Mayor & City Council of Baltimore v. Clunet

• Citation: 23 Md. 449
• Parties: THE MAYOR AND CITY COUNCIL OF BALTIMORE v. VICTOR CLUNET, Next Friend of C. CLUNET and others, SAMUEL H. B. MERRYMAN and others.
• Decision Date: 12 July 1865
• Court: Maryland Court of Appeals

23 Md. 449

THE MAYOR AND CITY COUNCIL OF BALTIMORE v. VICTOR CLUNET, Next Friend of C. CLUNET and others, SAMUEL H. B. MERRYMAN and others.

Court of Appeals of Maryland.

July 12, 1865

APPEAL from the Circuit Court of Baltimore city.

The bill of complaint of the appellees, filed on the 6th day of February 1865, alleged, that by the Act of 1838, ch. 226 power was conferred upon the Mayor and City Council of Baltimore to provide for laying out, opening, extending widening, straightening and closing up, in whole or in part any street, lane, square, alley or alleys, within the bounds of the city, which, in their opinion, the public convenience might require; and the Mayor and City Council of Baltimore seeking to provide for the exercise of such power, passed an Ordinance, entitled, " An Ordinance to provide for exercising certain powers vested in this corporation, in relation to streets in the city of Baltimore," which was approved June 5th, 1858, authorizing the appointment of three Commissioners to act in effecting the purposes of said Ordinance, and in the taking of property, and fixing of assessments for benefits, as provided by the Ordinance, and that by an Ordinance approved February 28th, 1861, the powers of the said Commissioners were vested in the three Judges of the Appeal Tax Court; that the Mayor and City Council of Baltimore afterwards passed an Ordinance approved on the 5th day of May 1864, entitled, " An Ordinance to open a street in continuation of Holliday street, from Baltimore street to Second street," by the first section whereof, the Judges of the Appeal Tax Court were authorized and required to open a street in continuation of Holliday street, from Baltimore street to Second street, the lines of which proposed street are specifically mentioned in said first section; that by the second section, the Judges of the Appeal Tax Court are required to proceed in all respects in accordance with the provisions of said Ordinance of 1858, except in so far as otherwise provided by the said Ordinance of 1861, and by the fifth section of said Ordinance of 1864, and that the Judges of the Appeal Tax Court have proceeded to carry out the provisions of said Ordinance by assessing or assuming to assess the value of the property to be taken and appropriated for said object, and the necessary expenditures, and by imposing the amounts of assessments for benefits, which, it is pretended, will accrue to the complainants and others, who may be the owners of property upon or near the line of the proposed street, and that they have sold or attempted to sell the bricks and other materials in the improvements of your orators, Neal and the Siscos, which have been condemned as aforesaid.

The bill further states, that the complainants, the Clunets and Merryman and wife, are the owners of a lot on the south side of Baltimore street, adjoining the property of the Siscos, and fronting sixteen feet on Baltimore street, with a depth of one hundred and eighty feet, and that the said lot has been assessed, for supposed benefits, in the large sum of $6,300, and that the passage of the said Ordinance, and all the proceedings had by virtue of its provisions, were wholly against the wish and without the concurrence of said Clunets and said Merryman and wife, and that the lot will not be benefited at all, or, at any rate, not at all in proportion to the amount of benefits assessed upon it. That the complainant, Neal, is the owner of a lot on the south side of Baltimore street, with a front of twenty-five feet, and a depth of one hundred and eighty-two feet, and immediately opposite the present line of Holliday street, held under a renewable lease for ninety-nine years, and that for many years past he has occupied the property in his business, as a wholesale and retail dry-goods merchant, and has, by means of the very advantageous location of his property upon and opposite public thoroughfares, succeeded in securing an extensive and remunerative trade, and that there stands upon the property a large three-story warehouse, which said Neal has lately repaired at great expense. That the Siscos are also the owners of a valuable lot of ground on the south side of Baltimore street, of the same dimensions as that of said Neal, and adjoining the same on the east, which they acquired as the widow and heirs-at-law of ____ Sisco, deceased, and that for many years before his death, said ____ Sisco occupied the premises in conducting the business of the manufacture and sale of fringes, & c., and that since his death, his widow and children have there continued the same business, so that the property has become well known as a position for such trade, and that the Siscos have erected, at very great expense, a three-story warehouse upon the said lot of ground.

