Mayor of Baltimore v. Musgrave

48 Md. 272, 1878 Md. LEXIS 103

• Court: Court of Appeals of Maryland
• Decided: March 26, 1878
• Status: Published

Opinion

Miller, J.,

delivered the opinion of the Court.

A municipal corporation has the right to abandon any contemplated improvement, and repeal at its pleasure any ordinance providing for the same, and after such abandonment, property owners cannot compel the corporation to take and pay for property condemned for such purpose, nor does any action lie against the corporation for such abandonment merely. These propositions have been settled by many decisions of this Court. Graff vs. Mayor, &c., 10 Md., 544; McClellan vs. Graves, 19 Md., 351; Norris vs. Mayor, &c., 44 Md., 606. But the same authorities hold, that where the owner of property has suffered loss or damage by the acts or delay of the corporation in any such case, he is entitled to redress for the same, and that is the foundation of the action in the present case.

The plaintiff is the owner of a tannery on Jones’ Falls, in the City of Baltimore, located between Front street and the stream, and between Gray and Hillen streets, and this establishment was within the lines prescribed for the improvement of Jones’ Falls, by the 12th section of the ordinance on that subject of the 24th of April, 1812, and the record shows that on or about the 6th of January, lS^, the Commissioners appointed' under that ordinance came to his establishment with their clerk and janitor, and exhibited to him a map or drawing of the improvement, including his premises, and notified him that they had condemned his property and would require possession of it at the earliest moment, as it was within that part of the section comprising it on which they desired to begin their work. They also further notified him that as from the nature of the tanning business, it would take him some time to work up his stock and close up his business so as to be able to give possession of his property to the city, he must so regulate his business as to bring it to a close at the earliest moment, and take in no new stock of bark or hides, but content himself with working out what he had on hand at the time, and one of the Commissioners from time to time afterwards urged the same thing upon him. This request or notice was given, accepted and complied with in good faith, and was never countermanded.

In consequence of it, and for no other reason, he at once commenced closing out his business, which he would otherwise have prosecuted as usual, and in thus closing out he did about half work for six months, and no work at all for about a year afterwards until the latter part of April, 1874, when he made up his mind the improvement would not go on, and at once commenced making arrangements for procuring bark and resuming his work. It is for the loss and damage occasioned by this suspension of his business, that he now sues, and it is obvious that his right to recover depends entirely upon the question whether it was within the scope of the authority vested in these Commissioners to give the notice and make the demand or request referred to ; for it is very clearly settled that one who contracts or deals with the agents or officers of a municipal corporation, must at his peril take notice of the limits of their powers. Mayor, &c. vs. Eschbach, 18 Md., 276; Mayor, &c. vs. Reynolds, 20 Md., 1; Mayor, &c. vs. Kirkley, 29 Md., 85 ; Horn vs. Mayor, &c., 30 Md., 218. We must therefore examine the laws and ordinances relating to this improvement, and determine the extent of the powers and authority thereby vested in these Commissioners.

After the great destruction of property in that vicinity occasioned by the flood of 1868, efforts were made to have the channel .of this stream flowing through the city, so changed, widened, straightened and improved, as to prevent the recurrence of similar disasters. A plan for this improvement was made by Mr. Tyson, which was adopted by the Mayor and City Council, and Ordinance No. 13, of 1870, approved January 31st of that year, was passed, appointing three named Commissioners to carry it into effect. By Ordinance No. 12, approved on the same day, provision was made for the issue of bonds of the city, not exceeding $'2,500,000, the proceeds of which were to be used in the construction of this improvement and for no other purpose. It was also provided that this ordinance should be submitted to a vote of the people for their approval or rejection, after the General Assembly should have passed a law authorizing the issue of such bonds. The Legislature, by the Act of 1870, ch. 113, approved March 23rd, 1870, authorized the Mayor and City Council to issue bonds not exceeding $2,500,000 for this purpose, provided Ordinance No. 12 above mentioned should be approved by the votes of a majority of the legal voters of the city. By another Act, approved on the same day, (Act of 1870, ch. 115,) the Mayor and City Council were authorized and empowered to make such improvements in connection with Jones’ Falls, as in their judgment are desirable, and for this purpose to change the course, lines, and boundaries of the stream in whole or in part, to lay out and construct streets, avenues, and wharves on the sides of and adjacent to the same, to widen and deepen the channel, to construct such sewers and drains as may be requisite, “and generally to do all such things, and exercise all such powers as in their judgment shall be necessary to be done and exercised, for the accomplishment of any plan or plans for the improvement of Jones’ Falls, which have been or may be adopted by them.” This law also gives them power to acquire property by condemnation, and ratifies all the provisions of Ordinance No. 13, above referred to, in the same manner, and to have the same effect as if that ordinance had been passed after the approval of this Act. The bond ordinance was subsequently approved by the popular vote, but nothing was done in prosecution of the work under Ordinance No. 13. In 1872 was passed Ordinance No. 51, approved April 24th, of that year, supplementary to Ordinance No. 13, of 1870, and ’ the Commissioners appointed under this supplementary ordinance proceeded in the discharge of their duties, and it was while acting under this ordinance that they gave the notice and made the demands respecting the plaintiff’s property, which have resulted in the present suit. Its provisions we shall examine more at length, presently. It is conceded that while it was originally estimated the entire cost of this improvement would not exceed $2,500,000, yet the valuation of property alone to he taken for the work, amounted to nearly that sum, and it was then estimated that the additional sum of $1,500,000 would he required to complete it. An ordinance approved February 12th, 1874, providing for the issuing of bonds for this additional sum was submitted to the people for approval, but was rejected, and then by an ordinance approved May 27th, 1874, the ordinance of 1872 was repealed, and the improvement thereby authorized was abandoned.

