Hazlehurst v. City of Baltimore

• Decision Date: 20 December 1872
• Citation: 37 Md. 199
• Parties: HENRY R. HAZLEHURST, and Others v. THE MAYOR AND CITY COUNCIL OF BALTIMORE, and Others.
• Court: Maryland Court of Appeals

37 Md. 199

HENRY R. HAZLEHURST, and Others v. THE MAYOR AND CITY COUNCIL OF BALTIMORE, and Others.

Court of Appeals of Maryland

December 20, 1872

Appeal from the Circuit Court for Baltimore City.

The facts are given in the opinion of the court.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, JJ.

E J. D. Cross and George H. Williams, for the appellants.

No single issue involved in Page's case exists in this, nor any contradiction of what was said in that case is intended in this; in fact, this assumes the absolute correctness of what was therein decided; and while wharfage rights are the subject of condemnation here, they are not condemned, but are continued intact, with practically a cession of fourteen feet to them out of sixty feet, which the State has declared should be and remain, as a whole, sixty feet forever.

The title to the soil covered by navigable water was in the State, and as a free gift from it, the riparian proprietors were permitted to fill out and wharf, and have an "estate upon condition," viz., that a highway of sixty feet should there exist for the public forever. The made land, wharfage, and the sixty foot highway are all to co-exist, and the sixty foot highway, to its full width, is to exist before any estate or wharfage can arise; and embanking out upon the State's land binds to the performance of this condition precedent.

The only estate the riparian owners can have is a right to moor vessels to the edge of the wharf, and to receive fees for such use, and for the loading and unloading cargoes. Should any space for such purposes be required, then it should have been taken, then sixty feet be laid off, and then they might have erected warehouses on the residue. As it now is, what with the warehouses on the one side and those wharves as so used on the other, that which the State of Maryland declared should be sixty feet forever, has been reduced to only twenty-four feet, to which twenty feet is now to be given graciously out of their own, to a long suffering good-natured public, that has endorsed it--the gift being at the expense of adjoining proprietors, enormously assessed to pay for illegal encroachments. 1 Greenl. Cruise, Tit. xiii ch. 2, secs. 1, 4; Charles River Bridge Case, 11 Pet. 546.

Embanking out binds to the performance of all conditions. Atty Gen. v. Christ's Hospital, 3 Bro. Ch. 165; Messenger v. Andrew, 4 Russ. 478; 4 Kent, 125; Spofford v. Manning, 6 Paige, 288; 1 Greenl. Cruise Title xiii, ch. 2, secs. 15, 16; Acts of 1796, ch. 45; 1801, ch. 92; 1805, ch. 84.

Should the existence of a sixty foot highway make nugatory the wharfage right, it must yield to the highway. Commonw. v. R. R. Co. 27 Pa. St. 355.

The highway once having been shown to exist by the dedication as such by the State, any alteration or distinction of the rights of the public can only be affected by the power which created them. No adverse use can be claimed or set up, and no limitations can avail against the State. Washb. on Easements, 156; Commonw. v. R. R. Co. 27 Pa. St. 339, 358; Commonw. v. Alburger, 1 Wharton, 469, 486, 487.

No adversary possession avails against the State. Hall v. Gittings, 2 H. & J. 112; Angell on Limitations, sec. 37.

Light street having been dedicated in perpetuity by the State as a highway sixty feet wide, the subsequent delegation by the Legislature to the City of Baltimore of the power to regulate streets, etc., within the city limits, was made with reference to and in contemplation of the former Acts. That the widening was intended to be twenty feet on the easternmost side of the street, is the natural and legal interpretation of the Ordinance of 1869. Foster's Case, 11 Coke, 63; Sedgwick on Const. & Stat. 124; Dwarris on Stat, 117; Williams v. Pritchard, 4 Term, 2, 4; Dugan v. Gittings, 3 Gill, 138.

The municipal authorities, as far back as Ord. 1826, ch. 12, sec. 3, enacted, "that it shall not be lawful for any person to encroach further on Pratt or Light street wharf, with any article landed thereon, than eighteen feet, measuring from the inner edge of the logs or stone of which the said wharves are formed, nor shall any article not subject to inspection, be permitted to remain on said wharf longer than forty-eight hours, under a penalty of ten dollars for each and every offence," etc. This Ordinance excludes the wharf proprietors from sixteen feet of the twenty feet; for which damages are now claimed, and only contemplates a right of landing on the sixteen feet mentioned. This ordinance is in force today, and is embodied in the City Code, Art. 22, sec. 42.

