Bouis v. City of Baltimore

• Decision Date: 06 April 1921
• Docket Number: 37.
• Citation: 113 A. 852,138 Md. 284
• Parties: BOUIS v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

113 A. 852

138 Md. 284

BOUIS v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 37.

Court of Appeals of Maryland

April 6, 1921

Appeal from Circuit Court of Baltimore City; Robert F. Stanton Judge.

Suit by Clarence G. Bouis against the Mayor and City Council of Baltimore. From decree dismissing the bill, complainant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, ADKINS, and OFFUTT, JJ.

Arthur W. Machen, Jr., of Baltimore (Hershey, Machen, Donaldson & Williams, of Baltimore, on the brief), for appellant.

Frank Driscoll, Asst. City Sol., of Baltimore (Roland R. Marchant City Sol., of Baltimore, on the brief), for appellee.

BOYD C.J.

This is an appeal from a decree of the circuit court of Baltimore city, sustaining a demurrer to a bill of complaint filed on the 6th day of January, 1920, to the appellant against the appellee, and dismissing said bill of complaint. Amongst other relief asked for in the bill was an injunction, which was directed to be issued the same day the bill was filed. Inasmuch as there were a number of exhibits which were not filed before the injunction was issued, there was error in directing it to be issued, and as no other relief could have been granted under the bill in the absence of some of the exhibits, the demurrer would necessarily have been sustained. But on the 15th of November, 1920, a petition was filed asking leave to file copies of certain proceedings of the commissioners for opening streets, plats, and ordinances, which were involved in the case, and the same day an order was passed, granting leave to file the exhibits referred to as part of the bill of complaint without dissolving the injunction theretofore issued and providing that when filed they might stand and be treated as part of the bill. They were filed the same day, and, without meaning to hold that filing them at that time was sufficient to avoid the effect of the demurrer previously filed, or that the court could continue the injunction, which was issued before they were filed, we will pass upon the main questions which we understand were intended to be raised by the demurrer.

Three ordinances were passed by the appellee in reference to what is called Gwynn's Falls Parkway, which is intended to connect Gwnn's Falls Park with Druid Hill Park. Those ordinances are No. 678, approved April 25, 1911, and No. 169 and No. 170, approved July 14, 1916. The titles of them are as follows:

No. 678.

"An ordinance to condemn and open Gwynn's Falls Parkway, a boulevard one hundred and twenty feet wide, from the intersection formed by the southwesternmost side of Liberty Heights avenue (formerly Old Liberty road) and the southwesternmost side of Reistertown turnpike road to the outline of the parcel of land conveyed to the mayor and city council of Baltimore by John B. Roberts, etc., by deed dated October 21, 1907, and recorded among the land records of Baltimore city in Liber R. O. No. 2378, folio 354, etc., in accordance with a plat thereof filed in the office of the commissioners for opening streets on the 17th day of March, 1910, and now on file in said office."

No. 169.

"An ordinance to condemn and close several portions of Gwynn's Falls Parkway, as now in process of opening, between the Western Maryland Railroad and Liberty Heights avenue, and between Allendale street and Clifton avenue, in accordance with plats thereof filed in the office of the commissioners for opening streets on the 12th day of February, 1916, and now on file in said office."

No. 170.

"An ordinance to condemn, open and relocate Gwynn's Falls Parkway, between the Western Maryland Railroad and Liberty Heights avenue and between Allendale street and Clifton avenue, in accordance with plats thereof filed in the office of the commissioners for opening streets, on the 12th day of February, 1916, and now on file in said office."

The plaintiff owned the leasehold interest in a rectangular lot of ground at the northwest corner of Chelsea street and Beech avenue, fronting 60 feet on Chelsea street with a depth of about 125 feet on Beech avenue, subject to a ground rent of $150 per annum, and also a lot immediately adjoining it on the north, of the same frontage and depth. The former is improved by a frame dwelling, and the other lot is vacant. The theory of the plaintiff is that the ordinances in question are void, and therefore the fact that he did not take an appeal from the decision of the commissioners for opening streets does not prevent him from asking the aid of a court of equity. If it be true that the defects relied on were not mere irregularities, but made the ordinances void, there can be no question about his right to go into equity. Ritchie on Mun. Con. § 194, and cases cited. We will therefore determine whether they were void.

