Hanlon v. Levin

• Decision Date: 22 May 1935
• Docket Number: 37,38.
• Citation: 179 A. 286,168 Md. 674
• Parties: HANLON ET AL. v. LEVIN. BALTIMORE BROADCASTING CORPORATION v. LEVIN.
• Court: Maryland Court of Appeals

179 A. 286

168 Md. 674

HANLON ET AL. v. LEVIN.

BALTIMORE BROADCASTING CORPORATION v. LEVIN.

Nos. 37, 38.

Court of Appeals of Maryland

May 22, 1935

Appeals from Circuit Court of Baltimore City; Joseph N. Ulman, Judge.

Suits by Albert A. Levin against Edward Hanlon and others, in their official capacities and comprising and constituting the Board of Park Commissioners of Baltimore City, and against the Baltimore Broadcasting Corporation. From decrees overruling demurrers to the bill of complaint, defendants appeal.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

R. E Lee Marshall and Frank Driscoll, both of Baltimore, for appellant Hanlon and others.

J Purdon Wright and W. Frank Every, both of Baltimore, for appellant Baltimore Broadcasting Corporation.

Albert A. Levin and Leonard Weinberg, both of Baltimore, for appellee.

JOHNSON Judge.

Albert A. Levin, a resident and taxpayer of Baltimore City, filed a bill of complaint against the members of the board of park commissioners of said city and the Baltimore Broadcasting Corporation for the purpose of having declared null and void a certain rental agreement previously executed between the said defendants, and to have them permanently restrained from acting under said agreement in erecting, constructing and maintaining a certain broadcast tower and building in Druid Hill Park, one of the public parks of Baltimore City, purchased by the city in 1860, and previously dedicated to the public use. A copy of the lease between the two defendants was filed as an exhibit and made a part of the bill of complaint, from a consideration of which it appears that a parcel of land 75 feet by 75 feet in Druid Hill Park was leased by the park board to the Broadcasting Corporation, upon which the latter was to erect a broadcast tower and building which was to be used in connection with Radio Station WCBM. The lease was for a term of ten years, with renewal provisions contained therein, and its consideration was stated as follows: "That the Board of Park Commissioners and the Mayor of the City of Baltimore shall have free time at hours appropriate to the purpose to be served, for broadcasting information of a civic, educational and non-political nature over Radio Station WCBM."

Separate demurrers were filed by each of the defendants to the bill of complaint, and from decrees of the chancellor overruling such demurrers, both defendants have appealed. In determining the correctness of these decrees, recourse must be had to the Baltimore City Charter, since by the demurrers the lease and its execution and all allegations of the bill of complaint which are relevant and well pleaded are admitted. Miller's Equity, page 171, par. 133; Miller v. Baltimore County Marble Co., 52 Md. 642, 644; Textor v. Shipley, 77 Md. 473, 474, 26 A. 1019, 28 A. 1060; American-Stewart Distillery v. Distilling Co. (Md.) 177 A. 473, 474.

However, it must not be overlooked that municipal corporations have only such powers as have been conferred upon them by the Legislature, and these are to be strictly construed. To doubt such power in a given case is to deny its existence. Rushe v. Hyattsville, 116 Md. 122, 81 A. 278, Ann. Cas. 1913D, 73; Heiskell v. Baltimore, 65 Md. 125, 4 A. 116, 57 Am. Rep. 308; Mayor, etc., of Baltimore v. Gill, 31 Md. 375; St. Mary's Indust. School v. Brown, 45 Md. 310.

It is worthy of notice that the contract in question, if breached by the Broadcasting Corporation, could not be specifically enforced at the suit of the park board, since its consideration is too vague, uncertain, and indefinite. And it is at least open to serious doubt whether or not the same reasons would not also prevent recovery in a suit at law. Warren Mfg. Co. v. Baltimore, 119 Md. 188, 86 A. 502; Lucas v. Long, 125 Md. 420, 94 A. 12; Rogers v. Dorrance, 140 Md. 419, 117 A. 564, 32 A. L. R. 573; King v. Kaiser, 126 Md. 213, 94 A. 780; Thompson v. Thomas & Thompson Co., 132 Md. 483, 104 A. 49; Hearn v. Ruark, 148 Md. 354, 129 A. 366; Powell v. Moody, 153 Md. 62, 137 A. 477.

The mayor and city council of Baltimore is given power "to establish, maintain, control and regulate parks or squares in the City of Baltimore for the recreation and benefit of its citizens." Baltimore City Charter, 1927 (see Code Pub Loc. Laws 1930, art. 4) § 6 (16). By section 31 of the Charter, the executive power of the city is declared to be vested in "the Mayor, the departments, sub-departments, municipal officers not embraced in a department" therein provided for, and under paragraph 5, of said section, is listed the department of parks and squares as being composed of "Board of Park Commissioners." It may be inferred from the language used that such parks are vested in the city and department of parks and squares, yet the latter is but an agency of the city, with "charge and control" of the parks so owned by the city. By section 1 of the Charter, the city is empowered to purchase and hold real estate, but under section 7 thereof, it is declared that the title of the city in and to its water front, wharf property, land under water, public landings, wharves and docks, highways, avenues, streets and lanes, alleys and parks is inalienable. Under section 8, the city is permitted to grant, subject to certain limitations and conditions contained in the charter, specific franchises or rights in or relating to any of the public "property or places" mentioned in section 7, but such grants must be in compliance with all requirements of the charter and the terms and conditions thereof must first have been authorized and set forth in an ordinance passed by the city. By section 10 of the Charter, it is provided that before any grant of a franchise or the right to use any public property shall be given, an advertisement of the proposed action must be published in a daily newspaper, and by section 37, such franchise to use public property mentioned in section 7 (which specifically enumerates parks) must be embodied in the form of an ordinance containing all the terms and conditions required by the provisions of the charter, which ordinance, after its introduction and first reading in the city council, must be referred to the board of estimates who are charged with the duty of making diligent inquiry as to the terms and conditions of the ordinance, and may increase the compensation provided for therein. Assuming the aforegoing provisions respecting the leasing of property to have been complied with by the city, even then it cannot rent public property, unless it be no longer needed for public use. Baltimore City Charter, § 13. So even if the property in question were no longer needed for public use, the mayor and city council of Baltimore could not, under the provisions above quoted, have validly entered into the lease in question without giving the notice prescribed in section 37 and without having resorted to the inquiry contemplated thereby, and this seems to apply to a renewal lease. Section 12 of the Charter. But, notwithstanding the board of park commissioners is a subdepartment of the city, the appointment of whose members is provided for by the Charter (section 25), it is contended that this agency has, with reference to the execution of leases of park property, broader powers than the city, and the argument is based upon the language of section 91 of the Charter, plus certain expressions used by this Court in the Williams Cases reported in 124 Md. 502, 92 A. 1066 and 128 Md. 140, 97 A. 140. The section of the charter reads as follows: "The Board of Park Commissioners shall have charge and control of all public parks, squares, boulevards leading to parks, springs and monuments belonging to and controlled by or in the custody of the...