Boehm v. City of Baltimore

• Decision Date: 07 February 1884
• Citation: 61 Md. 259
• Parties: HERMAN BOEHM and Charles E. Loeber, Trading as John G. Vogt & Co. v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

61 Md. 259

HERMAN BOEHM and Charles E. Loeber, Trading as John G. Vogt & Co. v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

February 7, 1884

Appeal from the Baltimore City Court.

The case is stated in the opinion of the court.

The cause was argued before Alvey, C.J., Miller, Irving, and Bryan, JJ.

Richard Hamilton, for the appellants.

John Prentiss Poe, City Counsellor, for the appellee.

Miller J., delivered the opinion of the court.

Under the power "to pass ordinances to preserve the health of the city, to prevent and remove nuisances, and to prevent the introduction of contagious diseases," the Mayor and City Council of Baltimore, enacted, among others, two ordinances Nos. 75 and 76, relating to "Privies." City Code of 1879, p. 407. By the first of these ordinances it is provided that no person shall remove the contents of any privy, well or sink, within the limits of the city, without having first obtained a license so to do, and every person who may obtain such license "shall be considered as subject to the orders of the Board of Health in all matters relating to the opening and cleaning of privies or vaults, time and manner of removal, and the presentation of statistics connected with the cleaning of privies, as also the place or places to which night soil may be removed, and for any refusal or neglect to obey the orders of the Board of Health as herein provided, it shall be the duty of the Comptroller, upon the written request of the Commissioner of Health, to revoke the license of the person or persons so refusing or neglecting to obey." By the second it is enacted, that every person desiring such license shall make a written application therefor, to the Comptroller, who, after conference with the Board of Health, and on being satisfied with the character of the applicant, the security and tightness of his carts, that he is the owner of such as are specified in his application, and that he is not in collusion or combination with others to defraud the city, may grant him a license for one year, and renew the same from time to time, upon his paying for such license, and each renewal of the same, the sum of $2.50 for each and every cart; and every person so licensed shall give bond to the city in the penalty of $500, conditioned for the faithful performance of all the duties enjoined by this ordinance, "and the Comptroller upon complaint of the Health Commissioner may revoke or suspend any such license."

The suit in the present case was brought against the Mayor and City Council of Baltimore, by the appellants, who allege in their declaration that they were engaged in removing night soil from sinks attached to dwelling houses in the city under a regular license issued by the defendant; that they had invested a large capital in this business and were accustomed to earn large profits therefrom, and that the defendant without just or legal cause suspended and revoked their license, whereby they have been prevented from carrying on their said business, and in consequence thereof have suffered great loss and damage. The defendant pleaded non cul. upon which issue was joined; and then, by leave of court, filed an additional plea in which they set out the ordinances above stated, and aver that the license obtained by the plaintiffs from the defendant was issued under, and in pursuance of, and subject to, the provisions of said ordinances, and...