Pumphrey v. City of Baltimore

• Decision Date: 19 June 1877
• Parties: NATHAN PUMPHREY v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

47 Md. 145

NATHAN PUMPHREY v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

June 19, 1877

MANDAMUS.

APPEAL from the Superior Court of Baltimore City.

In this case a petition for a mandamus, was filed by the appellant in the Superior Court of Baltimore City, on the 22nd of December, 1876, to compel the appellee to take charge of a bridge and preserve the same as a free public highway in accordance with the Act of 1876, ch. 220, requiring them so to do.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, ALVEY and ROBINSON, J.

F A. Linthicum and J. J. Alexander, for the appellant.

T A. Buchanan and J. V. L. Findlay, for the appellee.

BARTOL C.J., delivered the opinion of the Court.

This is a petition for a writ of mandamus, filed by the appellant, to compel the appellee to take charge and possession of the bridge over Gwynn's Falls in the City of Baltimore, known as "Harman's Bridge." The defendant demurred to the petition and by consent of counsel a pro forma judgment was rendered for the defendant, reserving the right of appeal. The question presented is the sufficiency of the matters alleged in the petition to entitle the appellant to the writ.

The facts of the case as they appear in the petition are correctly stated in the appellant's brief as follows: "Before the passage of the Act of 1835, ch. 24, and before the building of Harman's Bridge, there was existing a bridge over Gwynn's Falls near the present bridge, which was the property of the City of Baltimore and which was a free bridge. By the Act of 1835, ch. 24, Krebs and Linthicum were authorized to build the bridge known as Harman's Bridge, but as Gwynn's Falls and therefore any structure over it, was within the city limits, and as it was designed that the bridge thereby authorized to be built should take the place of the former bridge, it was first provided by the Act, that, subject to the builders' rights of taking tolls, &c., the bridge and its approaches should be a public highway of the city, and it was secondly provided that the city might at any time after the bridge was built, by resolution or otherwise, assume charge of keeping the bridge in repair; whereupon the title to the bridge was to vest in the city and the bridge to become free. The rights of the proprietors were provided for by requiring the city upon assuming charge of the bridge, to pay them such a sum of money as should be ascertained by arbitration to be the value of the structure; and the city was authorized on the completion of the bridge, to take down the old bridge and sell it.

The Act however was to go into effect only on its acceptance by the city. This acceptance was given by ordinance of February 11 th 1836. The new bridge was built under the Act, and the old bridge was taken away and sold by the city. Messrs. Rayner and Shoemaker are now, and were at the times hereinafter mentioned, owners of the bridge.

The provisions of the Act of 1835, ch. 24, were in respect to the taking of the bridge by the city, and the awarding of compensation therefor, amended in several particulars by the Act of 1867, ch. 94, the provisions of this Act are set out in the petition.

The Mayor and City Council of Baltimore by resolution approved October 25th, 1870, reciting "that the interest and convenience of the citizens of Baltimore City, and of the Counties of Baltimore and Anne Arundel, adjacent thereto, require that said bridge (which it was thereby declared was within the limits of said city) should be controlled by said city, and kept and maintained as a free bridge as other bridges in said city are kept and controlled," the city assumed the charge of keeping Harman's Bridge in repair without charging tolls for crossing the same, and Mr. Tegmeyer was appointed arbitrator on the part of the city under the Act of 1867, and directed to give notice to the owners of the bridge to appoint an arbitrator on their part as required by the Act. The Comptroller was by the resolution authorized to pay the amount of the award out of moneys in the city treasury not otherwise appropriated.

Tegmeyer accepted the office of arbitrator, and on the 4th day of November 1870, addressed a written notice to the owners of the bridge, of his appointment, requiring them to appoint an arbitrator to act in conjunction with him. The owners of the bridge did within sixty days thereafter, appoint as arbitrator on their part, the late J. Dean Smith, and the arbitrators met, took upon themselves the reference and proceeded therein. A difference occurred between them as to the value of the bridge, and Tegmeyer refused to proceed further in the reference, refused to appoint an umpire and withdrew from the arbitration altogether, in these matters acting at the instigation of the city.

The proprietors of the bridge remonstrated with him, and with the city, but without effect, and the Mayor and City Council of Baltimore not only refused to proceed further therein, but afterwards by resolution approved on the 24 th day of April 1871, repealed the resolution of October 24th 1870, and thereby refused to take charge and control of the said bridge, and establish the same as a free bridge. The petition avers that the said attempted repeal was invalid and of no force and effect. Afterwards Smith died. The petition alleges that the owners of the bridge have always been ready to appoint a new arbitrator in his stead, and go on with the reference, but the defendant has refused to go on with it, or to allow Tegmeyer to act in it, and has taken no other steps to acquire the bridge.

The General Assembly by the Act of 1876, ch. 220, sec. 7, enacted "that the Mayor and City Council of Baltimore be and they are hereby authorized, directed and required on or before October the first 1876, to take charge and possession of the bridge over Gwynn's Falls, known as Harman's Bridge, according to the Act of the General Assembly of Maryland of 1867, chapter 94."

This the defendant refuses to do, alleging that the Act of 1876 is not binding upon it.

The Act of 1835 while it authorized the city to acquire the possession and assume control of the bridge, left the matter to the discretion of the city authorities. The Act of 1867 did not alter the Act of 1835 in this respect. After the passage of the Act of 1867 as before, it remained within the discretion of the city to purchase the bridge. This was the state of the law when the resolutions of 1870 and 1871 before referred to were passed. The appellant's counsel have argued that the city, having by the resolution of 1870 declared its election, and having taken steps to acquire the bridge, by appointing an arbitrator to determine its value, was thereby concluded and could not afterwards change or abandon its purpose, and consequently that the repealing resolution of 1871 was invalid and of no force.

On the other hand the appellee's counsel has referred to the cases of Balto. & Susquehanna R. Co. vs. Nesbit, 10 Howard, 395; Graff vs. Mayor, &c., 10 Md., 544; State vs. Graves, 19 Md., 351; Merrick, Adm'r vs. Mayor, &c. of Balto., 43 Md., 219, and Norris vs. The Mayor, &c., 44 Md., 598.

To show that at any time before the property was actually acquired, and while the proceedings were in fieri, the city authorities had the right to change their purpose, and repeal the resolution of 1870.

The authorities cited seem to be conclusive of this question in favor of the appellee. But it is not necessary to decide this point in the present case, as we think the rights and obligations of the appellee depend upon the effect and operation of the Act of 1876.

By this Act, which is mandatory in its terms, the discretion of the city over the subject has been taken away and it is " directed and required" to take charge and possession of the bridge.

The questions then to be determined are, 1st. Had the Legislature...