Whiteley v. City of Baltimore
|23 June 1910
|77 A. 882,113 Md. 541
|WHITELEY v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
|Maryland Court of Appeals
Appeal from Baltimore City Court; Henry Stockbridge, Judge.
Proceedings by the Mayor and City Council of Baltimore and others to open a street.From an order overruling the motion of J. Holmes Whiteley to quash and set aside the proceedings, he appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS, and URNER, JJ.
William S. Bryan, Jr., for appellant.
Albert C. Ritchie, for appellees.
This is an appeal from an order of the Baltimore city court overruling a motion to quash and set aside the proceedings to open Thirtieth street, in the city of Baltimore, through certain property in which the appellant has an interest. The appellant relies on three grounds in the motion, which we will consider in the order therein named.
1. The first reason assigned is that the ordinance under which the proceedings were taken is void because the preliminary plat filed in the office of the commissioners for opening streets prior to the passage of the ordinance did not have on it a schoolhouse which belonged to the city. Section 828, art. 4 c. 123, Laws 1898, provides that before the mayor and city council of Baltimore shall pass any ordinance under section 6 of that article, paragraph "Streets, Bridges and Highways," relating to laying out, opening, etc., any street, square, lane, or alley, notice shall be given by advertisement published once a week for six consecutive weeks in two daily newspapers in said city that application will be made for the passage of such ordinance; and notice shall also be given by filing in the office of the commissioners for opening streets on or before the first day of such publication a map as described therein, "which, in case of laying out, opening, extending, widening or straightening shall show the course and the lines of the projected improvement, and also the lots and buildings thereon which shall be taken or destroyed, in whole or in part." The plat in this case was filed on May 20, 1907, and the first publication of the advertisement was on December 20th of that year. An agreed statement of facts filed in the case shows that the schoolhouse referred to "was not a permanent schoolhouse, that it was no part of the permanent improvement in the neighborhood of Thirtieth street, but was a portable schoolhouse, movable from place to place as the exigencies of the school board required." It is admitted it was not near Thirtieth street on or before May 20, 1907, but was moved partially on the bed of that street in the early part of December, 1907, and, when the final "damage and benefit plat" was prepared, the schoolhouse was in place as shown on that plat. It is movable by taking it to pieces and moving it from place to place in sections, and then the sections are put together. It "simply rests upon the ground, and has no foundations whatever." Regardless of the fact that the schoolhouse belonged to the city, such a building is not within the meaning of the charter. It was not to be "taken or destroyed, in whole or in part," in the sense the provision is used. The agreed statement says "Said schoolhouse is not to be taken in any way in connection with the Thirtieth street opening, but, when the work begins, it will be moved elsewhere." It is therefore admitted that it was not to be "taken," and it certainly will not be "destroyed," in whole or part, when it is only to be taken apart and put together again, as such a building is intended to be. The only possible loss or inconvenience which the city might sustain would be that it might be necessary to remove it sooner than it would have been moved if the street was not to be opened, but it can scarcely be contended that such expenses should be allowed in a proceeding of this character, where one department of the city government (department of education) placed the temporary structure there after the map had been filed with another department. The charter expressly recognizes the filing of the map as notice, and it must at least be held to be such notice to the city and its various departments as would deprive it or any of them of compensation for expenses incurred in moving it under the circumstances shown by this record. But, in addition to that, it could not have been intended that placing a temporary structure of such character as this is on the limits of a proposed street after the map was filed could invalidate the proceedings because that preliminary map did not contain the structure. It could not have shown it on May 20, 1907, for the simple reason that it was not there to be shown. If such an omission could defeat proceedings of this character, the city authorities would be required to keep a lookout for portable buildings up to the very time the map is filed, and, if placing such a structure there after the preliminary map had been filed would invalidate the proceedings, why would not placing it there after the publication of the notice in the newspaper, but before the assessment of damages and benefits? If such a construction be given this requirement of the charter, it would be an easy way for those opposed to such improvements to obstruct and defeat them, for publishing the notice and filing the map are undoubtedly conditions precedent to passing a valid ordinance for the opening of a street. Baltimore v. Grand Lodge, 44 Md. 436; Burk v. Baltimore, 77 Md. 469, 26 A. 868. So, without giving other reasons, we cannot adopt the contention of the appellant as to that question.
2. The next ground relied on is that the commissioners for opening streets did not give 30 days' notice in two daily newspapers published in the English language before the first meeting to execute the ordinance, but only inserted it in one newspaper published in the English language, and in one published in the German language. Section 829 provides that: "Before any commissioners appointed by any ordinance of said corporation under the two preceding sections shall proceed to the performance of their duty, they shall give notice in at least two of the daily newspapers in the city of Baltimore of the object of the ordinance under which they propose to act, at least thirty days before the time of their first meeting to execute the same." This court held in Bennett v. Baltimore, 106 Md. 484, 68 A. 14, that: "In the absence of a direction to the contrary, the publication of a notice required by law to be made must be in the English language and in a newspaper printed in that language." That has since been followed in Wannenwetsch v....
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