City of Baltimore v. Radecke

Decision Date27 June 1878
Citation49 Md. 217
CourtMaryland Court of Appeals

Appeal from the Circuit Court of Baltimore City.

The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., BOWIE, MILLER and ALVEY, JJ.

Thomas W. Hall and James L. McLane, for the appellant.

This is simply a question as to the power of the city to regulate the use of steam machinery within the corporate limits.

The possession of this power depends upon the charter of the city, either as conferred by express terms or by necessary implication. This power is clearly derived from the general power to pass all ordinances necessary to give effect and operation to all the powers vested in the corporation of the city. Code of Pub. Local Laws, Art. 4, sec. 33.

The special jurisdiction or authority over the subject-matter of this controversy may be referred,

1st. To the power to pass ordinances for the prevention and extinguishment of fires. Code of Pub. Local Laws, Art. 4 sec. 236.

2nd. To the power to pass ordinances for securing property and persons from violence, danger or destruction, and for promoting the great interests and insuring the good government of the city. Ib. sec. 32.

These powers are usually styled police powers and regulations, and if any one is injured by their exercise it is damnum absque injuria, upon the principle that the safety of the people is the highest law, and that every owner of property must use it so as not to injure his neighbor, or the community at large. 1 Dillon on Mun. Corp. 210; Cooley's Const. Lim. 572, 594, 595; Commonw. v. Alger, 7 Cush. 53.

If the power is not to be found in these clauses of the city charter, then it is clearly referable to the power to prevent as well as to remove nuisances. Code of P. L. L. Art. 4, sec. 797.

This clause of the city charter has been construed and sustained by the Court of Appeals in Harrison v. Baltimore, 1 Gill, 265.

It is spoken of in this case as the transfer to the city of a ""salutary and essential power," and as being conferred "in terms as explicit and comprehensive as could have been used for such a purpose."

Not only has the power been conferred, but the city cannot escape the responsibility of its execution, as the word power in this connection has been held to mean duty and obligation. Marriott v. Baltimore, 9 Md. 160.

The Ordinances of 1858, and 1864, and the permit granted to the appellee in 1866, to erect and use a steam engine, were all passed in pursuance of the power vested in the city to prevent fires, whether that power was exercised under the clause conferring it in terms, or under the other clause of the charter, authorizing it to protect persons and property and to prevent nuisances.

If this appears upon the face of these Acts of the Mayor and City Council, the particular power in pursuance of which the ordinances were passed need not be stated, as the authority will be judicially regarded as emanating from that power which would have warranted its passage. Meth. Church v. Baltimore, 6 Gill, 391; 1 Dillon on Mun Corp. sec. 252.

But not only is it very clear that full power and authority over this subject has been conferred by the charter of the city upon the Mayor and City Council, but, it is contended also that the Ordinances of 1858, and 1864, prescribing the conditions upon which steam engines and boilers may be erected and used in the city, have been ratified and approved by Act of Assembly. The Act of 1872, ch. 153, after providing for the inspection of steam boilers and engines in the city, enacts in the 14th section that nothing in said Act shall conflict with the Ordinance of the Mayor and City Council of Baltimore, which requires their permission for the erection of steam boilers in the city.

There is nothing in the Act which causes such a conflict, as all of its provisions are aimed at providing a system for inspecting boilers and engines then erected and in operation. When therefore, the language above quoted was used, it must have been the intention to approve the Ordinance of the Mayor and City Council referred to, as otherwise the words have no meaning. Taken in connection with the antecedent grant of power, the conclusion seems irresistible that the Mayor and City Council have jurisdiction over the subject.

Is the by-law or ordinance it has adopted in execution of this power so unreasonable as the courts will be justified in interfering and setting it aside?

In the first place if there has been a complete transfer of this power to the city by the State, the mode and the means of its exercise are not legitimate subjects of inquiry by the courts.

The selection of the means and the manner of exercising the power are confided to the sound discretion of the municipal authorities. Meth. Church v. Baltimore, 6 Gill, 400; Harrison v. Baltimore, 1 Gill, 277; Goszler v. Georgetown, 6 Whart. 595; 1 Dillon on Mun. Corp. 178.