Let us now examine this ordinance of 1872. It consists of twenty-two sections, and a general review of its main provisions is essential to an understanding of the powers it conferred upon the Commissioners. It provides first for the appointment of three persons to be styled the “Board of Commissioners for the Improvement of Jones’ Falls,” fixes their salaries, prescribes their oath of office, gives them power to appoint a clerk, who shall keep a full and true record of their proceedings, also a chief engineer, who shall act under their supervision, and discharge such duties as shall be prescribed by this ordinance or by .the said Board, and by section seven it is enacted, “that the said Board of Commissioners shall have, and they are hereby vested with the general charge, superintendence and control of the execution of the plan for the improvement of Jones’ Falls hereinafter mentioned and prescribed, and shall have all the powers necessary or proper to carry out said plan and accomplish the said improvement.” The Commissioners are then given full power and authority to make, award, and settle the terms-of all contracts necessary for the construction of the works contemplated hy this ordinance, and are authorized and directed to superintend the performance of the work hy the contractors, and to annul their contracts if they fail faithfully and properly to perform them. Before awarding these contracts they are required to advertise for proposals and to award the same to the lowest competent and responsible bidder, and to so apportion them, as that the completion of the entire work shall be accomplished as soon as may be consistent with the proper execution of the same. All expenses of the Board in the discharge of their duties, including their salaries, and all payments due on the contracts awarded by them, and all payments for land damages, are to be paid by the City Register upon the warrant of the Comptroller, who shall issue his warrant therefor upon the production to him of orders specifying the amounts respectively due, signed by the Board or a majority of them, and the Commissioners shall present to the Mayor and City Council quarterly reports giving detailed accounts of their proceedings and expenditures. By section twelve it was made their duty without -delay, under the advice of their chief engineer, to establish and. define the lines of the improvement from Eager street to the Basin, to determine the heights and widths of the new walls, the depth of the excavations to be made, and to adopt detailed specifications of the entire work, provided the width of the new channel between certain described points shall be according to certain specified details, and provided further, that in establishing the lines, and obtaining the width, and adopting the details aforesaid, the Commissioners shall he governed hy, and as nearly as possible conform to, certain general directions which the section specially prescribes. When these locations are thus made and these lines are thus established, they shall have made an accurate copy of the plat or drawings of the lines, and file the same in the office of the City Commissioner, and the same shall be known and recognized, after all rights of property within the same shall have been acquired by the city, as the lines and boundaries of Jones’ Falls. It is then made their duty to have erected certain described bridges, for which they are to award contracts in the same manner as for the construction of other parts of the work, also to provide in the same manner for the construction of sewers, and to make such changes in the grades of streets as may be necessary for the proper construction of the works hereinbefore provided for. They are then directed to have made such additional plats and surveys as may be requisite for the ascertainment of the damages consequent upon the condemnation or acquisition of property necessary to be acquired by the city in the location of these new lines, or may be damaged thereby; and they shall then proceed to ascertain what actual damage will be caused to the owners of such property, and in making this estimate of damages they shall take into consideration the benefits, if any, which in their judgment will accrue to such owners, and if in any case part of a lot or house only is required and the owner shall claim compensation for the whole, they shall ascertain the value of the whole, and sell what is not needed. After completion of this valuation, including the value of all property necessary to be acquired by the'city for the construction of these works, they shall cause statements thereof to be made, which in connection with an explanatory map, shall contain a correct description of each parcel of property to be taken, and the amount of damages awarded by them to each owner. They shall then give notice by publication that such statements have been prepared and are ready for examination by parties interested, and that they will meet to review their several ascertainments of damages to which any interested party may file written exceptions ; and on the hearing of such exceptions, they shall take testimony and make such corrections in their estimates as to them shall appear just and proper. After such corrections have been made, they shall cause these statements and maps to he copied, certified and deposited in the office of the City Register, and shall then give notice of the right of appeal. Provision is then made for such appeals to the City Court, and for a jury trial.' In cases where no appeal is taken the assessments of the Commissioners are made conclusive. Finally, upon payment or tender of the sums so ascertained hy the Commissioners, or by the Court on appeal, to the parties entitled, or upon the investment thereof in five per cent. City Stock, such property shall become the property of the city for the purposes aforesaid.

