Mayor and Council of City of Baltimore v. Ercolano
| Decision Date | 09 April 1936 |
| Docket Number | 13,14. |
| Citation | 184 A. 164,170 Md. 341 |
| Parties | MAYOR AND CITY COUNCIL OF BALTIMORE ET AL. v. ERCOLANO. MAYOR AND CITY COUNCIL OF BALTIMORE ET AL. v. KELM ET UX. |
| Court | Maryland Court of Appeals |
Appeals from Baltimore City Court; Eugene O'Dunne, Judge.
Proceedings by the Mayor and City Council of Baltimore and others constituting the Commissioners for opening streets of Baltimore City, to condemn and remove market stalls held by Elizabeth Ercolano, formerly Elizabeth Biagini, and by Gustave Adolph Kelm and wife. From judgments increasing awards of damages by the commissioners, they appeal.
Reversed without new trial in the case of Elizabeth Ercolano, and with a new trial in the case of respondents Kelm and wife.
Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.
Paul F Due, Deputy City Sol., and Hector J. Ciotti, Asst. City Sol., both of Baltimore (R. E. Lee Marshall, City Sol., of Baltimore, on the brief), for appellants.
Ogle Marbury and Lawrence W. Hecht, both of Baltimore, for appellees.
The appellees, now or recently holding licenses of stalls in Belair Market in Baltimore, appealed to the Baltimore city court from awards of one dollar for damages from condemnation and removal of each of their stalls in the widening of Ensor street to improve an approach to the Bath street viaduct across the valley of Jones Falls. The awards were increased on the appeals, and the city's appeals to this court present, principally, questions whether the appellees have rights or interests for which substantial compensation might be awarded, and, if so, what is the measure of the substantial compensation? Necessity for resorting to condemnation is not in dispute. The city has chosen to condemn, and submit for adjudication, the questions of amount of compensation.
Proceedings to condemn, authorized by an ordinance of 1930 (No. 952), were first taken in that year, but only one of a board of three commissioners for opening streets then signed the form of award or assessment to be made; one of the commissioners having declined to join because he thought the amounts awarded too large, and the other, since dead, having failed to do so for a reason now unknown. Appeals were entered by the city from those earlier awards, and rested on the docket of the court during the succeeding five years, until the city solicitor advised the commissioners that the awards were invalid, and caused entirely new proceedings to be instituted. The earlier appeals appear never to have been dismissed on the docket, and the trial court admitted the proceedings in them in evidence, and ordered them consolidated with the stall holders' appeals from the new, nominal awards. An objection to carrying on at the same time two proceedings to condemn the same property need not be dwelt upon, since there was no valid initiation of the first proceedings, and the awards reported in them are not to be given consideration on these appeals from the second awards. The trial court's action was erroneous.
The various steps required of the commissioners under sections of the City Charter, 175 to 177 (Code Pub.Loc. Laws 1930, art. 4, §§ 175 to 177), could, according to the terms of the sections as well as by general legal principles, be performed only by a majority of their number. Kirkpatrick v. Lewis, 159 Md. 68, 72, 149 A. 614. A note in the minutes of the commissioners' meetings recites that a final return had been made for the opening, widening, and grading of Ensor street, and this is cited as proof that the award signed by the one commissioner was the award of the whole board, but that meaning does not necessarily attach to the note, and in the face of the facts stated to the contrary, and testified to on behalf of the appellees here, could not be attached. The entering of the appeals from the one commissioner's action could not give it standing and effect as an award under the charter. There was no estoppel to be deduced from a putting faith in the city's entering appeals as if from a valid award. State v. Kirkley, 29 Md. 85, 109; Hagerstown v. Hagerstown Railway Co., 123 Md. 183, 193, 91 A. 170, Ann.Cas.1916B, 1267, 7 A.L.R. 1239; Timanus v. Baltimore, 128 Md. 105, 112, 96 A. 1030. The purpose of the appeals may have been to strike the awards out as invalid. And the city could lawfully abandon the first condemnation, especially as it was so initiated by an invalid award, or no award at all under the charter. Record Building & Loan Ass'n v. Safe Deposit & Trust Co., 166 Md. 348, 351, 171 A. 43; Wagner v. James A. Bealmear & Son Co., 135 Md. 690, 694, 109 A. 466.
