Williams v. Mayor of Baltimore City

Burke, J., delivered the opinion of the Court. This case grows, out of a controversy between the Board of Park Commissioners, and the Board of Estimates of Baltimore City,—two of the boards of the municipal corporation,—respecting' the control and management of one of the public parks of the city. The plaintiffs constitute a majority of the Board of Park Commissioners,—four of the five members of that Board,—and were authorized to file the bill in this case by resolution of the Board. They also sue individually as residents and taxpayers of Baltimore City.

The bill is. filed against the Mayor and City Council of Baltimore and the Board of Estimates. In so far as it ¹⁴² .seeks any relief against the municipal corporation for the acts complained of, it is obvious that the bill can not be maintained for the simple reason that the corporation as such has done nothing’ to cause or bring about the situation complained of in the bill. The acts complained of were done by the Board of Estimates, and there is nothing to show that the corporation itself contributed to create the condition which gave rise to the suit. The bill and answer are quite full, but it is unnecessary to set out the respective contentions of the parties by quoting at any length from the pleadings, which suggest a number of interesting legal questions.

For the real questions which must control the case lie within a narrow limit and are, we think, free of difficulty. The controlling facts disclosed by the record may be briefly stated. Pursuant to an Act of Congress, approved by the President on May 26th, 1914, and an ordinance of the Mayor and City Council of Baltimore (Ho. 471), passed on June 17, 1914, the use of a tract of land, comprising about thirty-eight acres, situated ■on Locust Point in Baltimore City and known as Fort McHenry, was granted by the government of the Hnited States to the Mayor and 'City Council of Baltimore and accepted by the City as a public park. After its acceptance, the property was placed in the charge and custody of the Board of Park Commissioners.

A portion of the land of the Military reservation at Fort McHenry was reserved by the Hnited Slates Government by the Act of Congress referred to for an immigration station which the government was about to construct at large expense. On the land reserved by the government as a site for the new immigration station there was located a substantial frame building, worth approximately five thousand dollars, which had been used as a “Canteen Building” when Fort McHenry was used for military purposes. To make room for the building of the immigration ■station it was necessary to tear down or remove this building. Thd building was purchased by the Park Board from the Hational Government for the sum of fifty dollars in Septem ¹⁴³ her, 1914, to be used in connection with the park and paid for out of the park funds, but the title to and ownership of the building after its purchase were vested in the City.

After the building had been acquired by the City the •question arose as to the specific purpose for which it should he used. At the time of the acquisition of the building by the City, and for many years prior thereto, there were a number of boat- clubs located at Ferry Bar. The ground ■upon which these clubs was located had been acquired by ■the Western Maryland Railroad for use as terminal facilities, and the clubs were desirous of securing better and more permanent locations. The ground on the south side of Fort McHenry is admirably adapted for the location of boat ■clubs.

It rises rapidly from the water, and the sloping hillsides afford opportunity for a largo number of people to witness boating, rowing, and other water sports. It was ■accordingly proposed that the boat clubs be located at Fort McHenry. It was thought regattas and other aquatic sports would popularize the park and furnish entertainment to .great numbers of the people of Baltimore, and by attracting people from other States would advertise the City. This proposal was favorably received by the boat clubs and by the Board of Estimates, and was taken under consideration by the Board of Park Commissioners.

A committee was •appointed, of which Mr. Williams, the president of the Park Board, was a member, to arrange the details of an agreement to he entered into between the boat clubs and the City under which they might remove and locate at Fort McHenry. After numerous meetings of the committee the final draft of the agreement was prepared fixing the terms and conditions,—a number of which being suggested hv Mr. Williams,—upon which the boat- clubs might remove and locate at Fort McHenry. Mr. Williams was personally favorable to the removal and approved the terms of the proposed agreement, embodied in the final draft; but he was at all times careful to have it understood what he did was. not intended to bind the Board of Park Commissioners.. He testified: ¹⁴⁴ “My object in getting on that committee was, that my mind was not made up as to whether the boat club proposition was good or bad.

" * * I went on the committee, and I was very careful until, I think, I got to be a perfect bore on the subject, that any suggestion I made was not intended to bind the Board.” (Mr. Oolgan) : What Board are you referring to ? (Witness) : The Park Board. (Witness^—continuing) : My idea was, and I think the idea .of the committee was to get the best proposition from the boat clubs that could be gotten, so that when the discussion took place it would be on something’ that was substantial and concrete, rather than have just a mass-meeting of ten or fifteen gentlemen and nothing ready before us. Now, on the third of December—I think by December second, Mr. McOay who was on the committee— the committee was as I remember, Mr. McOay, myself and four representatives from the four boat clubs—sent me a report and I sent it back with suggestions and I told them that I concurred in it, but that I could not bind the Board.