Such are the powers conferred on these Commissioners; and such are the duties they were required hy this ordinance to perform. It cannot be successfully contended that the ordinance itself is in any respect in excess of the powers granted to the city hy the Act of 1810, ch. 115. But does' the ordinance give these Commissioners the authority to notify a property owner before his property is actually paid for under the condemnation, to close out his business and prepare to deliver possession, so as to hind the city for any loss accruing to him hy reason of his obeying such notice and demand? The authority to do so is rested mainly upon the general terms of section seven, hy which the Commissioners are vested with the general charge, superintendence and control of the execution of the plan for the improvement hereinbefore mentioned and prescribed, and which declares they shall have “all the powers necessary and proper to carry out said plan and accomplish the said improvement.” The terms here- employed, it must be admitted, are very broad and general, but it must be remembered that language, however general in its form, when used in connection with a particular subject-matter, will he presumed to he used in subordination to that matter, and is therefore to he construed and limited accordingly. This is the rule of interpretation that is universally applied to instruments, whether formal or informal, creating agencies between private individuals. Story on Agency, secs. 21, 62, 68, 69. It is also a universal principle of the law of agency that the powers of the agent are to he exercised for the benefit of the principal only, and not of the agent or third parties. Hence a power in the most general terms to draw and endorse bills for, and in the name of the principal, will not authorize a drawing or endorsing in his name for the accommodation of third persons, or for the benefit of the agent. Adams Express Co. vs. Trego, 35 Md., 67. It must also be noted that there is a broad distinction between the acts of an officer or agent of a public municipal corporation, and those of an agent for a private individual. In cases of public agents the Government or other public authority is not bound unless it manifestly appears that the agent is acting within the scope of his authority, or he is held out as having authority to do the act, or is employed in his capacity as a public agent to make the declaration or representation for the Government. Story on Agency, sec. 307 a. This rule was adopted and applied by this Court in the cases of Mayor vs. Eschbach and Mayor vs. Reynolds, and the reasons for it stated. These are founded in public policy, and the rule indeed seems indispensable ‘c in order to guard the public against losses and injuries arising from the fraud, Or mistake, or rashness and indiscretion of their agents.” In the case before us there is an entire absence of even a pretence of fraud or collusion, and it is conceded the Commissioners, as well as the plaintiff, acted with the utmost good faith, but this cannot affect the principle on which the rule is founded, or prevent its application. Our predecessors have adopted, in Reynolds’ Case, the language of the Supreme Court in Lee vs. Munroe, 7 Cranch, 370, where it is said “it is better that an individual should now and then suffer hy such mistakes, than to introduce a rule, against an abuse of which, hy improper collusions, it would he very difficult for the public to protect itself.”

In the light of these well settled principles and rules of construction, we are unable to say that the authority insisted on is conveyed hy the general language of this section. The mode of condemning property and of assessing and settling the damages are specially pointed out, and the duties of the Commissioners in that respect are plainly defined. We cannot suppose it was the intention of those who enacted this ordinance, that the Commissioners should have power to enter into any arrangements, or contracts with, or do any acts towards, property owners hy which any other claim for damages could accrue to them than for the sums so to he ascertained and settled. Was it contemplated that every property owner, doing business in that locality, might have two sets of claims against the city, one for the value of his property ascertained by the condemnation, and the other for leaving it, or quitting bis business upon preliminary notice, given by the.Commissioners? It is clear beyond question, that no property owner could be deprived of the use or possession of his property, until he had been paid for it, or tendered the sum ascertained by the Commissioners, or by a jury on appeal, and it follows that he was not hound to obey any notice to quit or to close out his business-, given hy the Commissioners before such payment or tender had been made. It is equally clear, that upon such payment or tender, the city could immediately take possession and oust the owner, no matter what might be the condition of his property or the state of his business. A power therefore, the exercise of which would, so far as we can see, result in no practical benefit to the city, a power which could not he enforced, and need not be obeyed, we cannot regard as “ necessary or proper” to carry out tbe plan and accomplish the improvement contemplated and provided for hy this ordinance. No other part of the ordinance professes to grant any such power, and in our judgment, the Commissioners in giving this notice and making this demand, exceeded the authority conferred upon them, and the city is therefore not responsible for the damages which resulted to the plaintiff from his voluntary acquiescence therein. It follows there was error in granting the plaintiff’s prayer.

(Decided 26th March, 1878.)

It appears from the record, that the notice was given on the 6th of January, 1873, before any formal condemnation of the property had been made. That condemnation, and the fixing of the value of the property by the Commissioners, was not completed until the 15th of the following August. The plaintiff acquiesced in the assessment made by the Commissioners, but other parties appealed, and all of these appeals had not been finally disposed of, before the ordinance was repealed. There was, hence, no such unauthorized delay on the part of the city, in abandoning the work as would give the plaintiff a cause of action on that ground, within the doctrine settled in the case of Norris vs. The Mayor. Finding therefore in the record no ground upon which the action can be sustained, we shall reverse the judgment without awarding a new trial.

Judgment reversed, and new trial refused.