Johnson v. City of Baltimore

• Decision Date: 07 January 1930
• Docket Number: 35.
• Citation: 148 A. 209,158 Md. 93
• Parties: JOHNSON ET UX. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

148 A. 209

158 Md. 93

JOHNSON ET UX. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 35.

Court of Appeals of Maryland

January 7, 1930

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Petition by the Mayor and City Council of Baltimore seeking to have property belonging to Robert Wilkinson Johnson and wife condemned for a site for a free public library. From a judgment of condemnation, the property owners appeal. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Edgar Allan Poe, of Baltimore, for appellants.

A Walter Kraus, City Sol., and Allen A. Davis, Asst. City Sol both of Baltimore, for appellee.

DIGGES J.

On January 21, 1929, the mayor and city council of Baltimore, a municipal corporation, filed its petition in the Baltimore city court against the appellants, seeking to have the property belonging to the appellants, known as No. 101 West Franklin street, in said city, condemned for a site for a free public library, under the provisions of article 33A of the Code. These proceedings were instituted pursuant to the authorization contained in Ordinance No. 559 of the mayor and city council, approved December 7, 1928. The petition describes the property and sets forth the authorization contained in the said ordinance, and alleges that the petitioner is unable to agree with the owners upon a price to be paid therefor, and that it is necessary that said lot of ground, with all improvements, rights, and appurtenances, and the interest of the owners therein, shall be acquired by condemnation. The prayer of the petition is that the court will have the lot of ground described, together with the improvements, rights, and appurtenances, as fully and particularly described in the petition, condemned, in fee simple, for the purposes set forth in the petition; that is to say, for a site for a free public library, in accordance with the requisites of the law in such cases made and provided, the procedure to be that prescribed by chapter 463 of the Acts of the General Assembly of Maryland passed at the session of 1914, now codified as article 33A.

To this petition the appellants (defendants below) demurred, setting forth various reasons why the demurrer should be sustained, among which are: That the petitioner has no power or authority to condemn the property of the defendants for the purpose of erecting thereon a free public library; that Ordinance No. 559, under which the petitioner is proceeding, is illegal and void, because in violation of section 7 of article 11 of the Constitution of Maryland, in that its necessary effect is to create an indebtedness of the mayor and city council of Baltimore without previous authorization therefor by an act of the General Assembly of Maryland and by an ordinance of the mayor and city council of Baltimore, submitted to and approved by the legal voters of said city; and further that no expenditure of public funds of the mayor and city council of Baltimore for a free public library is authorized; and that Ordinance No. 559 is illegal and void, because it is in violation of section 40 of article 3 of the Constitution of Maryland, in that there is no appropriation of public funds of the mayor and city council of Baltimore to secure the payment of compensation for the property attempted to be condemned.

The demurrer was overruled, and the appellants then filed an answer, in which it is alleged: (a) That the petitioner is not authorized by law to condemn land for a free public library; (b) that the petitioner is not authorized by its charter to condemn land for a free public library; (c) that the petitioner is not authorized by any act of the Legislature to condemn land for a free public library; that chapter 328 of the Acts of 1927 only authorizes the petitioner to create a loan and apply the proceeds thereof to the acquisition of land and the erection thereon of a free public library, and can only become effective upon the approval by the voters of Baltimore city of a valid ordinance for that purpose, as required by section 7 of article 11 of the Constitution of Maryland; that Ordinance No. 1053, in pursuance of said Act, approved April 13, 1927, delegates the final selection of a site and the adoption of plans for the proposed free public library to the trustees of the Enoch Pratt Free Library, a private corporation, and is invalid.