Then around the last of January, 1915, the draft of the agreement was sent me, I distributed copies of it to the members of the Board and we had a number of meetings.” It was contemplated that the agreement should be signed by the boat clubs, the Mayor and City Council of Baltimore, by the hand of Mr. Preston, Mayor, and approved by the Board of Park Oommissioners and the Board of Estimates'. It was executed by the boat clubs, but not by the Mayor, nor was it approved by the Board of Park Commissioners or Board ■ of Estimates. The final draft of the agreement, which it was proposed should be signed by each of the above named parties, is here inserted: “This Agreement, Made this day of January, in the year nineteen hundred and fifteen, between the Mayor and City Council of Baltimore and the following Boat Clubs, all of which are incorporated, namely: Arundel Boat Club, Corinthian Yacht Club, Maryland Motor Boat Club, and Ariel Bowing Club: ¹⁴⁵ “Witnesseth, That whereas the said four Clubs have for a number of years past had their respective Club Houses located at Ferry Bar, in the City of Baltimore, and were occupying the ground under leases for short terms; and “Whereas the Mayor and City Council of Baltimore has recently secured from the United States of America the authority to use and improve Fort McHenry as a Public Park, with the riparian rights attached thereto, and the said Mayor and City Council, through its Ordinance of Estimates for the year 1915, has made appropriations for the improvement of Fort McHenry and the Water Front on the South side thereof, known as the ‘Approach to Spring Gardens,’ and it is contemplated that the City shall build a Breakwater extending from the point of Fort McHenry into the Middle Branch of the Patapsco River, and thus furnish, on the south side of Fort McHenry and west of said Breakwater, a very desirable and suitable place for the location of Boat Club Houses, and the anchorage of pleasure boats of various kinds, and for the purpose of adding to the attraction of said Park and making said Park a popular Water Front Park, and to encourage the use of said Park for aquatic sports, the said Mayor and City Council of Baltimore has invited the said four Clubs to rent the portion of the space thus to be provided by the improvements above mentioned, shown on attached drawing, and the said four Clubs, desiring to do all in their power to make said Public Park a success, and to show their appreciation of the efforts of said Mayor and City Council to give them a desirable location therein, have agreed to rent the spaces thus to be provided, and which have been allotted to each of them, and by reason of the large cost in removing their buildings and making the necessary repairs thereto occasioned by said removal, said Clubs, and each of them, have requested the Mayor and City Council of Baltimore to assist them financially, and ¹⁴⁶ the Mayor and City Council of Baltimore has agreed to. do so, upon the following terms and stipulations hereinafter set forth: “1. That the Arundel Boat Club’s building be moved to the location shown on the accompanying blue print, and fixed up, at an expense estimated not to exceed five thousand dollars ($5,000.00). “2.

That the old Canteen Building, now on Fort McHenry, be moved to the location shown on the accompanying blue print, and remodelled for the use of the Corinthian Yacht Club, at a cost estimated not to exceed seven thousand dollars ($7,000.00). “3. That the Maryland Motor Boat Club’s building be moved to the location shown on the accompanying blue print, and be put in proper order, at a cost estimated not to exceed five thousand dollars ($5,-000.00). “4. That the Ariel Rowing Club’s building be moved to the location shown on. the accompanying blue print, and fixed up, at an expense estimated not to exceed four thousand dollars ($4,000.00). “All of the above work—that is, moving the Canteen Building for the Corinthian Yacht Club, and moving the buildings of the Arundel Boat Club, Maryland Motor Boat Club and the Ariel Rowing Club, building proper foundations for all of said buildings, and fixing them up in good order for the use of the Clubs, and to provide suitable landings—to be done by contracts awarded by the Board of Awards, in the usual way of City contracts, after public advertisement, upon specifications prepared by the City Engineer and approved by the Board of Park Commissioners, said specifications to be so prepared as to call for bids separately: “1. Upon moving and placing on suitable foundations and wharves, ■ provided- by contractors, each of the buildings specified above: “2.

