Kinlein v. City of Baltimore

• Decision Date: 13 November 1912
• Parties: KINLEIN et al. v. MAYOR AND CITY COUNCIL OF CITY OF BALTIMORE et al.
• Court: Maryland Court of Appeals

85 A. 679

118 Md. 576

KINLEIN et al. v. MAYOR AND CITY COUNCIL OF CITY OF BALTIMORE et al.

Court of Appeals of Maryland

November 13, 1912

Appeal from Baltimore Court of Common Pleas; John J. Doblen, Judge.

Petition by Julius A. Kinlein and others copartners, trading as J. A Kinlein & Company, against the Mayor and City Council of the city of Baltimore and others. From a judgment dismissing the petition, petitioners appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS, and STOCKBRIDGE, JJ.

George Washington Williams and John H. Richardson, both of Baltimore, for appellants. Robert F. Leach, Jr., Asst. City Sol., of Baltimore, for appellees.

BURKE J.

On the 20th day of June, 1912, the appellants on this record filed in the court of common pleas a petition praying that a writ of mandamus be issued directed to the mayor and city council of Baltimore, and the board of estimates of the city commanding them to make a special levy upon the taxable property of Baltimore City in a sufficient amount to pay a certain judgment mentioned in the petition. The mayor and city council answered the petition, and assigned various reasons why the writ should not be issued. The appellants demurred to the entire answer, and also to each separate paragraph thereof. The court overruled the demurrer to the whole answer, and also overruled the demurrer to the fifth sixth, and seventh paragraphs; but sustained it as to the eighth and ninth paragraphs. The cause was then submitted to the court upon the admissions of the pleadings, and on the 17th day of September, 1912, the court dismissed the petition and entered a judgment for the respondents for costs. The appeal before us was taken by the petitioners from that judgment.

The appellants, Julius A. Kinlein, Joseph J. Kinlein, and Julius Stengel, copartners, trading as J. A. Kinlein & Co., recovered a judgment in the court of common pleas against the mayor and city council of Baltimore on the 2d day of December, 1911, for the sum of $950. On the date the petition was filed the judgment, interest, and costs amounted to $1,024.20. It is alleged in the petition that the mayor and city council had not paid this judgment, or any part thereof, although it had been repeatedly requested to do so, and that it showed no disposition whatever to pay the judgment; that on several occasions on which requests had been made that it pay the judgment "it was asserted, through the office of the city solicitor, that there were no funds out of which this judgment, interest, and costs could be paid." The answer of the respondents admitted all the allegations of the petition, except the one that the mayor and city council "shows no disposition whatever to liquidate said judgment." This allegation is directly denied. There is therefore upon the pleadings no evidence of a refusal on the part of the city to pay the judgment, nor are there any circumstances which clearly evince an intention on its part not to pay. On the contrary, the answer proceeded to give a full explanation of its failure to pay the petitioners' claim. After setting out several reasons why the claim had not been paid, the seventh paragraph of the answer contains the following averments: "(7) That further answering said petition, your respondent shows that the judgment herein referred to was entered up subsequent to the making up of the ordinance of estimates by said board of estimates and the introduction of the same for passage into the city council. That in fact said ordinance of estimates was approved after its passage by the council only two days after the date of the entering of the judgment herein referred to. And your respondent avers that said ordinance of estimates fixed and established its tax rate for the year 1912; that after the passage and approval of said ordinance your respondent was and is without power or authority to enlarge or increase any of the appropriations therein made to provide for the discharge and satisfaction of the judgment referred to herein, and the amounts in said ordinance appropriated to the law department and board of estimates are, as already stated, entirely inadequate and insufficient to discharge the judgment referred to, without greatly hampering and embarrassing it in the prosecution of its usual duties and the discharge of its financial obligations."

Under section 36, art. 4, of the Code of Public Local Laws, title "City of Baltimore," subtitle "Charter," as amended by the Acts of 1904, c. 677, it...