The bill further states, that the Judges of the Appeal Tax Court, in the exercise of their pretended powers under the Ordinance of 1864, have condemned, or assumed to condemn the whole of the property of Neal and the Siscos, allowing Neal the sum of $17,287.50, and the Siscos the sum of $47,631.25, as damages for the taking of the same, but allowing no compensation whatever, for the ruinous losses to be inflicted upon them in the destruction of their business, which will result from their being deprived of the good will of their said properties; and that the ordinance was passed, and such condemnation had against their will, and in spite of their remonstrance and protest. It is further alleged, that by the 7th section of the Ordinance of 1858, governing the action of the Judges of the Appeal Tax Court in executing the Ordinance of 1864, it is provided, that in every case in which it shall be necessary to effect the object proposed, that part only of a house and lot, or of a lot, shall be taken, used or destroyed, and the owner shall claim compensation for the whole, the Commissioners shall ascertain its full value, as if it were necessary to take the whole lot and improvements for such proposed object, and that the whole amount of such valuation, when finally determined upon, shall be paid or tendered to the owners, or vested in city stocks, for their use, before any part shall be destroyed, removed or used, and that the Commissioners may, after having given the prescribed notice, sell at public auction the materials of any house, which it may be necessary to remove in whole or part, and the residue of any lot of which a part shall be taken and used; that the Judges of the Appeal Tax Court have condemned, not only such lots and improvements as are situate upon the proposed bed of the street, but also improvements belonging to various parties, and a large quantity of ground belonging to the German Reformed Church and other parties, not necessary to effect the object proposed, and not to be used as a part of the bed of the street to be opened in pursuance of the Ordinance, and have assumed to sell the same, and thus render the Clunets, and others, still further responsible, and the bill insists, that such provisions of the ordinance are unwarranted by the Code, and repugnant to the fair and legitimate exercise of the power to take the property of the citizen for public uses, and constitute an evasive and unconstitutional exercise of the power which is, and of right should be, fatal to the said Ordinance of 1864, and to all proceedings thereunder.

The bill further states, that by the 4th section of the Ordinance of 1864, it was provided, that in the settlement with W. W. McClellan or Catherine M. Raborg, for any damages to be awarded him or her for the property condemned under the provisions of the ordinance, there should be first deducted the amount of two orders upon the Collector or Register of the city, one in favor of A. Hoen & Co., and the other in favor of the proprietors of the Holiday Street Theatre, (which were received in payment of the assessment upon those parties under the provisions of Ordinance No. 59, approved October 21st, 1858,) and of interest upon the same, or the same should be credited upon any assessment levied upon them under the provisions of the Ordinance of 1864, and that the 5th section of the Ordinance provided, that the same should not take effect until the said McClellan and Raborg, or their representatives, shall have given their written assent to the provisions of such 4th section; and the bill charges, that the said Ordinance was an attempt on the part of the appellant, to combine in an Ordinance professing to provide for the exercise of the right of eminent domain in the condemnation of property belonging to some of the complainants, and of the right of taxation in the assessment of supposed benefits upon the property of others of the complainants, the settlement of claims and disputes with which the complainants had no connection whatever, and which, in no manner related to the subject or object of the Ordinance, and also to render its existence and force dependent upon the assent of parties, who, like the complainants, were the owners of property within reach of condemnation and assessment, the rights and interests of your orators being thus made to rest upon the option of said other parties; and that it is insisted, that the right to take the property of the citizen for public use, is a delicate power, to be exercised only with the utmost fairness, and only in cases where its exercise may be demanded by the public convenience, and that the said Ordinance thus departing from the single purpose of taking property for a recognized and pressing public use, is an invalid assumption of power, and void.

The bill then states, that the Ordinance of 1858, modified by that of 1861, provides by its 9th section for an appeal from the Commissioners or Judges of the Appeal Tax Co...