Page v. City of Baltimore

• Decision Date: 22 June 1871
• Parties: WASHINGTON A. PAGE v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

34 Md. 558

WASHINGTON A. PAGE v. MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

June 22, 1871

APPEAL from the Baltimore City Court.

The facts are given in the opinion of the Court.

At the trial below, the following bills of exception were taken:

First Exception: The appellant in order to prove that he had not been benefited by the condemnation of the parcels of ground, mentioned in the proceedings of the Commissioners for Opening Streets as having been condemned offered in evidence the ordinances of the Mayor and City Council of Baltimore, of 1826, ch. 11, section 46, and Article 22, section 46, of the Baltimore City Code. The Court refused to admit the testimony and the appellant excepted.

Second Exception: The appellant offered to prove that the strip or parcel of ground attempted to be condemned under the proccedings of the Commissioners for Opening Streets, was a part of the bed of Light street as originally condemned by virtue of the Act of 1805, ch. 84; and that the commissioners in their said proceedings have not widened Light street, from Pratt street to Lee street. The Court rejected the evidence and the appellant excepted.

The verdict and judgment being against the appellant, he took this appeal.

The cause was argued before BARTOL, C.J., STEWART, BRENT MAULSBY, GRASON, MILLER and ALVEY, J.

Jno. P. Poe and R. J. Bouldin, for the appellant.

This appeal is authorized by law, notwithstanding the Court below sat as an appellate tribunal. Act of 1852, ch. 77; Act of 1853, ch. 451; Code of Pub. Gen. Laws, Art. 29, secs. 53, 60; Act of 1865, ch. 141; Cons. of 1867, Art. 4, sec. 28; Balt. City Code, 835, sec. 9, of Ordinance, No. 17.

The jurisdiction of the Court below in cases of this description is not limited to the simple inquiry as to whether the assessments of the commissioners were correct or not; but it was bound to hear and consider any and all proper motions, and to admit any and all legal evidence, the object and effect of which were to establish that the Street Commissioners had not pursued the provisions of the law, by a compliance with which they could alone lawfully exercise jurisdiction in the premises, and that it therefore erred in refusing to hear the motion to quash, and in rejecting the evidence in the first and second exceptions.

In this case, the appellant upon appeal moved to quash the proceedings, because the appellees had passed the ordinance in question without giving the indispensable notice required by law; and because the commissioners had proceeded irregularly in several specified particulars, and because the street had already been validly condemned sixty years ago; and yet in the face of the decision in Mayor, &c., of Balt. vs. Bouldin, 23 Md., 375, that such a review was legitimate and proper, the Court below refused to hear us on the ground that these objections could not be reviewed upon appeal, but that the appellant must seek redress elsewhere. Methodist Church vs. Mayor, &c., of Balt., 6 Gill, 391; Alexander vs. Mayor, &c., 5 Gill, 383; Richardson vs. Mayor, &c., 8 Gill, 433.

Robert D. Morrison and I. Nevett Steele, for the appellee.

It is contended for the appellee that the motion to quash was properly overruled for the following reasons:

The jurisdiction of Baltimore City Court in cases of this kind is limited and special, and is confined to the review of the assessments of the commissioners in those cases where an appeal is taken. Upon such appeal the validity of the ordinance, under which the proceedings of the commissioners were had, cannot be impeached, nor can evidence for that purpose be admitted. The case comes into Baltimore City Court, as a Court of Appeal, having a special statutory appellate jurisdiction, and the question of the validity of the ordinance being one, on which the commissioners do not and cannot pass judgment, it is not before the appellate tribunal, whose only function is to review the decisions of the commissioners. If the ordinance be invalid, the remedy of any person aggrieved by it, is by certiorari, injunctions, or actions of trespass or ejectment, in the Courts having jurisdiction under the State Constitution.