The answer further sets forth the provisions of Ordinance No. 1053, and denies that the petitioner desires to acquire the property mentioned for a site for a free public library under the control and management of the petitioner, in the sense the term "free public library" were used in chapter 328 of the Acts of 1927, or in which sense such term would have to be used should any power therefor, as alleged by the petitioner, but denied by the defendants, exist in the Baltimore city charter; but, on the contrary; the defendants aver that the petitioner desires and intends to acquire said property for the avowed use and benefit of the Enoch Pratt Free Library, a private corporation, to be controlled and managed thereby, in accordance with the act of incorporation, being chapter 181 of the Acts of 1882, or for the avowed purpose and object of leasing at a nominal rental the property so to be acquired to the Enoch Pratt Free Library, a private corporation, and to be controlled and managed thereby. The answer further avers that the petitioner is without any power to condemn the property mentioned in the petition for the aforesaid use, benefit, purpose, and object; that there is no act of the Legislature authorizing the credit of the petitioner to be given or loaned to or in aid of the Enoch Pratt Free Library, a private corporation, other than for its equipment, maintenance, or support, and no ordinance of the petitioner in pursuance thereof approved by the voters of Baltimore city as required by section 7 of article 11 of the Constitution of Maryland, and therefore the credit of the petitioner cannot be used for the purpose of condemning the property mentioned for the aforesaid use, benefit, purpose and object, and the proceedings are in violation of section 7 of article 11 of the state Constitution.

Subsequently the appellants filed a motion to quash the condemnation proceedings, relying upon practically the same grounds for sustaining the motion to quash as those set forth in the demurrer and answer. The motion to quash was overruled, and the following prayer offered by the defendants was rejected:

"The defendants pray the court to instruct the jury that the mayor and city council of Baltimore is without power to condemn the property of the defendants, sought to be condemned in this proceeding, because the purpose, object, and effect of said condemnation proceeding is to give or loan to or in aid of the Enoch Pratt Free Library of Baltimore City, a private corporation, the credit of the mayor and city council of Baltimore, without such credit being authorized by an act of the General Assembly of Maryland and by an ordinance of the mayor and city council of Baltimore, approved by the legal voters of the city of Baltimore."

The trial resulted in a judgment of condemnation and an award to the appellants of $75,000 for the property of the appellants so condemned. The appeal is from that judgment.

There are a number of exceptions taken on behalf of the appellants during the progress of the trial to the sustaining of objections by the city to questions propounded on behalf of the appellants. As we view the case presented by the record, the real and important question is: Has the mayor and city council of Baltimore the power and authority to condemn land for the site of a free public library? Section 7 of article 11 of the Constitution, under the subtitle "City of Baltimore," provides:

"From and after the adoption of this Constitution, no debt (except as hereinafter excepted), shall be created by the mayor and city council of Baltimore; nor shall the credit of the mayor and city council of Baltimore be given or loaned to, or in aid of any individual, association, or corporation; nor shall the mayor and city council of Baltimore have the power to involve the city of Baltimore in the construction of works of internal improvement, nor in granting any aid thereto, which shall involve the faith and credit of the city, nor make any appropriation therefor, unless such debt or credit be authorized by an act of the General Assembly of Maryland, and, by an ordinance of the mayor and city council of Baltimore, submitted to the legal voters of the city of Baltimore, at such time and place as may be fixed by said ordinance, and approved by a majority of the votes cast at such time and place."

This section of the Constitution required, before any debt shall be created, or the credit of the city be given or loaned, or the faith and credit of the city be granted, that such debt or credit be authorized by an act of the General Assembly of Maryland and by an ordinance of the mayor and city council submitting the same to the legal voters of the city at such time and place as may be fixed by the ordinance, and that such proposed loan be approved by a majority of the votes cast at such election. In other words, there are three conditions precedent before the city can create a debt or pledge its credit: First, there must be an enabling act passed by the General Assembly of Maryland, authorizing said loan; second, there must be an ordinance passed pursuant to the enabling act, submitting the proposition to the qualified voters of the city; and, third, at an election provided for by the ordinance, the proposed loan must be approved by a majority of the voters participating at such election.

Applying these tests to ...