City of Baltimore v. Porter

• Decision Date: 09 April 1862
• Citation: 18 Md. 284
• Parties: MAYOR & CITY COUNCIL OF BALTIMORE, and the CITY COLLECTOR, v. GEORGE U. PORTER.
• Court: Maryland Court of Appeals

18 Md. 284

MAYOR & CITY COUNCIL OF BALTIMORE, and the CITY COLLECTOR, v. GEORGE U. PORTER.

Court of Appeals of Maryland.

April 9, 1862

The Act of 1856, ch. 164, for the grading and paving of North Avenue, requires damages, as well as benefits, to be assessed upon the owners of adjoining lands, and as a preliminary to any proceeding thereunder, that the Mayor and City Council of Baltimore shall determine the proposed work to be consistent with the public good. These requirements of the law were disregarded, and the city commissioner proceeded to have the work done as if it was the ordinary case of grading and paving a street lying wholly within the limits of the city. HELD:

1st. That all the proceedings of the city commissioner in the premises, were coram non judice and void, and a party whose land was about to be sold to pay the tax imposed for such grading, has a right to an injunction to restrain such sale, and a court of equity has jurisdiction to grant the relief.

2nd. Independent of this Act the city authorities had no power to grade this avenue, the land on one side thereof lying in Baltimore county, and in executing the powers thereby conferred, they must conform to the provisions of the law and to the rules and directions therein prescribed.

3rd. The powers thereby conferred could be exercised by them only in the way in which all their powers are executed, by an ordinance adopted for that purpose, prescribing the officer by whom, and the manner in which, the work should be done and providing for the time and manner in which the appeal prescribed by the Act, might be had by the parties interested.

4th. The fact that the party asking the injunction to restrain the sale of his property to pay the tax so improperly levied signed the application to the city commissioner for the grading, does not preclude or estop him from obtaining the relief asked.

5th. An ordinance afterwards passed by the city, and after suit brought, confirming the grading done, was not of binding force, not being authorized by law, and cannot have the effect of ratifying the acts of the city commissioner, nor in any manner change the rights of the parties litigant.

The two systems, for opening and condemning and for grading and paving streets in the city of Baltimore are entirely different, they are provided for by different laws and ordinances, executed by different officers, and governed by different rules and regulations

Where a limited tribunal takes upon itself to exercise a jurisdiction which does not belong to it, its decision amounts to nothing, and does not create the necessity for an appeal.

The principles on which a court of equity interposes by injunction to arrest the illegal proceedings of public functionaries, are well established, and have been sanctioned and sustained by this court.

APPEAL from the Circuit Court for Baltimore City.

The bill in this case was filed by the appellee against the appellants, for an injunction to restrain the defendants from selling the property of the complainant for payment of a tax assessed thereon, for the grading of North Avenue between Pennsylvania Avenue and the Falls Turnpike Road. The bill alleges, that the defendants have no right to charge the complainant with this tax, because they have wholly disregarded the provisions of the Act of 1856, ch. 164, for the grading of this avenue, and from which alone they could derive any authority to make the complainant or his property liable therefor. It also alleges that the proprietors of a majority of feet fronting on the avenue, did not sign the application for grading, but this allegation was denied in the answers, and formed one of the subjects of controversy in the case.

