City of Baltimore v. Eschbach

• Decision Date: 04 April 1862
• Parties: THE MAYOR & C. C. OF BALTIMORE, v. JOHN ESCHBACH.
• Court: Maryland Court of Appeals

18 Md. 276

THE MAYOR & C. C. OF BALTIMORE, v. JOHN ESCHBACH.

Court of Appeals of Maryland.

April 4, 1862

Under the ordinances of the city of Baltimore, the city commissioner can make contracts for grading and paving, and assess taxes therefor in two classes of cases, viz: 1st, upon application of the proprietors of a majority of front feet where the street has been condemned; and 2nd, upon the like application of all the proprietors of ground fronting on the street where it has not been formally condemned.

Without such an application he is entirely destitute of the official character and power, in and by which alone he can take any lawful proceeding, or make any valid contract for such work and the power of the mayor to approve of his determination to grade and pave, and of his contracts for the same, is limited to the same classes of cases, and controlled by the same conditions.

A contract made by the city commissioner for grading and paving, upon the application of the owners of a majority of feet fronting on a street not formally condemned, is invalid, and not obligatory upon the city, and the contractor can maintain no action against the city on the contract, nor for damages for violating or disregarding its provisions.

Though a private agent, acting in violation of specific instructions, yet within the scope of a general authority may bind his principal, the rule, as to the effect of a like act of a public agent, as the officer of a municipal corporation, is otherwise.

The powers and duties of the city commissioner are specially defined and limited by ordinances having the character and force of public laws, ignorance of which can be presumed in favor of no one dealing with him as to matters thus conditionally within his official discretion.

A municipal corporation cannot be held liable for the unauthorized acts of its agents, though done officii colore, without some corporate act of ratification or adoption.

APPEAL from the Superior Court of Baltimore City.

Action brought September 5th, 1856, by the appellee against the appellants, to recover damages for default of the defendants in imposing a valid tax for the work done under a contract made by the plaintiff with the city commissioner, for the grading and paving of Hull street. All the material facts of the case are stated in the opinion of the court, and as, by that opinion, the right of the plaintiff to recover is decided against him, it is unnecessary to state the various rulings of the court below, (LEE, J.,) to which the defendant's excepted. The verdict and judgment were in favor of the plaintiff, and the defendant's appealed.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.

G L. Dulany, for the appellants.

According to the true construction of the laws and ordinances relating to the paving of streets, and especially of Rev. Ord. of 1850, No. 15, secs. 1 & 36, the signing of the owners of a majority of feet fronting on the street to be paved, is sufficient to vest jurisdiction over the same in the city commissioner, in every case where the title to the bed of the street was, at the of the time of the application, owned by the city authorities, either by a formal condemnation, or by deed or dedication. If this construction is correct, there is an end of this case, for there was sufficient evidence to be left to the jury from which they might find a dedication of this street. Angell on Highways, secs. 143 to 149. 1 Md. Rep., 525, West vs. Flannigain. But if wrong in this respect, still the city is a municipal corporation acting through its agents, and if the agent exceeds his authority, he alone is responsible and the city is exonerated. When the city commissioner, entering into a paving contract, acts within the scope of his authority, the property holders are bound; if he transcends his powers, he alone is liable:--in neither event can the city be held responsible. 2 Md. Rep., 70, Keener vs. Harrod, et al. The contract between him and the paver, is a contract private in its nature, and being a special agent, the contractor was bound to know the extent of his authority. 9 Pick., 542, Snow vs. Perry. Knowledge and extent of an agent's authority, is much more readily presumed in the case of an officer of a corporation than of an agent of a private person, because the ordinances or by-laws regulating or creating his duties, are open to the inspection of every one. 17 Mass., 28, Salem Bank vs. Gloucester Bank. If the construction put upon the laws and ordinances by the appellee be the correct one, the city commissioner in determining to pave Hull street, clearly acted beyond the scope of his authority. The appellee before entering into the contract with the property holders through their agent, was bound to have examined into the powers of that agent. The law requires him to do so, and this court, in Henderson's Case, 8 Md. Rep., 360, have decided, that he acts in such cases at his own peril. In not doing so, therefore, he was guilty of carelessness and indifference to his own interest, and cannot ask relief from the law. The ordinance here expressly declares that in no case, whatever, shall the city be made responsible for the paving done in compliance with its provisions, and expressly requires a clause to that effect to be inserted in all paving contracts, and such a clause was inserted in the contract of the appellee. There can be no recovery as against the city on this contract. Story on Agency, sec. 321. 3 Pet., 409, Fowle vs. Alexandria. 4 Gill, 425, Lefferman's Case. 5 Gill, 244, Morris' Case. All the powers of the commissioner in relation to the paving of streets, are derived from the property holders:--he is their agent, and they on the one side and the contractor on the other, are the real parties to every paving contract. The consideration moves from them to him, and the city intervenes through its officers merely to guard the public interests--to ensure the performance of the work in which the community at large are interested.

I. N. Steele and Geo. M. Gill for the appellee.

By the laws of this State the whole subject of grading, paving opening, closing and condemning streets in the city of Baltimore, are referred to the Mayor and City Council of Baltimore, and, in the exercise of this power, Ordinance No. 15 of Rev. Ord. of 1850 was passed, regulating the grading and paving of streets. This ordinance has reference to two kinds of streets, one, a street legally condemned, the other, a street which has not been legally condemned, and in the former case the grading and paving may be done upon application of the owners of a majority of front feet, but in the latter it cannot be done except upon the application of the owners of all the ground fronting and binding on the street. The contract in this case was made in the usual form, and we insist that the city authorities had the right to make such a contract; it was within their power, and the fact that they applied their power to a wrong object can make no difference; and in support of this position we insist:

1st. That the city commissioner is the agent of the city and not of the property-holders, and in making this contract he acted within the scope of his authority and under express power given him in words by the ordinance. The property-owners are in no sense parties to the contract, which is just as binding on the city as if the city itself had made it. 19 New York Rep., 118, Brewster vs. City of Syracuse.

2nd. The contract is to be gathered from the written instrument itself, and the ordinances which form a part of it, and so viewed the contract here is, that the city on...