Frederick County v. Groshon

• Decision Date: 13 April 1869
• Citation: 30 Md. 436
• Parties: THE MAYOR, ALDERMEN AND COMMON COUNCIL OF FREDERICK v. GEORGE S. GROSHON.
• Court: Maryland Court of Appeals

30 Md. 436

THE MAYOR, ALDERMEN AND COMMON COUNCIL OF FREDERICK v. GEORGE S. GROSHON.

Court of Appeals of Maryland

April 13, 1869

APPEAL from the Circuit Court for Frederick County, in Equity.

The appeal in this case is from a decree making perpetual an injunction restraining the appellant from taking possession of certain land of the appellee in Frederick city, condemned by the city for certain public uses.

The nature of the case is fully stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ALVEY, J.

Jas. McSherry, Jr., and Fred. J. Nelson for the appellant:

Where there is full, adequate and complete remedy at law, equity will not interfere. Williams vs. West, 2 Md., 174; Clayton, et al. vs. Carey, 4 Md., 26.

If the repeal of the Act of 1847, ch. 224, be in issue under the pleadings, the appellants contend that it is unrepealed because: 1st. The Legislature had no power to repeal it. The appellants, "The Mayor, Aldermen and Common Council of Frederick," are a body corporate. Act of 1816, ch. 74. As such, they are capable of enjoying privileges and immunities. Angell & Ames on Corp., sec. 2; 3 Kent's Comm., 459 (margin.)

The Act of 1847, ch. 224, is a special Act passed by the Legislature, at the instance of sundry citizens of Frederick, granting to the Mayor, Aldermen and Common Council of Frederick, and their successors, the power to widen Carroll Creek. The power thus granted is a franchise.

The doctrine of the inviolability of a grant made by the State, is applicable to public corporations. Angell & Ames on Corp., secs. 33 and 767; Bailey vs. Mayor, &c. of New York, 3 Hill, 531; 2 Kent's Comm., 275, (margin;) Dartmouth College vs. Woodward, 4 Wheat., 694.

"Corporate franchises attached to public corporations, are legal estates coupled with an interest, and are protected as private property. " A corporation may therefore be public, and yet have and exercise a franchise not incident to its ordinary governmental functions; quoad hoc, it will be treated as a private corporation. Thus the appellant's charter, Code of Public Local Laws, Article 11, section 81, empowers them to "purchase and hold real, personal and mixed property." With reference to any property the appellants may hold under this provision, they must be treated as a private corporation, even ""though the public may derive a common benefit from it." Moodalay vs. East India Co., 1 Bro. Ch. R., 469; 2 Kent's Comm., 275, (margin.)

The Act of 1847 grants to the appellants the power to condemn for their own use, in fee simple, certain property for a specific purpose, not connected with, nor incident to their ordinary municipal functions. They were empowered to widen Carroll Creek for the single purpose of preventing a recurrence of the disastrous consequences occasioned by sudden risings of the stream. This power slumbered unexercised, until the great flood of July last, demonstrated the absolute necessity of using it. The power granted by the Act, is no part of the appellants' political franchises. Political power granted to a public corporation may be revoked. The People vs. Morris, 13 Wend., 332.

2d. Because if the Legislature had the power to repeal the Act of 1847, ch. 224, it was expressly exempted from repeal by the adoption of the 3d section of Article 1 of the Code of Public General Laws. Code Pub. Gen'l Laws, Art. 1, sec. 3.

The applicability of this section to public corporations is perfectly apparent, if a distinction between a public and private corporation be kept in view. The distinction we allude to is thus stated by Chancellor KENT: "In respect to public corporations which exist only for public purposes, the Legislature, under proper limitations, may change, enlarge, restrict or destroy them. Private corporations are contracts between the government and the corporators, and the Legislature cannot repeal, impair or alter the rights and privileges conferred by the charter, against the consent and without the default of the corporation judicially ascertained and declared." 2 Kent's Comm., 305, 306, ( margin.)

A private corporation is beyond legislative control. The adoption of the Code could therefore in no way affect any right or privilege held by a private corporation. If no rights, &c., of a private corporation could have been impaired by the adoption of the Code, this section can only apply to such corporations as could have been affected by the adoption of the Code.

Again, the Act adopting the Code purports to repeal only such Public General and Public Local Acts as are not embraced in the Code. Act of 1860, ch. 1, sec. 1.

