State ex rel. McClellan v. Graves

19 Md. 351, 1863 Md. LEXIS 4

• Court: Court of Appeals of Maryland
• Decided: January 22, 1863
• Status: Published

Opinion

Bowie, C. J.,

delivered the opinion of this Court:

The Mayor and City Council of Baltimore, by virtue of authority vested in them by an Act of the General Assembly, passed at December Session 1838, entitled, “An Act to vest certain powers in the Corporation of Baltimore, in relation to streets,” on the 21st of October 1858, passed an ordinance to widen Holliday street, between Baltimore and Fayette streets, and to open a street, in continuation of Holliday street, to Exchange Place, and to change the name of Commerce street to Holliday street.

The" Commissioners for opening streets were required to widen Holliday street from Baltimore to Fayette street, to conform to a new plat then filed in the Register’s office, prepared by the City Surveyor, designated as the plat of the proposed opening and widening.

They were also required to condemn and open a street, in continuation of Holliday street, from the south side of Baltimore street to Exchange Place, to conform to said plat, and to proceed in all respects, in widening and in condemnation and opening of the street, in continuation of Holliday street, in accordance with the provisions of an ordinance entitled, “An ordinance to provide for exercising certain powers vested in the corporation, in relation to streets, approved April 30, 1850.”

The Register and Collector of the city, were required to perform such duties in relation to streets, as are required of them by the provisions of the ordinance.

The Commissioners, in pursuance ol this ordinance, advertised for sale at public auction, on the 31st January 1859, on the premises, all the materials in the houses lying and being in the bed of Holliday street, as contemplated to be opened, and also portions of lots; tbe said houses and lots being referred to as numbered on the condemnation plat. The advertisement concludes as follows: “The purchaser or purchasers will be required to give bond in double the amount of purchase money, that the said purchase money will be paid on the day the said Commissioners are prepared to give possession of said property and materials, and that said purchaser or purchasers respectively will remove within sixty days thereafter all such materials so sold, and all rubbish occasioned thereby.”

At this sale the relator, Catharine McClellan, purchased part of a lot No. Ill, for $2,050, for which she gave her bond to the Mayor and City Council, conditioned to pay “on the day that said Commissioners are prepared to deliver to her all that piece or parcel of ground designated on the condemnation plat of Holliday street by the letter E.” The relator also purchased materials in house No. 97, for which she gave her bond, conditioned as above.

The Commissioners proceeded to make their assessment of damages and benefits, which was returned to the Register of the city; and on the Register’s proceeding with said return and report of Commissioners, as required by law, appeals were entered to the Criminal Court of Baltimore, by persons assessed for damages and benefits, and the return and report were transmitted to said Court for adjudication; where, by inquisition of a jury, they were reviewed and considered, and on the 11th of May 1860, finally confirmed.

On the 6th of October 1860, the assessment of the jury and judgment of the Court wore transmitted to the Register of the city for his action,

Among other assessments for benefits, the lot purchased by the relator was assessed $345.55, of which she had the following notice:

“Folio—, CITY TAXES-1860.

Wm. T. Valiant, City Collector.

Catharine M. McClellan,

To the Mayor and City Council of Baltimore, Dr. To benefits assessed on lot No. Ill, opening Holliday street, . - - - - - - - $345.55 October 8 ill, 1860. Received payment,

GEO. M. FORD.

fSÜ“Tf this bill be not paid on or before the 8th day of November next, an additional charge will be incurred for advertising notice1 to owners; and if it be not paid on or before the 8th day of April 1861, next, the above described property will be advertised and. sold, in compliance with existing ordinances.

No.— Baltimore, October 8th, 1860.

Bank oe Commerce, pay to the order of W. T. Valiant, - (Collector,) three hundred and forty-five dollars.

($345.55.) ■ WM. W. MoCLELLAN.

(Endorsed.) WM. THOS. VALIANT, Collector,

Per Robert C. Barnes, Cashier.”

On the 1st of April 1861, an ordinance to repeal the ordinance of the 21st October 1858, to open Holliday street, was introduced in the first branch of the City Council, and finally passed and approved on the 15th April 1861.

It will thus appear, from a comparison of dates, that about thirty months elapsed between the inauguration of, and the final abandonment of the projected improvement of Holliday street. During all which time the Commissioners were not prepared to deliver possession of the lot or houses purchased bjr the relator. And before the period arrived when property assessed for benefits would be liable to sale for default of payment, viz., 8th of April 1861, the ■repealing ordinance was introduced in the lower branch of the City Council, and finally passed and approved on the 15th of April 1861.