In this case the Mayor and City Council have adopted the requisite legislation. The manner of applying for a permit, the subsequent publication of the notice that such application has been made, the terms and conditions upon which it will be granted, are fully set out and expressed in the ordinances referred to. One of these conditions is to remove on six months notice by the Mayor. The Mayor, therefore, when he gives the notice is not making a law, he is simply executing one already made, in the mode pointed out by it.

The ordinances in question are not to be regarded as by-laws adopted in pursuance of the implied powers incidental to the creation of the corporation, but as having been passed in pursuance of a special grant of power by the Legislature. Such a grant adds to the powers incident to the creation of the corporation. State v. Morristown, 33 N. J. 62.

If it be conceded that the Mayor and City Council has the right to regulate the use of steam machinery within the city limits, then there is nothing unlawful or unreasonable in prescribing the condition as to removal upon notice.

If it be conceded that the city has the right to prescribe the terms upon which an engine may be erected, then it follows on the other hand that it may fix the conditions of discontinuance or removal. But then it is insisted that this is not regulation, but prohibition. But this is not so, as the appellee may carry on the business elsewhere in the city, where the danger of loss by fire, or injury to persons and property would not be so great. It would be practicable for him to saw up the material necessary for his boxes at a locality where steam could be used without great risk, and then put the pieces together at his present place of business.

The ordinance does not prohibit his business; it simply denies him the right to use in its conduct, at a particular place, a motive power, which may prove specially destructive to persons and property, leaving other localities open to him. Baker v. Boston, 12 Pick. 194; Harvey v. De Woody, 18 Ark. 260; 2 Kent, 340, and note; Slaughter House Cases, 16 Wall. 62.

Nor is it a valid objection that the proceeding is against him only, and others carrying on the same business by the same means, in equally dangerous localities, are permitted to go on without interruption or hindrance. If this court should agree with us, it will be in order then to proceed against the others.

But, assuming that the appellee has a real grievance for which he is entitled to relief, the question occurs, has he not mistaken his remedy? If judgment had gone against him, for the penalty sued for before the justice of the peace, an appeal could have been had to the Baltimore City Court, and at the trial of the case on appeal, the validity or invalidity of the ordinance under which the penalty was imposed, would necessarily have been drawn in question. It follows, therefore, that the appellee, in that court, could have availed himself of a defense equally as valid as the defense he now sets up, and, that being the case, it has been decided in terms, that an injunction will not lie until the question as to the invasion of the ordinance has been settled in a suit at law. Hilliard on Injunc. 274; West v. Mayor, 10 Paige, 539; 1 Dillon on Mun. Corp. sec. 309.

E. Duffy and S. Teackle Wallis, for the appellee.

As a matter of fact the use of the steam engine by the appellee in his business was not a nuisance or a quasi nuisance. The business was carried on with care and safety, and it does not injure the surrounding property.

"The fears of mankind, though they be reasonable, will not create a nuisance." Rhodes v. Dunbar, 57 Pa. St. 289; Carpenter v. Cummings, 2 Phila. 76; Wood on Nuisances, 151, 484.

The mere declaration of the Mayor and City Council that a thing is a nuisance does not make it one. 1 Dillon Mun. Corp. sec. 308; Addison on Torts, 33-35; Yates v. Milwaukee, 10 Wall. 505.

Ordinances must be reasonable, impartial, not oppressive, and they may regulate, but cannot restrain trade. Wood on Nuisances, 773-776, and n. 1, 774; Pieri v. Mayor, 42 Miss. 495; Hayes v. The City, 24 Wis. 544; 1 Dillon on Mun. Corp. secs. 253, 303, n. 2; 7 Paige, 263; Cooley on Const. Lim. 201, 202; Sedgwick on Const. Constr. 402.

Here the ordinances and Act of the city are a total prohibition against the appellee, because while they forbid them from going on in McClellan's alley, they do not provide a place where he may carry on his business elsewhere. If the appellee leave McClellan's alley, he cannot, under these ordinances, commence elsewhere in the city without the permission of the Mayor and City Council, and should the city be successful in its action against him, he would be prohibited while his neighbors...

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