Mayor and City Council of Baltimore v. Canton Co. of Baltimore

Decision Date14 June 1946
Docket Number151.
PartiesMAYOR AND CITY COUNCIL OF BALTIMORE v. CANTON CO. OF BALTIMORE.
CourtMaryland Court of Appeals

Appeal from Superior Court of Baltimore City; John T. Tucker, Judge.

Suit by the Mayor and City Council of Baltimore against the Canton Company of Baltimore to recover minor privilege charges imposed by the plaintiff on defendant's piers built into navigable waters. From a judgment in favor of defendant, the plaintiff appeals.

Judgment affirmed.

Paul R. Kach, Asst. City Sol., of Baltimore (Simon E. Sobeloff City Sol., of Baltimore, on the brief), for appellant.

J Crossan Cooper, Jr., and Hunter H. Moss, both of Baltimore (Venable, Baetjer, & Howard, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL Judge.

This is an appeal by the plaintiff from a judgment for the defendant (appellee) for costs, in a suit for certain 'minor privilege charges.'

Defendant owns two piers, each built into the navigable waters of the Patapsco in front of land which, since 1918 or earlier, has been within the Baltimore City limits. In 1922 and 1930 respectively, defendant made application for consent of the Harbor Engineer to extensions of these piers within the pierhead line. Permits for the extensions were granted by the Board of Estimates, 'subject to inspection and minor privilege charges.' The applications were in forms acceptable to the city; permits would not have been granted unless these forms had been used. The extensions were made, and the defendant has regularly paid state and city property taxes on them.

Before 1917 plaintiff did not make minor privilege charge for improvements made into the Patapsco, but it has claimed such charges from the owners of all such improvements made since 1916. The rate of the annual charge was fixed at 1/2 cent per square foot of surface area of the improvements, without regard to location, cost, use or value of the structures, and was not based upon the cost of governmental regulation. The annual charges claimed from defendant are $105.88 and $1.10 respectively, none of which have ever been paid. They amount to $2,064.66 (for the years 1923 to 1941, inclusive, and part of 1922) and $12.10 (for 1931 to 1941, inclusive). Suit was brought for these amounts on December 5, 1941. The case was tried without a jury. A clear comprehensive opinion was filed, and judgment was entered for the defendant for costs. It was stated at the argument that some owners have regularly paid the charges made, others (like defendant) have never paid them, and the claims for uncollected charges now amount to some $375,000.

Plaintiff claims the right to make charges for such improvements under sections 7, 8, 47 and 48 and other provisions of the Baltimore City Charter (1938 Edition) relating to the city's 'title' to 'land under water.' Defendant claims the right to make such improvements without paying for the right, under section 17 of Article 54 of the Code of 1939. Plaintiff argues (1) that it holds absolute title to the land in the bed of the Patapsco, and therefore has the proprietary right to charge defendant for use of that land, and (2) that it has absolute control over that land, and under section 7 'title' refers to such control, and therefore it has the power to charge defendant for the privilege of using the land.

These opposing contentions present a question of statutory construction. The legislative intent may best be found in the words of the statutes, the context and the occasion, without undue refinements or generalizations about things (such as franchise taxes) which defy generalization. Either of the opposing contentions is a possible legislative intent. Under power to regulate commerce the federal government, with no title at all, may require a riparian owner to pay for a license to use his own property. United States v. Appalachian Electric Power Co., 311 U.S. 377, 427, 428 61 S.Ct. 291, 85 L.Ed. 243. The City of Baltimore may exact payment for a franchise to use turnpike roads, owned by turnpike companies, and streets owned by individuals but used by the public as highways. Patapsco Electric Co. v. Baltimore, 110 Md. 306, 72 A. 1039. On the other hand, the Legislature, in imposing a franchise tax measured by use of streets, may exclude turnpike roads and private rights of way from the measure of the tax. Park Tax Case, 84 Md. 1, 35 A. 17, 33 L.R.A. 503; City of Baltimore v. United Rys. & Electric Co., 107 Md. 250, 68 A. 557, 14 L.R.A.,N.S., 805. A statute which granted a state-wide franchise that has not been exercised may be repealed pro tanto by one which provides that no use shall be made of the streets of a particular city without the consent of the city, 'subject to such franchise tax and regulations' as the city may prescribe. Kelly v. Consolidated Gas, Electric Light & Power Co., 153 Md. 523, 138 A. 487, 490. But the lawful exercise of a franchise cannot be prevented by the City of Baltimore by refusing a permit. State ex rel. v. Latrobe, 81 Md. 222, 232-234, 31 A. 788; Hooper v. Baltimore City Passenger Ry. Co., 85 Md. 509, 514, 37 A. 359, 38 L.R.A. 509. In each instance (in the absence of constitutional questions) the legislative intent is controlling.

