, acting under the municipal councils, which have the power and the right to abandon any projected improvement when it becomes obvious it will not promote the public good.

The purchase money for the property and materials lying in the bed of the projected condemnation, and sold to the relator, was to be paid on the day the Commissioners were prepared-to give possession. They could not be prepared until the proprietors were paid, or the damages tendered. No title vested in the Mayor and City Council, until' such payment or tender. By the terms of the contract, as evidenced by the advertisement, the purchasers were notified of the contingent character of the transaction, and bought an inchoate interest.

The payment of the benefit dues assessed on the lot bought by the relator, did not in any way affect the title, but was only a part compliance with the terms of sale as between the Commissioners and the relator. The collection of any part or the whole of