1. It is contended that Ordinance No. 678 is void because the title does not correctly describe the subject-matter, and that the other two ordinances, being dependent upon it, fall with it. Section 221 of article 4, P. L. L., entitled "City of Baltimore" as re-enacted in chapter 123, Laws 1898, provides that:

"Every ordinance enacted by the city shall embrace but one subject, which shall be described in its title."

We have seen above what the title is, and have no doubt as to its sufficiency under the many decisions of this court in reference to a similar provision in the Constitution of the state concerning titles of statutes. See, also, Baltimore v. Wollman, 123 Md. 310, 91 A. 339.

2. It is contended that Nos. 169 and 170 are void for the further reason that one of the preliminary notices required was published in German, in a German newspaper, instead of in two papers published in English. We held in Bennett v. Baltimore, 106 Md. 484, 68 A. 14, 19 L. R. A. (N. S.) 121 that-

"It is well settled as a general proposition in this country that in the absence of a direction to the contrary the publication of a notice required by law to be made must be in the English language and in a newspaper published in that language."

At its next session the Legislature passed the Act of 1908, c. 142, which is now section 222a of the charter of Baltimore of 1915. It provides:

"That whenever the mayor and city council of Baltimore, or any official, officer, employee, agent or agency thereof, shall be required or authorized under the provisions of any general or local law, or ordinance, now in force or hereafter to be enacted or adopted, to publish a notice of any description whatsoever in more than one newspaper, one of such newspapers, in the discretion of the said municipal corporation or of the said official, officer, employee, agent or agency thereof, may be a newspaper published in the German language," etc.

The bill does not show who caused the notices to be given by the advertisements-it is only said that it was done by "some person or persons to your orator unknown." We cannot agree with the appellant that under section 828 some "official, officer, employee, agent or agency" of the city could not have caused the advertisements to be published, or, if so, that they would not be within the provisions of the act. Section 828 of the charter not only provides that "notice shall be given by advertisement published twice a week for two consecutive weeks, in two of the daily newspapers in the said city," but that "notice shall also be given by filing, in the office of the commissioner for opening streets, on or before the first day of such publication, a map," etc. It is possible, if not probable, that some one connected with the office of the commissioner for opening streets, or other agency of the city, may have had them published. It is said in section 32 of Ritchie on Mun. Con. that "application for an ordinance to authorize the opening, widening or closing of streets may be made at the instance of the city itself, or at the instance of the property holders," and we can have no doubt about that. It may well happen that the city authorities may desire to have a street opened, widened, or closed. So without deeming it necessary to determine in this case whether the language of Acts 1908, c. 142 (section 222a of Charter) is not sufficiently broad to include such applications as these, even if shown to be made by property holders, as there is nothing in this case which requires us to do so, we are of the opinion that the objections to Ordinances Nos. 169 and 170, on the ground that one of the advertisements was published in a German newspaper, cannot be sustained.

3. It is also contended that the proceedings are void because the preliminary advertisements on which the several ordinances are based did not comply with section 828 of the city charter, in that they did not give the length and width and the present and intended width of the parkway at Beech avenue. No errors in the descriptions are referred to, and unless there were some substantial errors which were misleading and material we cannot understand why any competent surveyor or engineer could not determine the length of the parkway and the present and intended width of Beech avenue. It may be true that a property holder who is not a surveyor or engineer could not readily tell from that long advertisement just what the width of Beech avenue was, and was to be, without a plat or map of some kind to guide him but the same might be said of many advertisements of mortgagees' or trustees' sales or other advertisements in use. A casual reading of the description in No. 678, for example, would inform a man of ordinary intelligence that the proposed parkway was to pass the corner of Chelsea street and Beech avenue and that the general width of the parkway was to be 120 feet, varying from that at certain points. In Riggs v. Winterode, 100 Md. 439, 447, 59 A....