The alleged irregularities, so far from furnishing ground for quashing the proceedings, offer no impediment whatever to the exercise by the Court below of the jurisdiction conferred upon it by law, and which the appeal asks it to exercise, viz: the jurisdiction to ascertain by a jury trial the correct assessment. Code of Public Local Laws, Art. 4, sec. 837; Stewart vs. M. & C. C. of Balt., 7 Md., 500-515; Mayor, &c., of Balt. vs. Porter, 18 Md., 301, 302; Rundle vs. Mayor, &c., of Balt., 28 Md., 361, 362; Swann vs. Mayor, &c., of Cumberland, 8 Gill, 150.

The fifth reason in support of the motion to quash assumes that under the Acts of 1796 and 1805, Light street wharf had been condemned as a public highway, and submits that therefore the ordinance of 1869 is invalid, because the Mayor and City Council can not authorize the condemnation for a street, of ground which is already condemned as a public highway. It will be found that the Acts of Assembly do not support this view. On the contrary, they distinctly recognize and protect the proprietary rights of the property owners who should make and fill out wharves, and reserves to them "the benefit and advantage of the wharfage thereof," and then declares the wharves a public highway. They were, therefore, a public highway only in a qualified sense and to a very limited extent, for the ownership of the soil, with the right to use them as wharves remaining in the riparian proprietors, it is manifest that this use of them might, and probably would, so obstruct their use as a public highway, as to render the right of way of little value. Act of 1745, ch. 9, sec. 10; Act of 1796, ch. 45, sec. 3; Acts of 1801, ch. 92; 1805, ch. 84.

GRASON J., delivered the opinion of the Court.

Under ordinance 7, of 1869, entitled "An Ordinance to condemn and widen Light street, &c.," the Commissioners for Opening Streets, gave notice, on the 9th day of September, 1869, in three daily newspapers, published in Baltimore city, that they would meet at the hour and place therein appointed, on the 12th day of October, 1869, and then and there proceed to execute the powers and perform the duties assigned to and required of them in regard to condemning and widening Light street, from Pratt street to Lee street, in accordance with said ordinance. They met in pursuance of the notice, and qualified by taking and subscribing the oath prescribed by the second section of ordinance 26; and the clerk and surveyor, employed by them, also took and subscribed the oaths required of them respectively, by the fourth section of ordinance 26. The commissioners then proceeded to discharge their duties under the ordinance of 1869, and assessed against the appellant the sum of $1,137.50 as benefits in respect of two lots owned by him in the vicinity of the improvement. Being dissatisfied with the amount of benefits assessed against him, the appellant appealed, within time, to the Baltimore City Court, and there moved to quash the proceedings of the commissioners, and assigned five reasons therefor. The motion was overruled, and he then offered the evidence set out in his first and second bills of exception, and it was rejected, and the verdict and judgment being against him, he appealed to this Court.

The first question to be decided is, whether, in a case like this, an appeal lies to this Court from a decision of the Baltimore City Court upon matters of law. By the Act of 1852 ch. 77, section 1, an appeal is expressly given to this Court from the Criminal Court of Baltimore city, to which Court alone appeals from the Street Commissioners were at that time authorized by law. The Act of 1853, ch. 451, section 1, provided for appeals from the commissioners to the Supeperior Court also, and the second section authorized an appeal to the Court of Appeals from a decision of the Superior Court upon any matter of law; and the Act of 1865, ch. 141, prescribed the time for hearing such appeals in this Court. The Constitution, Article 4, section 28, vests the City Court with exclusive jurisdiction of all cases arising under the ordinances of the Mayor and City Council, and to that Court alone do appeals now lie from the Street Commissioners; and appeals from that Court are provided for by the ninth section of ordinance 26. In the case of Rundle vs. The Mayor and City Council, 28 Md., 357, this Court decided that the jurisdiction of the Criminal Court of Baltimore city was a special appellate jurisdiction, conferred by statute, and applied to that case the general rule that an appeal would not lie from such a jurisdiction to this Court, unless it was given by statute. That case was not argued in this Court, but was submitted upon the briefs, in which the Act of 1852 was not cited or referred to, and the case was decided without reference to that Act, and the appeal was accordingly dismissed. But there is no doubt that an appeal in such cases, is provided for by statute, and ...