Plaintiff's contentions are based on new provisions of the 'New Charter' of 1898, Acts of 1898, ch. 123. To construe these new provisions the powers of the city before 1898 should be considered.

The Act of 1745, ch. 9, provided: 'That all Improvements of what Kind soever, either Wharfs, Houses, or other Buildings, that have, or shall be made out of the Water, or whether it usually flows, shall as an Encouragement to such Improvers, be for ever deemed the Right, Title and Inheritance of such Improver or Improvers, their Heirs and Assigns for ever.' This provision was repealed by adoption of the Code of 1860. By the Act of 1862, ch. 129, sections 46, 47 and 48 of Article 54 of the Code of 1939 were enacted. Section 47 provides: 'The proprietor of land bounding on any of the navigable waters of this State shall be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements and other accretions as above provided for shall pass to the successive owners of the land to which they are attached, as incident to their respective estates. But no such improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made.'

The Act of 1783, ch. 24, 'An Act appointing wardens for the port of Baltimore-town, in Baltimore county,' recited that 'it is of importance of the state, that proper persons should be appointed to preserve the navigation of the bason and harbour of Baltimoretown, in Baltimore county', and provided in section 8: 'That no wharf or wharves shall be run out, made, altered, enlarged, or extended, * * *, so as to divert the course of the said channel, obstruct the harbour or bason, or to the injury of the same; and that no person or persons shall make, alter, or extend, a wharf or wharves, * * *, without laying before the said wardens a plan of his or their intended wharf or wharves, and without consent first obtained, under the seal of the board, to carry the same into effect; * * *'.

The Act of 1784, ch. 39, required that a correct survey of the town be made, and provided that the lots and streets, when so laid out anew, 'and the ground and other improvements made and extended out of the water,' when surveyed and laid off according to the act, should be part of the town, as if originally included therein. 'Saving to all persons whatsoever their right of property in any of the said ground so made and extended as aforesaid, and in the lots or land from which such ground may be made and extended, and the right to make and extend ground as aforesaid, and the right to the water or land covered by water, which rights are not meant or intended in any manner to be interfered with, determined on, or affected by, this act.' (Italics supplied).

The original charter of the City of Baltimore (Acts of 1796, ch. 67) in section 9 empowered the city to pass all laws and ordinances necessary 'to provide for the preservation of the navigation of the bason, and Patapsco River within the limits of the City of Baltimore, and four miles thereof,' and in section 10 transferred to the city 'all powers and authorities' of the port wardens. The above provisions of section 8 of the Act of 1783 were re-enacted practically verbatim in the Codes of 1860 and 1888 and the New Charter of 1898, except that instead of the port wardens the mayor and city council was mentioned in the Code of 1860, and the Harbor Board in the New Charter. Code of 1860, sec. 267; Code of 1888, sec. 351; Act of 1898, sec. 463. By the Act of 1908, ch. 170, p. 611, the Harbor Engineer was substituted for the Harbor Board and verbal changes were made. Charter 1938, sec. 558. The above provision of section 10 of the original charter was retained practically verbatim in the Code of 1860 and was enlarged in geographical scope in 1884 and again in 1908. Code of 1960, sec. 703; Code of 1888, sec. 343; Act of 1898, sec. 6; Charter 1938, sec. 6(8).

Originally much of the shore line of the Baltimore Harbor was concave. Improvements by making land out of the water, laying out streets and building wharves and piers, to a considerable extent made rectangular harbor lines out of a curving shore. Both the natural and the improved state of the harbor early gave rise to (1) conflicting claims of riparian owners to improvements and to the right to make improvements and (2) need for governmental regulation (a) to preserve navigation and (b) to ration space on concave...

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