City of Annapolis v. State

• Decision Date: 28 January 1869
• Parties: THE MAYOR, RECORDER AND ALDERMEN OF THE CITY OF ANNAPOLIS v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

30 Md. 112

THE MAYOR, RECORDER AND ALDERMEN OF THE CITY OF ANNAPOLIS v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

Jan. 28, 1869

APPEAL from the Circuit Court for Anne Arundel County.

The appellants were indicted at October Term, 1866, of Anne Arundel County Court, for encroaching upon, stopping up and obstructing, on the 30th of March previous, South street alleged to be a public highway in the city of Annapolis. The indictment contained four counts: the first charged the obstruction by the erection of a plank fence, by certain persons to the jurors unknown, and which was unlawfully allowed to remain by the appellants; the second, by the erection of a fence by a certain George Wells, and unlawfully allowed to remain by the appellants; the third, by the erection of a fence by the appellants, and by them unlawfully allowed to remain; and the fourth charged that the appellants unlawfully permitted the said Wells to erect the fence and allowed the same to remain. To the indictment the appellants demurred. The Court (W. T. IGLEHART, Special Judge,) overruled the demurrer, and on the 27th of September, 1867 the appellants pleaded to the indictment, alleging that in the year 1836, they gave permission to said Wells to close South street, by the erection of the fence, he paying no rent for the use of the same until 1858, when he was required by them to pay annually, the sum of $12, for the use and occupation of the bed of the street, which sum he continued to pay until the 29th of March, 1866, when the appellants sold to him, for the sum of $200, the bed of the street reserving to themselves the right to re-open the street whenever they should deem it expedient, upon refunding the purchase money, and that said street remained closed by virtue of the aforesaid permission, order, contracts, &c. They further alleged that after the finding of the indictment, to wit: on the 19th of March, 1867, the General Assembly of Maryland passed an Act, to take effect from its passage, entitled "An Act to amend and alter the charter of the city of Annapolis," (1867, ch. 240,) wherein, among other things, power was granted to the appellants "to establish new streets, lanes and alleys, and to widen and extend, stop up or discontinue new streets, lanes and alleys, which might thereafter be opened in virtue of the power thereby invested in the appellants; but nothing therein contained should relate to or in any manner affect any streets, lanes or alleys which had been at any time theretofore opened and used as public highways;" and it was further provided, "that all acts, contracts, deeds or ordinances of the appellants made, &c., in reference to the closing or discontinuance of any street, &c., was thereby declared and made operative and valid, in the same manner as if the appellants had full power to do the same at the respective times when the same were severally doue." To this plea the appellee demurred; the Court sustained the demurrer and passed a final judgment, imposing upon the appellants a fine of one cent, and requiring that the obstructions on South street, constituting the nuisance, should be forthwith removed and abated at their cost and expense. From this judgment the present appeal was taken.

The cause was argued before STEWART, GRASON, ALVEY and ROBINSON, J.

Alexander B. Hagner, for the appellants:

The Court below should have given judgment on the demurrer to the appellant's plea against the State. The acts of permission on the part of the corporation, in connection with the curing Act of 1867, ch. 240, as set forth in the plea, constituted a bar to the indictment. Angell on Highways, secs. 323, 324; Washburne on Easements, p. 553, secs. 3, 13; 2 Bishop's Crim. Law, sec. 1058, p. 90, sec. 31, p. 94, sec. 36, p. 111, sec. 67; Rex vs. Pease, 4 B. & Ad., 30; The People vs. The Corporation of Albany, 11 Wend., 544; Respublica vs. Arnold, 3 Yeates, 418; The Regents, &c. vs. Williams, 9 G. & J., 401, 426; State vs. B. & O. R. R. Co., 12 G. & J., 434, 438; Mayor, &c., of Balto. vs. Police Board of Balto., 15 Md., 462, 491; Borden vs. Vincent, et al., 24 Pick., 301; Pollard vs. Barnes, 2 Cush., 191; Cuthbert vs. Lawton, 3 McCord, 195; The People vs. Law, 34 Barbour, 494, 498; 6 Barn. & Cress., 264, 271.

The second section of the Act of 1867, ch. 240, ratified all former acts of the corporation in reference to the closing or discontinuance of streets, &c. Similar Acts have repeatedly been passed by the Legislatnre on the same subject. 1847, ch. 158; 1853, ch. 185; 1866, ch. 46; 1867, ch. 294; 1867, ch. 387.

