Horn v. City of Baltimore

• Decision Date: 25 February 1869
• Citation: 30 Md. 218
• Parties: BENJAMIN HORN v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

30 Md. 218

BENJAMIN HORN v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

February 25, 1869

APPEAL from the Superior Court of Baltimore City.

This was an action brought against the appellees, by the appellant to recover for damages done to a certain lot of ground belonging to him, by reason of the grading of North avenue.

Exception: The plaintiff to support the issue on his part, offered in evidence the transcript of the record in the case of The Mayor and City Council of Baltimore, et al vs. Porter, decided by this Court 9th of April, 1862 and it was agreed for the purposes of this appeal that either party might use and refer to any part of the record, and to any of the papers proved therein as if the same had been regularly proved in this case. He then offered evidence to show the nature, character and extent of the injury done to his property. To the admissibility of this evidence, the defendants objected on the ground that even if it were true it did not create any right of action against them; that the city could not be made responsible in any form of action to the plaintiff for the injury that might have been done to his property by the grading of North avenue. The Court (MARTIN, J.) sustained the defendants' objection and decided that the evidence was inadmissible, and ordered a judgment of non pros, to be entered. To this ruling and opinion of the Court, the plaintiff excepted and the verdict and judgment being against him he appealed.

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

William F. Frick, for the appellant:

The principles announced in the various cases in this Court, in which the city has been held not bound by the unauthorized acts of its officers, though done colore officii, &c., do not apply to this case. In those, the attempt was made to hold the city for the contracts of its officers, made beyond the scope of their authority; and all the decisions proceed upon the ground, that all parties dealing with the city's officers, do so at their peril, and are bound to know the precise scope of their authority, and whether it is rightfully exercised, &c. Mayor and C. C. of Balt. vs. Eschbach, 18 Md., 276; Mayor and C. C. of Balt. vs. Reynold, 20 Md., 1.

A different set of principles apply where the claim is not founded on contract, but on nonfeasance or misfeasance. The injured party is in no default in the latter as in the former case. A municipal corporation may be held for a tort; and as the corporation is an entity which cannot of itself be guilty of a misfeasance, its responsibility, in such case, must necessarily grow out of the tortious act of its officers or agents. The sensible rule is this, if the wrongful act be committed by a city officer either colore officii, that is, by the general or special nature and functions of his office, or by some express city enactment, competent authority to act in the matter, wherein the wrong is done, and especially if he be so acting with an honest intention to benefit the public, the city and not the officer should be responsible for the damage done. Angell & Ames on Corporations, page 250 sec. 10; Edition of 1861, page 308, sec. 311.

In this case the city commissioner who was clothed with the authority and charged with the office of grading the city streets, on certain application of property holders, acted honestly for the public good, and in strict compliance with existing ordinances, in the belief that his proceedings were lawful, and with no means of knowing otherwise, until the Courts, after a long and doubtful controversy, pronounced them to be otherwise. His proceedings were bona fide in pursuance of a general authority over the subject matter. The case comes fully within the principle of the decision of C.J. SHAW, in Thayer vs. Boston, 19 Pick., 511.

But whether the plaintiff's cause of action be regarded as growing out of a misfeance of the city commissioner, or the nonfeasance of the city, in its corporate capacity, it would seem to be clear, that the ordinance of December 9th, 1858, ratifying the proceedings of the city commissioner, in grading the avenue, established the liability of the corporation itself.

The act of ratification in this case could not give validity to the tax which the city sought to collect: for the tax-payer had a right to require that the proceedings should be perfectly regular from the beginning. It was too late, as to him, to cure the fatal defect which invalidated the tax. But the act of ratification, which did not bind the tax-payer, bound the city. It committed the corporation to an adoption of and responsibility for the entire proceedings of the city commissioner.

Robert D. Morrison and William Henry Norris, for the appellee:

The declaration avers that the appellee "in the exercise of a pretended corporate power and authority to grade said avenue by its public officers and agents, but without any such authority, and in violation of the rights of the plaintiff," caused by embankment the injury to plaintiff's lot. In English practice this declaration would have been met by a demurrer, a municipal corporation not being liable for contracts or torts when connected with matters outside of chartered powers. But in this State, the objection can be taken to the admissibility...