Dyer v. City of Baltimore

• Citation: 140 F. 880
• Decision Date: 26 June 1905
• Docket Number: 31.
• Parties: DYER et al. v. MAYOR, ETC., OF CITY OF BALTIMORE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

140 F. 880

DYER et al. v. MAYOR, ETC., OF CITY OF BALTIMORE et al.

No. 31.

United States Circuit Court, D. Maryland.

June 26, 1905

Arthur W. Machen and Arthur W. Machen, Jr., for complainants.

W Cabell Bruce and Edgar Allen Poe, for defendants.

MORRIS District Judge.

Mrs Dyer is the owner of property within the burnt district proposed to be taken by the city of Baltimore for the additions and extensions to be made to the public wharves and docks and to the basin and harbor of Baltimore, under and by virtue of the act of the Legislature of 1904, approved March 11, 1904 (Laws 1904, p. 141, c. 87), known as the 'Burnt District Act.' This is a bill of complaint filed by Mrs Dyer and her husband, who are citizens of New York, against the mayor and city council of Baltimore, E. Clay Timanus mayor of the city, and against the members of the burnt district commission of Baltimore City, asking an injunction to restrain the defendants from proceeding to condemn Mrs. Dyer's property, and from filling up the private docks appurtenant thereto, and from taking possession of said property under color of any condemnation proceedings.

The grounds upon which an injunction is prayed are: First. That the scheme of new wharves and docks provided for by City Ordinance No. 149, and the map accompanying it, are upon its face beyond the powers of the burnt district commission granted to it by the act of 1904 (Laws 1904, p. 141, c. 87), because the proposed wharves and docks are not either additions or extensions to the old wharves and docks. Second. That the city is contemplating a fraud upon the burnt district act, inasmuch as the act authorizes additions and extensions to public wharves and docks, while the city, under color of the power so conferred, is really intending to construct wharves which will not be public wharves, but will be leased to private individuals and corporations for their exclusive use, and the attempt to condemn is really for a private and not a public use, in violation of the Constitution of the United States and of Maryland. Third. That the machinery of condemnation provided in the act of 1904 (Laws 1904, p. 141, c. 87) does not afford the landowner due process of law, because the burnt district commission, which is directed to value the property taken, is an agent of the city and not an impartial tribunal; and, further that the notices provided by the act are not reasonable, in that they do not give sufficient time to enable the landowner to avail of the right of appeal to a jury; and, further, that in case of an appeal and jury trial the costs are to be in the discretion of the trial court. The city of Baltimore has demurred to the bill of complaint, and it is upon the sufficiency of the bill that the court has now to pass.

The act of 1904 (Laws 1904, p. 141, c. 87) is entitled 'An act to create a commission on the burnt district of Baltimore City, to define its duties and powers; to regulate its methods of procedure; to define the extent of said district; to provide for opening, extending, widening, straightening and closing streets, lanes and alleys; for establishing public squares and market places, building lines and the width of sidewalks in said district; for adding to, extending and partly filling the harbor and basin of Baltimore City, and for establishing public wharves and docks; and to provide for appropriating a portion of the general sinking fund of Baltimore City and other money for the purposes of this act. ' By a subsequent act of the same Legislature (Laws 1904, p. 767, c. 444), it was provided that, for the purpose of carrying into execution the plan of the improvements to be adopted under the foregoing act, there should be submitted to the voters of Baltimore an ordinance authorizing a loan of $6,000,000. The above-mentioned act of 1904 (Laws 1904, p. 141, c. 87) authorized the mayor of Baltimore to appoint four capable and upright citizens, who, with the mayor, ex officio, should constitute 'the Burnt District Commission,' but that no municipal officer of the city, whether holding a paid or unpaid place under the corporation, should be eligible, and that, if in any particular case any commissioner should be interested, the mayor should make a temporary appointment to act in his place. The powers and duties of the commission are enumerated in sections 2 and 3 as follows:

'Sec. 2. And be it enacted that said commission shall have the following powers and be charged with the following duties: (1) To lay out, open, extend, widen, straighten or close any street, lane or alley, or any part therefor in said burnt district. (2) To establish and fix the building line and the width of the sidewalks of any street, lane or alley now existing or to be laid out, opened, extended, widened or straightened in said burnt district. (3) To open public squares and market spaces in said burnt district, and to lay out additions and extensions to be made to the public wharves and docks of Baltimore City and to be made to the basin or harbor of the city of Baltimore, and to acquire in the name of the mayor and city council of Baltimore the land and property within said burnt district which may be requisite to make such additions and extensions and to define the extent to which said harbor or basin is to be filled in in said burnt district. And said commission shall have all powers necessary and proper to exercise said powers.

'Sec. 3. And be it enacted, that in executing the powers conferred on said commission by section 2 of this act and in making the changes, additions and improvements set out in any report or reports and map or maps approved as provided in this act, the said commission shall have such powers in addition to those herein granted as may be conferred upon it by any lawful ordinance or ordinances of the mayor and city council of Baltimore which ordinance or ordinances the mayor and city council is hereby fully authorized to adopt; provided no such ordinance or ordinances shall deprive said commission of any powers conferred on it by this act.'

By section 30 the boundaries of the burnt district are defined, including within its limits all of the wharves, docks, harbor, and basin west of the east side of Jones Falls, and comprising within its area the property of the complainant. The act by other sections provides how the commission shall proceed. For the purposes of the present case, and now reciting only the proceedings which have reference to the wharves and docks and harbor, it is sufficient to state that the act directs that the commission shall prepare maps of the burnt district and lay down thereon '(4) the additions and extensions which it proposes to make to the public wharves and docks and to the basin or harbor of the city of Baltimore within the territory covered by said map or maps, or any one or more of said changes; additions or improvements. ' The commission is directed to make a detailed report, accompanied by said map or maps, to the board of estimates and board of public improvements, which as a joint body may approve or disapprove and suggest changes and modifications thereof; and the plans and reports and maps, when approved, are to be submitted to the city council, and, when approved by an ordinance or resolution of the mayor and city council, the commission shall immediately proceed '(4) to provide for such additions or extensions to the basin or harbor of the city of Baltimore and to the public wharves and docks as all of said changes, addition' and improvements are shown on or by said report or reports or said map or maps which have been so approved by ordinance or resolution of the mayor and city council of Baltimore, and for which appropriations have been made as aforesaid, and said commission shall promptly lay down or locate all such changes, additions or improvements. And the said commission, in order to accomplish the work, shall promptly proceed to acquire in the name of the mayor and city council of Baltimore and by the methods in this act provided, such lands, interests, rights, franchises, privileges or easements as may be requisite * * * to make such additions and extensions to the public wharves and docks and to the harbor of Baltimore.'

'Sec. 5. And be it enacted that the mayor and city council of Baltimore, acting by and through the agency of said burnt district commission, may acquire by gift, purchase, lease, whatever the duration of the lease, or by other methods of acquisition, or by condemnation, any private property, rights or interests, franchises, privileges, or easements that may be required * * * to make any additions to the basin or harbor or to the public wharves or docks, as shown by said report or additional or amended report and map or maps accompanying or which may be required in the execution of the powers and the performance of the duties vested or imposed on said commission by this act.'

By section 7 it is enacted that, when resort is had to condemnation 'in making any additions or extensions to the basin or harbor or public wharves and docks,' the proceedings may be such as may be provided for the very purpose by lawful ordinance or ordinances of said mayor and city council which it is hereby authorized to adopt 'provided that provision...