Mayor & City Council of Baltimore v. Bouldin

• Citation: 23 Md. 328
• Parties: THE MAYOR & CITY COUNCIL OF BALTIMORE, and others, v. AUGUSTUS BOULDIN, and others.
• Decision Date: 11 July 1865
• Court: Court of Appeals of Maryland

23 Md. 328

THE MAYOR & CITY COUNCIL OF BALTIMORE, and others, v. AUGUSTUS BOULDIN, and others.

Court of Appeals of Maryland.

July 11, 1865

[Copyrighted Material Omitted]

APPEAL from the Superior Court of Baltimore city.

This cause was heretofore before this Court, on an appeal from an order dissolving an injunction, having been heard below on a motion to dissolve, upon bill, answer and proof taken under the Act of 1835, ch. 380. The decision of the case, as then presented, will be found reported in 15 Md. Rep., 18. The Court of Appeals, then, on the ground of the insufficiency of the answer to authorize the passage of the order appealed from, reversed the order, continued the injunction, and remanded the cause. On the present appeal the whole proceedings and evidence are before the Court.

The bill of complaint filed in the Circuit Court of Baltimore city, on the 16th of July 1857, alleged: That Augustus Bouldin, Harriet Bouldin, Henry Bouldin and Jane A. Bouldin were the owners of certain lots of ground binding and fronting on Belair Road, or Belair Avenue, in the city of Baltimore; that said property or lots of ground were advertised for sale, and would be sold, by William Fuller Auditor, assuming to act under the authority of the Mayor and City Council of Baltimore; that said Belair Avenue was never regularly laid out or formally condemned as a public street, in pursuance of any law or ordinance of the State of Maryland, or of the city of Baltimore, and that said complainants never assented that the several regulations prescribed by ordinance relative to streets, should be construed to extend to said Belair Avenue; that A. J. Bouldin, for himself and for a certain Owen Bouldin, and the complainant, Harriet Bouldin, filed with the City Commissioner of Baltimore city a written protest, dated August 8th, 1853, against the grading and paving of said Belair Avenue; that the said A. J. Bouldin, in his lifetime, and all of said complainants, at all times opposed the extending to said Belair Avenue the several regulations prescribed by ordinance, relative to streets which have been formally and regularly condemned as public streets; that on the 15th of June 1853, an application was made, in writing, to the City Commissioner, to grade and pave Belair Avenue, from Point Lane to North Avenue, and the grade of said Avenue established from Oliver street to the North Avenue, and the City Commissioner, 6th July 1853, postponed the determination of said application indefinitely, and nothing more was done in the matter of said application thereafter.

The bill further alleges, that another application was made, in writing, to grade and pave all of that part of Belair Avenue between Point Lane and North Avenue, and to establish the grade of said Avenue from Oliver street to North Avenue; and that neither of the said applications are signed by the proprietors or owners of the majority of the feet of ground binding and fronting on said Belair Avenue, between Point Lane and North Avenue; that the letter or power of attorney from Joseph T. Mears to Benjamin A. Lavender, constituting Lavender the attorney to sign a petition for the grading and paving of Belair Avenue, and which is dated July 1st, 1853, and is attached to the application of July 25th, 1853, does not authorize Lavender to sign a petition to establish the grade of Belair Avenue from Oliver street to North Avenue.

The bill further alleges, that the City Commissioner, upon the last application received by him, and dated the 25th of July, A. D., 1853, established a grade for said Avenue; that said grade was not established by said City Commissioner in accordance with the laws of the State of Maryland and the ordinances of the city of Baltimore; that the said City Commissioner, contrary to the ordinances of the city of Baltimore, subsequently changed the grade of said Belair Avenue, between Ann and Choptank streets, upon a petition to said City Commissioner, which was not signed by the owners of a majority of the number of feet of ground binding and fronting on that part of said Avenue asked for to be re-graded, and without having given the notice required by the ordinances of Baltimore city.