The Act was not unconstitutional in form. Davis vs. The State, 7 Md., 158; Franklin vs. State, 12 Md., 235; Parkinson vs. State, 14 Md., 184.

The corporation was not indictable for an act of misfeasance. 12 Mad., 559; State vs. Great Works Milling and Man. Co., 20 Maine, 41; 2 Virg. Cas., 362; Angel & Ames on Corp., secs. 394, 396; Wroe vs. State, 8 Md., 416; Fowle vs. The Common Council of Alexandria, 3 Peters, 409; The People vs. The Corporation of Albany, 11 Wend., 542.

Wm. Tell Claude and Isaac D. Jones, (Attorney General,) for the appellee:

A corporation may be indicted for breach of duty. Com. vs. Worcester Turnpike Co., 3 Pick., 327; State vs. Great Works Co., 2 App., 41; People vs. Corp. of Albany, 11 Wendell, 539.

An indictment will lie against a corporation for not repairing roads, &c. Simpson vs. State, 10 Yerger, 525; State vs. N. J. Turnpike, 1 Harr., 222; State vs. Patton, 4 Iredell, 16.

A fence in a public highway is a nuisance, for which there may be indictment, trial and conviction, and if charged with a continuance at the date of the inquisition, it justifies a judgment to abate the nuisance. Wroe vs. State, 8 Md., 416; Gregory vs. Com., 2 Dana, 417.

The power of a Municipal Corporation over public property, does not confer authority to sell or use it in a way variant from the intended object. Com. vs. Alburger, 1 Whart., 469.

The second section of the Act of 1867, ch. 240, was retrospective, and ratified former acts of the Corporation in certain cases, but the Legislature could not, by retrospective legislation, make valid any act of a subordinate tribunal, which would be illegal and without effect if executed by the Legislature itself, in the exercise of original jurisdiction.

The Legislature, under the power of eminent domain, may take private property for public use; it is a sovereign power, inherent in the State, and may be delegated to individuals or corporations within proper limitations, but the power is not absolute and unqualified; it cannot be exercised or delegated except for the public use and benefit, and then only upon the payment or tender of just compensation for all damages sustained in its execution. The opening and closing of streets is an exercise of that sovereign power, but subordinate to the Constitution and fundamental principles of law, so that the Legislature cannot, without proper qualification, confirm all former acts, &c., of a Municipal Corporation in reference to the closing or discontinuance of streets; therefore the second section of 1867, ch. 240, is inoperative. Constitution of 1864, Article 3, sec. 39; Hoye vs. Swan's Lessee, 5 Md., 237; tide Water Canal Co. vs. Archer, 9 G. & J., 479; Moale vs. Mayor, &c., of Baltimore, 5 Md., 314; Reddall vs. Bryan, and others, 14 Md., 444; Bellona's case, 3 Bl., 442; State, ex rel., McClellan vs. Graves, 19 Md., 351; Kane vs. Mayor, &c., of Baltimore, 15 Md., 240.

As a natural sequence, the Legislature, in its exercise of power, could not take property from one man and give or sell it to another; could not take part of a public street and give, rent or sell it to a private citizen; could not take public property, in which all citizens had a common right, and give, rent or sell it to an individual for his own private use and occupation; nor could such acts done by any other authority be legally confirmed.

By the Constitution of 1864, it was provided that every law should embrace but one subject, and that should be described in the title. The second section of the Act, pleaded in bar to the indictment, is embraced in an Act, entitled "an Act to amend and alter the charter of the city of Annapolis;" this section confirms certain acts, deeds and ordinances of the Corporation of Annapolis, and is neither to amend nor alter the charter of the city, but embraces a subject altogether foreign to that instrument; this section makes the law to embrace more than one subject, and that not described in the title, and it is therefore void. State Constitution 1864, Art. 3, sec. 28; Davis vs. State, 7 Md., 151.

ROBINSON J., delivered the opinion of the Court.

The view we take of this case, makes it unnecessary to decide whether the traversers, a Municipal Corporation, are liable to indictment for obstructing or closing South street alleged to be a public highway, in the city of Annapolis. If this be conceded, we are clearly of opinion, that their special plea, setting forth the acts of permission in pursuance of which the obstruction was erected, in connection with the provisions of the curing Act of 1867, ch. 240,...