The act of opening, widening- and closing streets, is an exercise of the right of eminent domain, delegated by the Legislature of the State to the city, as to other corporations, to be used for purposes of public good.

To subordinate it to any private end, would be a perversion of the highest prerogative known to constitutional government. The inodes in which this power is exerted, vary according to circumstances. Sometimes it is initiated by summoning a jury upon warrant, in the nature of an inquest ad quod, damnum; at others, boards of assessors are appointed to appraise dues and benefits, with the right of appeal to a court of record, and of review by a jury. Yet all are subject to the constitutional inhibition, “that the' Legislature shall enact no law authorizing private property to be taken for public use without just compensation (as agreed upon between the parties, or awarded by a jury)? being first paid or tendered to the party entitled to such compensation.”

The constitutionality of the Act of 1838, ch. 226, and of the ordinance of the city of 1850, No. 17, entitled, “An ordinance to provide for exercising certain powers vested in this corporation, in relation to streets,” has been affirmed by this Court, in the case of Stewart vs. Mayor & City Council, 7 Md. Rep., 500; Alexander & Wilson vs. Same, 5 Gill, 383, and in other cases.

Not only the assessment by commissioners, with the right of appeal to the Criminal Court of Baltimore, but the assessment of benefit dues on the proprietors benefited, is established as a constitutional mode of providing compensation to owners of land taken for public use. The whole system, in fine, has the sanction of the highest judicial authority of the State. Stewart vs. Mayor & City Council, 7 Md. Rep., 514. The Commissioners for opening and widening streets, having a special public duty and jurisdiction assigned them, to be executed in a prescribed form, their proceedings are of a legal character, and must be regarded as subject to all the incidents of proceedings, in the nature of a writ or inquisition “ad quod damnum/’ being but means to the same end.

The dedication of private property to public use, is not complete until the proprietor is paid or tendered the value of his property, as ascertained by the inquest or assessment. No preliminary stejo jorior to actual payment oí tender, so fixes the corporation as to prevent an abandonment of the condemnation or of the enterprize. Graff vs. Mayor & City Council, 10 Md. Rep., 551. Balt. &, Sus. R. R. Co. vs. Nesbit, 10 Howard, 395. Persons dealing with Commissioners for property or materials partially appropriated to the public use, deal with them as public officers, acting under the municipal councils, which have the power and the right to abandon any projected improvement when it becomes obvious it will not promote the public good. The purchase money for the property and materials lying in the bed of the projected condemnation, and sold to the relator, was to be paid on the day the Commissioners were prepared-to give possession. They could not be prepared until the proprietors were paid, or the damages tendered. No title vested in the Mayor and City Council, until' such payment or tender. By the terms of the contract, as evidenced by the advertisement, the purchasers were notified of the contingent character of the transaction, and bought an inchoate interest. The payment of the benefit dues assessed on the lot bought by the relator, did not in any way affect the title, but was only a part compliance with the terms of sale as between the Commissioners and the relator. The collection of any part or the whole of the benefits assessed, prior to the actual payment or tender to the proprietors of damages assessed, could not change the relation-of the Mayor and City Councils to the proprietors.

The relator in this case, has no stronger claims upon the consideration of tlio Court, than the petitioner in the case of Graff against the Mayor & City Council of Baltimore, 10 Md. Rep., 551, the decision of which, based upon that of the Supreme Court, in the ease of the Balt. & Sus. Rail Road Co. vs. Nesbit, 10 Howard, 395, seems to us conclusive and controlling.

After quoting the propositions established by the Supreme Court, viz., that tho title to the land condemned did not vest in tho company until payment or tender of damages, and that the proprietors could not coerce the company into the adoption of the condemnation, this Court proceeds as follows:

“Now, if tho title does not vest in the city until payment or tender, and the owner could compel payment by legal process, there would be no mutuality. The city in ight be required to pay for land that it may never use or need, for the purposes of the Act. This certainly would be a hardship on the citizens of Baltimore, from which we think they should be relieved, by adopting the interpretation of the Supreme Court in the ease cited.”

“This may be a severe system of legislation, as was said, because it places tho property owner at the discretion, not to say tho caprice, of tho other party, by allowing it to condemn and afterwards abandon the property. But this construction is not likely to work so much injustice as that contended for hy the appellant, because by the latter, tho city is deprived of all choice of location after condemnation is once made and affirmed, no matter how great the necessity might be afterwards for adopting another, even if the owner of the land condemned had not sustained any damage by the act of the city in making the condemnation.”