No private Act is contained in the Code, no Act conferring power upon a private corporation. The Legislature was dealing only with Public Laws.

The Act of 1860, ch. 1, then repeals any Public General or Public Local Act not incorporated in the Code, unless there be some saving or reservation of such Act from repeal.

The 2d section of the Act of 1860, ch. 1, provides "that the savings and reservations and rules of interpretation contained in the 1st Article of the Public General Laws, be and the same are hereby made a part of this Code."

The 3d section of Article 1, saves and reserves from repeal rights and privileges which would have been repealed by reason of not being incorporated in the Code; not the rights of private corporations, because the Legislature could not interfere with them, and because the Act adopting the Code repeals only Public General and Public Local Acts not incorporated in the Code.

William P. Maulsby, for the appellee:

The charge in this cause is not a mere temporary trespass, which can be recompensed in damage. It is a claim of right under charter provisions, not the act of a wrong doer, without color or pretence of right. Even if a trespass, as the act complained of destroys the premises as it has been held and enjoyed, injunction lies. White vs. Flannigain, 1 Md., 539, &c. Shipley vs. Ritter, et al., 7 Md., 413; Roman vs. Strauss, 10 Md., 97; Baugher, and others, vs. Crane, 27 Md., 36, &c.

Assuming that the remedy by injunction in this case is the appropriate remedy in case the corporation has no right by virtue of its charter to condemn the premises, the appellee contends that the corporation has no right, under its charter, to condemn the premises of the appellee for the purposes of. widening Carroll creek. The appellants contend that such power is vested in them by the Act of 1847, chap. 224. The appellee takes the position that if not accepted prior to the adoption of the Code of Public Local Laws, said Act has ceased to exist, not being incorporated in the charter of the Corporation of Frederick. Article 11, Code of Public Local Laws, entitled Frederick, sections 81 to 147 inclusive.

The Act passed at January session, 1860, chap. 1, adopts the Code of Public General Laws and Public Local Laws, as a substitute for all Public General Laws and Public Local Laws heretofore passed by the Legislature. The savings and reservations contained in the articles of interpretation, being made part of the Code.

Public municipal corporations are under the exclusive control of the Legislature, and may be repealed, altered or amended, at the pleasure of the Legislature. They have no vested rights in opposition to the powers of the Legislature. 2 Kent's Comm., 274; The People vs. Morris, 13 Wend. 329, &c. The Regents, &c. vs. Williams, 9 G. & J., 398, 401; State, use of Washington County, vs. Balt. & Ohio R. R. Co., 12 G. & J., 430, 440.

Assuming that the grant of powers under the Act of 1847, chap. 224, is saved by the reservations in section 3, Article 1st, of the Code, yet the charter, as codified, being accepted by the Corporation of Frederick, as evidenced by sundry amendments, as for instance, Act of 1864, chap. 1, and such charter containing no provision similar to the powers conferred by the Act of 1847, chap. 224, that Act is no longer in force, and is repealed by the new charter. The Regents, &c. vs. Williams, 9 G & J., 419; The King vs. Westwood, 20 E. C. L. R., 1; Angel & Ames on Corporations, 59, &c.

The case now before the Court is within the principles decided in the case of White vs. Flannigain, 1 Md., 544, upon two of the propositions decided by the Court: first, where full and adequate relief cannot be granted at law; second, where the trespass goes to the destruction of the property as it had been held and enjoyed. Upon either of these grounds the injunction can be maintained.

ALVEY J., delivered the opinion of the Court.

The object of the bill in this case was to obtain an injunction to restrain the appellants, a municipal corporation, from appropriating the land and premises of the appellee to public purposes.

The appellee alleged that the appellants had proceeded by inquisition to condemn some part of his premises for the use and purpose of the town, and that they had, by virtue of such condemnation, entered upon and taken possession of the land so condemned, and were then engaged in excavating, digging up and removing the soil of such land; and that the business of the appellee, being that of a coal dealer, having a coal yard upon the premises interfered with, would be seriously impaired, if not destroyed, by the acts of the appellants. It was also alleged that the proceedings of the appellants, in condemning and taking possession of the appellee's land, were wholly without warrant or authority of law.

The injunction was granted, and the appellants afterwards put in their answer, and moved to dissolve.

The answer admits all the material allegations of the bill except the want of authority for the proccedings on the part of the corporation in condemning and taking the appellee's...