Upon making the proper alterations and repairs to each of said buildings. ¹⁴⁷ “3. Also upon all of said work, as a whole, with the proviso in the specifications giving to the Board of Awards the power to award the whole work or any portion or portions thereof, to any bidder, and also the right to reject any and all bids; the plans and specifications for said buildings, repairs and improvements to be prepared by C. R. Leland, Architect, heretofore selected by the Board of Awards, with the approval of the said Boat Clubs. “It is Further Understood and Agreed, that if, after said bids are all in, it should appear from said bids and other incidental expenses, including the architect’s commissions, that the total expenditure in connection with the moving and relocating of said Boat Club Houses would exceed twenty-five thousand dollars ($25,000.00) then the Mayor and City Council of Baltimore shall have the right to terminate this contract, and thereafter be under no obligation whatsoever in the matter. “In the event, however, that the City awards the contracts for said work, then the payment for all of said work will be made in the first instance by the Mayor and City Council of Baltimore out of the appropriation ' of fifty thousand dollars ($50,000.00) made to the Board of Park Commissioners for improvements at Fort McHenry in the Ordinance of Estimates for 1915. “Each of said Clubs, except the Corinthian Yacht Club, will pay to the Mayor and City Council of Baltimore the following annual amounts, payable in quarterly installments in each year, accounting, as to each Club, from the date when the building to be occupied by each Club, and the improvements thereof hereby contemplated, shall be completed, the same being calculated to cover rental for the spaces occupied, interest on the amounts advanced by the City and a sinking fund to pay for the advances thus made—that is to say: Each of said Clubs shall pay to the Mayor and City Council of .Baltimore 5% annually as inter ¹⁴⁸ est ándtd cover the'use "of the space occupied, and 7% annually' as a sinking fund to reimburse the City for its outlay, or a total of 12% annually, to be paid for ' twelve years by' each Club, in quarterly installments, accounting from' the respective dates when the respective Club buildings and improvements are completed, said 12% to be calculated upon the actual amount which may be expended by the Mayor and City Council of Baltimore, as above provided, in. moving and improving the buildings and providing landings, etc., for the'use óf said Clubs'respectively, as "hereinabove " próvided. ' “These provisions ¿s ‘ to payment are also to apply ’ to the Corinthian Yacht Club, with the exception that the Corinthian Yacht Club will pay 5% annually to cover interest and rental for the space ’ occupied and 3% annually for the sinking fund to reimburse the ' City for its advances, or a total of 8% annually, and will pay said 8% for a period of eighteen years, in quarterly installments. ' “And it is Further Herein Provided and Agreed, That' upon the removal of the buildings of the Arun- ' del Boat Club, Maryland Motor Boat Club, and the Ariel Rowing Club‘to their respective locations at Fort ■ McHenry, as designated upon the drawing hereunto annexed, the absolute title in and to said buildings (but not their contents) shall vest in the Mayor and "City Council of Baltimore and be and become the "property of'said Mayor and City Council of Balti- ' more, with the right of each of said Clubs to use and occupy same, in strict accordance with the terms hereof, as the tenants of the said Mayor and City Council of Baltimore, it being agreed that so long as said Clubs shall occupy the, said buildings as tenants, in pursuance hereof, the said Clubs will keep their respective buildings in good order and repair, but when, and as often as, the said Club Houses may need paint- " ing on the outside, the Mayor and City Council of ¹⁴⁹ Baltimore. will furnish the, material - and the Clubs will furnish,,the labor for doing said ¡painting. “It is Further Hereby Agreed, That, in addition to the payments hereinabove specified, each of said Clubs will pay the. Mayor and City Council of Baltimore, in the event of an increase in their respective memberships, the sum of one dollar ($1.00) per annum per member, for such increase, the increase to be , ascertained as follows: “On the first days of January and July, in every year, beginning with the year 1915, the Clubs will report their membership and will pay the said sum of one dollar ($1.00) per annum, for such increase in membership as may be represented by the difference between the present membership and the average which will be shown by adding the membership on January 1st and July 1st in each year and dividing it by 2; it being hereby agreed that the present membership of each of said Clubs is as follows: Arundel Boat Club........................250 Corinthian Yacht Club....................100 Maryland Motor Boat Club................150 Ariel Bowing Club........................250 “It being, however, understood and agreed that be- . fore this payment of one dollar ($1.00) per annum . per member attaches to the Corinthian Yacht Club it shall be permitted to have fifty (50) additional members—that is to say: That it will pay annually on the excess above 150 members;- and,'in like, manner, before this provision attaches to the Maryland Motor Boat Club it-shall'be permitted to'get fifty (50) additional members, and the payment hereinabove specified to apply, - as to that Club, only to the excess above , 200 members. “It is Further Hereby Understood and Agreed, That - each of said 'Clubs will indemnify and save the Mayor . and City Council of Baltimore and the Board of Park' Commissioners harmless from any and all claims for damages which may be caused by any act, negligence ¹⁵⁰ or default of any of said Clubs, or any of the members of said Clubs, in or about the Club Houses and landings herein referred to. “It is Further Hereby Understood and Agreed, That this entire contract is subject to the possibility of United States Government retaking possession of Fort McHenry and the grounds on which the Club Houses are hereby contemplated to be placed; in which event this contract will be terminated, and neither party will be liable to the other except to the date of such termination. “In the event that either or any of said Clubs shall fail to make the payments herein required to be made by_ each of them to the Mayor and City Council of Baltimore, the said Mayor and City Council of Baltimore, shall have the right to distrain upon any of the property of said Club so in default, and sell the same, or pursue any ordinary remedy for the recovery of the amount so due, or terminate the agreement and take possession of- the Club- building, and have the right to "use/ either- or all of said remedies at the option of the 'sáid 'Mayor and- City’ Council of Baltimore. “It •is‘> Further1 Understood and Agreed, That the Mayor and City Council of Baltimore shall have the right, either through regulations of the Park Board, approved by the Board of Estimates, or by Ordinance, to make all reasonable and proper regulations in reference to the use of said Club Buildings and the conduct-of the members of said Clubs, respectively, and to impose appropriate liquidated damages or penalties fob'the violations of such rules and regulations, and ,a'lsoi with the right, for repeated violations of said rules aiid regulations, to cancel the