Davidson v. City of Baltimore

• Decision Date: 23 January 1903
• Citation: 53 A. 1121,96 Md. 509
• Parties: DAVIDSON et al. v. MAYOR, ETC., OF CITY OF BALTIMORE.
• Court: Maryland Court of Appeals

53 A. 1121

96 Md. 509

DAVIDSON et al. v. MAYOR, ETC., OF CITY OF BALTIMORE.

Court of Appeals of Maryland

January 23, 1903

Appeal from circuit court of Baltimore city; Pere L. Wickes, Judge.

Bill by Robert C. Davidson and others against the mayor and city council of Baltimore. From an order sustaining a demurrer to the bill, plaintiffs appeal. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, PEARCE SCHMUCKER, and JONES, JJ.

G Lloyd Rogers, Isidor Goldstrom, John V.L. Findlay, Thomas Mackenzie, and Armstrong Thomas, for appellants.

Wm Pinkney Whyte and Olin Bryan, for appellee.

PAGE J.

The bill in this case was filed by certain residents and taxpayers of the city of Baltimore. They allege that, by virtue of an ordinance and resolution of the mayor and city council of Baltimore, a lot was acquired in the city, and a building erected thereon, for the use of English-German school No. 1, and that the said building has been used for that purpose since its completion. Both the ordinance and resolution are set out in the bill; being Ordinance No. 120 and resolution No. 51. Section 1 of the ordinance authorizes and directs the mayor, comptroller, and president of the board of commissioners of public schools "to lease a lot," etc., "for the purpose of erecting thereon a building for the use of English-German school No. 1." Section 2 provides that the inspector of buildings is authorized and directed "to have erected" on the lot "a suitable building for the use of English-German school No. 1," and that the sum of $2,500 be appropriated to defray the cost of erection. The resolution also directs the inspector of buildings "to proceed with the erection of English-German school No. 1," and appropriates, in addition to the amount already appropriated by the ordinance, the further sum of $1,000. It is further charged in the bill that the complainants are informed that the board of school commissioners of Baltimore city "have determined to change the use of the said premises from the English-German school No. 1 as provided for by said ordinance, and to use said premises for other and different purposes"; also that the board have determined "to use the premises for the purpose of a colored high school, in violation of the law under which the said premises were acquired, contrary to the provisions of said ordinances." The prayer of the bill is that the mayor and city council and the board of school commissioners of Baltimore city, defendants above named, may be restrained and enjoined from using or permitting the use of the premises for any other purpose than that of the English-German school No 1, as provided for and authorized by the ordinances above set out, and such other relief as the nature of the case may require. Upon demurrer interposed by the defendants, the court dismissed the bill, and the complainants appealed.

It is insisted on the part of the complainants that the provisions of the ordinance as to the uses to which the lot and building thereon may be put are mandatory, and therefore the only legal use to which they can be applied is for the purposes of the English-German school No. 1. The charge in the bill is that the school board "have determined to change the use of the said premises," etc., from that of the English-German school No. 1 to that of a colored high school. But there is no averment that this contemplated change is to be effected without the concurrence and authority of the mayor and city council. The attitude of that body is, in fact, that of resistance to the claim of the appellants that the proposed action of the school board is in violation of law and "unwarranted." The claim of the appellants therefore carries with it the necessary implication that by the passage of the ordinance the corporation has deprived itself of all power to employ the premises for any other purpose than that for which they were purchased although the public necessities may at some other period absolutely demand that their use should be altered. This view would be in violation of the terms of the charter, for by the first and second sections of that instrument all the property of the city is vested in them, with full power of disposition of it in the manner and terms therein provided. Under the lease the mayor and city council became the owner of the premises, and by reason thereof had...