The provisions of Ord. 26, sec. 17, 1866, City Code, 838, are mandatory, and by occupying more than ninety days, the action of the Commissioners is null and void, the assessments imposed by them are of no effect, and cannot act as liens on the property of the appellants, which can be enforced by sale.

In all cases of courts of inferior jurisdiction, boards, commissions, bodies with delegated powers conferred by statute, where the manner of obtaining jurisdiction is prescribed by statute, and in all cases where one may be divested of his estate by proceedings under statute, the mode of proceeding is mandatory, and must be strictly complied with, or-the action is null and void.

Where, in the exercise of its discretion, the city has prescribed ninety days, the power of commissioners to occupy longer time is taken away, and they are prohibited from doing anything further until some other thing is done, to wit: "Report to the Mayor and City Council the causes of such inability, etc.; and suspend all further proceedings until otherwise directed." Any other construction would place the municipal authorities above the laws and above their own laws.

It cannot be said that the assessments made thus are only irregularities, for an assessment made at a time when a board has no right to make the same, and when it has been ordered to stop, is a nullity. It cannot impose a lien on, or divest title of, real estate.

The general rule as to whether statutes are "directory" or "mandatory," may be stated from the authorities, that where the words are affirmative merely, and relate to the manner power is to be exercised, and not to the limits to power; such words may be, and often have been, construed directory merely, but negative words, which go to the power and jurisdiction itself, and which prevent and forbid the exercise of a power at any other time, or in any other manner, can only be construed as mandatory. Bladen v. Philadelphia, 60 Pa. St. 464; State ex rel. Webster v. Commissioners of Balt. Co. 29 Md. 516, 523; School Commrs. of Allegany County v. County Commrs. 20 Md. 449; Ellicott v. Levy Court, 1 H. & J. 360; Kerr v. State, 3 H. & J. 560; State v. Merryman, 7 H. & J. 79; George Douglass, 46 N.Y. 42, 44; Staylor v. Hallings, 7 Ind. 144, 147; Dawson v. Gill, 1 East, 62, 70; Pond v. Myers, 3 Mass. 230, 231; Thames Mfg. Co. v. Lathrop, 7 Conn. 555.

Chas. J. M. Gwinn for Johns Hopkins, one of the appellants.

The Mayor and City Council derive their sole authority to enact the Ord. of 1869 from the provision of the Code of Pub. Local Laws, Art. 4, sec. 837. The Commissioners for Opening Streets had in their turn no other power to act in the premises, than was conferred by the particular Ordinance under which their proceedings were conducted.

In a word, the Mayor and City Council are not authorized to do any act which the State, acting in the due exercise of its legislative power, has not authorized it to undertake. And the Commissioners for Opening Streets have no power to perform any act which they are not, by Ordinance, specially authorized to do.

But if they depart from that power which the law has vested in them, and assume a power over property not given them by law, then a court of equity must treat them, whether they be a corporation or individuals, as persons dealing with property without legal authority. 2 Joyce on Injunctions, 1023; Frewin v. Lewis, 4 Myl. & Craig, 249, 254, 255.

If such persons, under pretense of an authority, which the law does give them to a certain extent, go beyond the line of their authority, and infringe or violate the rights of others, they become like all other individuals, amenable to a proceeding by injunction. Frewin v. Lewis, 4 Myl. & Craig, 250.

The cases of Holland v. Baltimore, 11 Md. 197; Bouldin v. Baltimore, 15 Md. 18, and Baltimore v. Porter, 18 Md. 301, 302, rest upon these principles.

The bill shows that the Commissioners did not, in point of fact, widen that part of Light street which lies between Pratt and Lee streets, or make said widening twenty feet eastwardly from the eastern side of the said street.

The space of sixty feet, parallel to Light street, was, therefore, by the Act of 1796, amended by the Act of 1805, made a street or highway, subject to the right of the proprietors of the wharves to enjoy the benefit and advantage of the wharfage thereof. Under these Acts the proprietors of lots bounding on the water, in this particular locality, were permitted to wharf out, extend and improve, within certain limits, the whole front of their lots, and it was declared that they should be exclusively entitled to the emoluments arising from the wharfage so made.

This was no recognition of the existing rights of these proprietors to that land then covered by water, upon which the improvements were made. It was, on the contrary, a denial of such right, and an assertion that the right in the soil so covered by water, then remained in the State. For if the proprietors had any right in the soil, they would not have sought an easement from the Legislature, nor would the Legislature have undertaken to confer such easement. It was, on the...