The facts appearing in the record, from the bill, answers and evidence, so far as the same need be stated, are briefly these: The avenue in question forms the northern boundary of the city of Baltimore, the land on one side of it lying in Baltimore county, and on the other in the city, and for this reason the grading and paving thereof was provided for by the special Act of 1856, ch. 164. This law is entitled, " An Act relating to the grading and paving of North Avenue, in the city of Baltimore, supplementary to an Act entitled, an Act to vest certain powers in the corporation of the city of Baltimore, in relation to streets, passed on the 23rd of March 1839," (Act of 1838, ch. 226.) By sec. 1 of this Act it is enacted:--" That on the application in writing of a majority in front feet of the owners of the land in Baltimore county, and in the city of Baltimore, fronting on said avenue, or on any part thereof, to the Mayor and City Council of Baltimore, to have the same, or such part thereof as such majority may apply for, graded or paved, or both graded and paved, they shall have full power and authority, (if in their opinion consistent with the public good, ) to allow the same, and to provide for ascertaining whether any, and what amount of benefit or damage will be caused thereby to the owners of the land on each side of said North Avenue, both in said city and Baltimore county, for which said owner or owners should be compensated, or ought to pay a compensation by reason of the grading or paving, or of both, as aforesaid, and to provide for assessing and levying on the property of persons benefited, within the same limits, the expenses which may be incurred in the grading or paving or both, of said North Avenue, or any part thereof as aforesaid, in the same manner as is now provided by existing laws and ordinances for the grading and paving of streets in the city of Baltimore. " By sec. 4, it is enacted:-- " That the same right of appeal from any assessment of benefit or damage for the grading or paving of said avenue, to the Criminal court for Baltimore city, or Circuit court of Baltimore county, shall be granted to any owner or owners of property aforesaid, under this Act, as is now provided, under existing laws, for appeals within the city of Baltimore or in Baltimore county, in similar cases." After the passage of this Act, a number of proprietors of land, including the complainant, representing themselves to be the owners of a majority of feet fronting on this avenue between Pennsylvania Avenue and the Falls Turnpike Road, made application in writing to have the same graded between those points. Upon this application the city commissioner determined to grade the avenue between said points, advertised for proposals, awarded the contract to W. Slater, assessed the tax, and placed the tax list in the hands of the city collector, who advertised the complainant's property for sale on account of its non-payment. All these proceedings were with the approbation of the mayor, and in all respects in conformity with the ordinances providing for the grading and paving of a street lying wholly within the city limits. The contractor proceeded to do the work and completed the grading at a cost and expenditure of over $100,000. The complainant and others now seeking to avoid payment of the tax, instituted no proceedings to stop the work during its progress, nor made any objection thereto until after the work was finished; and after the same was so completed the Mayor and City Council, on the 9th of December 1858, passed an ordinance declaring, that the contract and all the acts done under and by virtue of the same by the contractor, and all the acts of the city's officers in relation to the grading of said avenue, to be as valid to all intents and purposes as if an ordinance had been passed by the Mayor and City Council of Baltimore, previously to the making of said contract, declaring that the grading of the said avenue would be consistent with the public good, and expressly allowing the same, and further ordaining and declaring, that the grading of said avenue, at the time it was being done, and ever since, and now is, for the benefit of the public, and that the same be and is hereby confirmed and made valid.

The injunction was granted as prayed in the bill, and after answers filed, testimony was taken, the purport of which is sufficiently stated in the opinion of this court, and on the hearing of the motion to dissolve, the court, (KREBS, J.,) on the 2nd of June 1860, passed an order continuing the injunction till final hearing. From this order the defendants appealed.

The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J., and a re-argument was ordered by the court, and the case was again argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.

Oral and printed arguments were made and filed in the case by G. L. Dulany, J. M. Campbell, Geo. W. Williams, Orville Horwitz, Coleman Yellott, and H. R. Dulany, for the appellants; and by Wm. F. Frick, Chas. H. Pitts and Geo. C. Maund, for the appellees. The grounds upon which the case is decided by this court, renders it unnecessary to state many of the points argued, and only those will be noticed which have reference to the questions decided.

On the part of the appellants it was argued:

1st. There is some difficulty in ascertaining the true construction of the Act of 1856, ch. 164, but the interpretation that best harmonizes the various provisions of the law, seems to be, that the legislative intention was to apply, to the grading of North Avenue, a system composed of a combination of the provisions of the acts and ordinances relating to the grading and opening of streets in the city of Baltimore.

2nd. It was not necessary that the city authorities should have directly declared, by the passage of an ordinance, that the work contemplated was " " " consistent with the public good. " The Act does not say such an ordinance shall be passed, and wherever an ordinance is expressly required, it is so...