Etchison v. Frederick City
| Decision Date | 09 April 1914 |
| Docket Number | 31. |
| Parties | ETCHISON v. MAYOR AND ALDERMEN OF FREDERICK CITY et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Frederick County, in Equity; Hammond Urner, Edward C. Peter, and Glenn H. Worthington, Judges.
"To be officially reported."
Bill by Marshall L. Etchison against the Mayor and Aldermen of Frederick City and Emory C. Crum, City Surveyor. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, STOCKBRIDGE and CONSTABLE, JJ.
George M. Brady, of Baltimore, and H. Dorsey Etchison, of Frederick (Maloy & Brady, of Baltimore, on the brief), for appellant. Leo Weinberg and Edward J. Smith, both of Frederick, for appellees.
By chapter 560 of the Acts of 1908, the General Assembly of Maryland conferred upon the mayor and aldermen of Frederick City certain powers and authority as to the control of its streets and highways, and among other things provided as follows:
"To regulate the use of sidewalks for use of signs sign-posts, awnings, posts, horse-troughs, telegraph posts trolley poles, electric light poles, telegraph wires electric light wires, and for any and all other purposes, and to prohibit the erection of any posts, poles, or wires and to compel the removal of any posts, poles or wires in, over or above any street, side-walk or highway."
On the 1st day of August, 1913, the mayor and aldermen of Frederick, in pursuance of the power thus conferred by the act of 1908, passed an ordinance prohibiting the erection and providing for the removal of all hitching posts, sign posts, awning poles, and posts and poles of every description (except telegraph, telephone, electric light, and trolley poles, and ornamental lighting posts) on the pavements, within three feet of the curb lines, and prohibiting the tying of animals of the horse kind to any trees, tree boxes, telegraph, telephone, electric light, and trolley pole, and ornamental lighting posts, on Market street, between Clerk Place and Fifth street, and on Patrick street, between Court street and Middle alley, in Frederick City, Md., and providing a penalty for violation thereof.
The ordinance is set out, in the record, marked Plaintiff's Exhibit No. 2, and provides, in addition to a fine and imprisonment for its violation or failure to comply with its terms, that, if the owner of the premises in front of which such poles or posts may stand shall fail to comply with the ordinance within 60 days after notice from the city engineer, they shall be removed by that officer at the owner's expense.
The plaintiff is the owner of a business building situate on Market street, in Frederick City, within the designated limits prescribed by the ordinance, and maintains an awning built in and fastened to the front wall of the building, and supported at the sidewalk by three iron poles, about three inches in diameter, and about nine feet apart. The awning is on or about seventeen feet above the sidewalk, and is supported by these three iron posts, poles, or uprights.
On the 19th of August, 1913, the plaintiff received from the city engineer of Frederick City a notice to remove these posts or poles as provided by the ordinance, and the plaintiff by this proceeding asks a court of equity by injunction to enjoin the defendants from removing the iron posts or uprights supporting the awnings, and from in any way enforcing the ordinance. The case was heard upon the bill of complaint, the defendants' motion to dissolve the preliminary injunction, which had been previously issued, and upon a demurrer to the bill. The defendants' demurrer to the bill of complaint was sustained, and the plaintiff's bill was dismissed by an order signed by a majority of the circuit court for Frederick county dated on the 13th of December, 1913, and it is from this order an appeal has been taken.
It is objected, upon the part of the appellant: First, that the mayor and aldermen of Frederick City were not authorized by their charter to pass the ordinance in question, because the power to remove awning posts and poles was not specifically conferred by the act of 1908; second, that if they had the authority and power to do so, the ordinance is invalid because arbitrary, oppressive, unreasonable, and discriminative; third, that the ordinance and its enforcement would deprive the plaintiff and those similarly situated of their property without due process of law, and would deprive them of the equal protection of the law.
As to the first objection, we need only say that we think the ordinance is entirely within the legislative grant, which authorizes the mayor and aldermen of Frederick City to regulate the use of awnings, and to compel the removal of any poles or posts on any of the streets of the city.
The language of the act of 1908, c. 560, it will be seen, is broad and comprehensive, and provides in terms that the mayor and aldermen of Frederick shall have power to provide by ordinance, among other things:
"To regulate the use of sidewalks, for use of signs, sign posts, awnings, posts, *** and for any, and all other purposes, and to prohibit the erection of any posts, poles or wires, and to compel the removal of any posts, poles, or wires, in, over and above any street, side walk or highway."
It is difficult to see what words the Legislature could have used that would have more explicitly and expressly conferred the power here in question upon the mayor and aldermen than the language used in the act itself.
The power as conferred was a reasonable one, and was intended for the purpose of enabling the mayor and aldermen to maintain and preserve the streets and highways of the city in the character of streets in such condition as may be most suitable for the public use. Lake Roland R. R. Co. v Baltimore, ...
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