The statute law governing licenses of stalls, Ordinance No. 283, of May 20, 1907, section 16 of article 27 of the Baltimore City Code 1927, provides that when a stall is rented or hired out by the clerk of the market, this shall be evidenced by a license from the comptroller in terms to be approved by the board of estimates of the city "for one year and no longer," which shall, with the approval of the comptroller, be transferable and renewable from year to year during the existence of the market provided the licensee shall have complied with all laws and ordinances. The license fee for use of a stall of the kind here concerned was fixed at $46, and a rent charge at $2, both payable in advance. Section 20 of article 27 of the City Code provides further that when a stall becomes vacant by failure of a tenant to renew the certificate or to pay his license or rent within thirty days after it becomes due, the stand or stall shall revert to the city. A printed form of certificate used permits occupation of the stall for one year from the first of May for the fee and rent stated, prohibits subrenting, and repeats the provision of the ordinance for reversion of the stall to the city if the license fee or rent is not paid within thirty days. Receipt of the money is usually noted on the certificate issued.
There is no evidence of customary dealing with the stalls by the city before 1900. Stalls were sold at auction in some instances, but by whom is not known to witnesses examined. Private sales by individual owners have been common, and high prices have been obtained in the past. Whatever the title of a licensee or tenant, the rights resulting, in this and other markets, have been valued highly, and availed of as investments, subject to sale or pledge, subject to execution for debts, and transmissible at death as assets of the owner's estate. And in the decisions of this court the rights have been allowed this substantial quality and effect. It is known that in one other market at least, stalls or rights in stalls were once sold by the city at high rates. Rose v. Baltimore, 51 Md. 256, 34 Am.Rep. 307; Border State Sav. Inst. v. Wilcox, 63 Md. 525; Green v. Western Nat. Bank, 86 Md. 279, 38 A. 131. Changes in recent years in the method of retailing food supplies, and perhaps other economic changes, have caused the vacating and abandonment of more than three-eighths of the stalls in Belair Market. The appellees believe the threat of condemnation has contributed to cause the vacating of the stalls affected; other witnesses are not of that belief.
Elizabeth Ercolano, licensee of a stall numbered 381, to be removed, has been a holder of eleven stalls in the same market, for investment, having purchased them all in 1921 for about $4,500, from persons who were the owners in 1900 and afterwards. Mrs. Ercolano has since sold one for $2,500, and has abandoned five others, retaining No. 381, with four others. That particular stall, however, has not been occupied, except for two months, during the past eight years and more. She paid license fees for it from 1921 to 1934, but has not paid any in 1935, for the current year, and consequently has no certificate or license for it after May 1, 1935. Lacking sufficient money for payment otherwise, she was permitted by the market master to make delayed payments on other stalls, one at a time, and has done so; but she has paid nothing on No. 381. The market master, in October, 1935, threatened to bring suit for the money, but did not bring it.
Kelm and wife, the other appellees, are holders of licenses for the year beginning May 1, 1935, the current year, on stalls numbered 233 and 235, having paid the fees for them. These stalls, too, are to be removed. They were purchased by Kelm in 1920 from a William H. Pentz, who appears as holder on the earliest existing record of title. These licensees themselves occupy the stalls as dealers.
Whatever may have been the mode of original acquisition of the stalls from the city, they have been held by the appellees on the terms defined in the ordinances and in the licenses issued. Undoubtedly, the high prices at which licenses or stalls have been sold by holders show that, in the estimates of value termination within any short time has not been contemplated. And rights acquired in stalls seem to be widely regarded as substantially those of complete ownership, subject, however, to the payment of annual fees. But this court has not been able to see that an expectation of extension beyond a given year could, consistently with the express limitations in the law, have any foundation in legal obligation on the city, or any foundation more secure than a probability based on a custom of renewal to a licensee so long as he pays. The custom could not override or enlarge the express...
To continue reading
Request your trial