The bill further charges, that there was not a contract in writing for grading and paving Belair Avenue, as is required to be done by the ordinances of the city of Baltimore; that the plat of the property binding and fronting on the part of Belair Avenue applied for to be paved, under the application aforesaid, is not such a plat as is required by the ordinances of the city of Baltimore; that the proceedings of the City Commissioner are irregular, illegal and void, and have created no liability in law upon said complainants, and are not liens on said complainants' lots of ground; that the proceedings of the City Auditor are irregular, illegal and void, from the many errors in his proceedings, and especially in this, that the Auditor did not give the legal notice to the holders or owners of the lots of ground, by advertisement, to pay the sums so alleged to have been assessed upon each of said lots of ground above described, and which said notice should have been given by said Auditor prior to advertising said property for sale, and that said Auditor, in his advertisement, states that said accounts are for the paving of Belair Avenue, when, in fact, they are for grading and paving Belair Avenue; that the bills or accounts for grading and paving Belair Avenue, from Point Lane to North Avenue, were withdrawn by P. Schneider & Company from the City Collector, and were subsequently returned to said Collector, and the duty and authority of the Collector and of the Auditor to coerce payment of the same were determined, and could not again be revived.

The bill further charges, that the proceedings of the City Auditor tend to the impoverishment of the appellants, and to the irreparable injury of their freehold and leasehold estates and titles; and should said sale be made, it would subject them to long, numerous and vexatious suits at law, and cast clouds upon their titles; that they would be prevented from making any disposition of their lots, and the sale would subject them to such an injury as for which the law affords no adequate redress.

The respondents are required to bring into Court the record of proceedings of the City Commissioner, the City Collector and the City Auditor, in the matter aforesaid, or transcripts thereof. The bill prays for an injunction to restrain the respondents from selling the appellants' lot of ground, and for general relief.

On the 30th day of March 1858, the defendants filed their joint and separate answer, and admit that the defendant, William Fuller, had advertised said lots of ground of the complainants for sale, as set forth in the bill, and aver that the same has been advertised, after due notice, and after compliance in every respect with the said ordinances; that one of said lots of ground, at the time the assessment was made for paving Belair Avenue, was owned by A. J. Bouldin, who then held a life-estate in the same, as tenant by the courtesy; that said A. J. Bouldin has since departed this life intestate; that no administration has been had on his estate; and that at his death the said lot of ground passed to the said Augustus Bouldin and a certain Randolph J. Bouldin, as tenants in common.

The respondents neither admit nor deny the ownership of Harriet Bouldin, but leave her to prove the same. They admit the ownership of Jane A. Bouldin in the lot claimed by her, and aver that Belair Avenue has been regularly and formally condemned as a public street, and was condemned and opened and made a public street and highway before the application to pave and grade the same was made; that whether the complainants ever assented that the several regulations prescribed by the ordinances relative to streets should be construed to said Belair Avenue, said respondents knew not, and aver that it was not material whether they did or not so assent.

The respondents admit the application to the City Commissioner, filed July 25th, 1853, and aver that it was made by the owners of a majority of the feet of ground fronting and binding on Belair Avenue, between Point Lane and North Avenue; that due notice was given by advertisement, and on the 10th day of September 1853, it was determined by the said City Commissioner, with the approbation of the then Mayor, to pave the same; that proposals were advertised for and received, and the contract to grade and pave was awarded to Frederick Crey and Patrick M. Holbrook, with the approbation of the Mayor; that, subsequently, Frederick Grey and Patrick M. Holbrook gave bond, with approved security, for the performance of the contract, and annexed to their answers certified copies of the said proceedings and the said bond. They further admit the application of June 25th, 1853, referred to in the bill, and aver that no determination was had in relation thereto, and that the same was abandoned before the application of the 25th of July was made. They also aver that the only power of attorney given by Joseph T. Mears to Benjamin A. Lavender, is that dated the 1st of July 1853, a copy of which forms part of respondents' exhibit No. 1, and deny that it was ever annexed to the application of the 25th of June 1853, and insist that if it had ever been annexed to the application of the 25th of June 1853, it might have been properly taken therefrom, after the said application was abandoned, and even before, and annexed to the application of the 25th July 1853; and that the said Benjamin A. Lavender was authorized, by the said Joseph T. Mears, to sign, as his attorney and as his agent, the said application of the 25th July 1853.

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