* * * * * * *

“The Act of Assembly has not made the inquisition and confirmation obligatory on the city further than this, that they ascertain the damages to he paid. If there be injustice in this, as alleged in the present case, the fault is in, the law, and is not to be imputed to those who administer it.” 10 Md. Rep., 552, 553.

Regarded in their legal character, the proceedings of the Commissioners under the ordinance of 1850, are a substitute for the inquisition of a jury, to ascertain the actual cost of any jDrojected improvement, and have no further effect.

If the Courts will not coerce the corporation to adopt the condemnation, at the instance of the proprietors, who are unwilling vendors, they would not at the instance of purchasers buying an imperfect title with full knowledge of the facts.

■The mandamus in Graff’s case, was to compel the Mayor and City Council to provide or procure funds for payment of his claims.

In this, the relator prays the Collector may be commanded forthwith to proceed to collect the benefit dues remaining unpaid, and those the amounts whereof he may, under the said ordinance ior repeal, have refunded, and forthwith advertise for sale to satisfy said dues “as pore-scribed by the ordinance of 1850,” etc., and in all respects proceed as if said ordinance of repeal had not passed; that the Commissioners or Appeal Tax Court proceed as if said ordinance of repeal had not passed, to do all duties and perform all services, and cause to be done all necessary work in removing buildings and otherwise, for effecting the actual xoidening and opening of Holliday street, as required by said ordinance, as if said ordinance of repeal had not passed.”

The petition proposes the Court should annul the ordinance of repeal, enforce the execution of the ordinance repealed, and compel the city to prosecute a work, the expense of which, in the language of the local Legislature, “is largely in excess of what was anticipated at the time of passing the ordinance” repealed, and "greater than any public benefit from the opening and widening of said street as projected by the ordinance, and which will entail a large special tax on the community.”

When it is remembered that the sale under which the relator claims, was required by ordinance No. 17, of 1850, sec. 7, to be made before (he Commissioners proceeded to assess the amount of damages and expenses; that those were yet to be ascertained, hud the consummation of the contract between the Commissioners and the vendees expressly ■depended upon the ability of the former to deliver possession, which could not be done until the proprietors were satisfied, that the Mayor and City Councils could not know ■the aggregate of expense until all the preliminaries prescribed by ordinance No. 17, of 1850, had been completed’, the reasons for holding all these proceedings, as provisional ■and revocable, are obvious and irresistible.

The proposition, that any purchaser under such proceedings can compel the corporation to persevere in the prosecution of what, in the judgment of its legally constituted' directors, is detrimental to the community they represent, is so bold and momentous as to require the highest judicial ■authority to maintain it. The sanctity of contracts is to be upheld and vindicated with the utmost vigilance. However high the contracting parties, none should be permitted to violate them with impunity. But the object and character of the parties entering into it, are elements of the contract, and limit its operation.

The Mayor and City Council are' but trustees of the public; the tenure of their office impressed their ordinances with liability to change. They could not, if they would, pass an irrevocable ordinance. The corporation, ■cannot abridge its own legislative powers.” Goszler vs. Corporation of Georgetown, 6 Wheat., 597. Their contracts, ■when consummated and within their chartered powers, must bind them and their successors, whatever be the consequences.

It is a high exercise of judicial discretion, to determine when public policy, justice and good government require the specific execution of a contract made by municipal corporations, and to enforce the same by summary process. The writ of mandamus is a summary remedy, for the want of a specific one, where there would otherwise be a failure of justice. Runkel vs. Winemiller, 4 H. & McH., 448. Harwood vs. Marshall, 9 Md. Rep., 97. It is based upon reasons of justice and public policy, to preserve peace, order and good government. It is compared to a bill in equity for specific performance. Ibid., Evans’ Frac., 4Q4. Not a writ of right, it is granted not as of course, but only at the discretion of the Court to whom the application is made, and this discretion will not be exercised in favor of applicants, unless some just or useful purpose may be answered by the writ. Angel & Ames on Corp., sec. 698, and authorities there cited.

• If this were, in form and in fact, a bill for specific performance, between individuals or private corporations, requiring the exercise of the ordinary powers of a Court of Equity in such cases, we cannot perceive in the allegations or evidence such circumstances as would entitle the relator to relief.

But when it is an application for summary proceedings against a great municipal corporation, with a local legislature, whose deliberate action it proposes to annul and set aside, and requiring private property to be appropriated to public use, against the expressed will of that public, highways to be opened, and buildings to be destroyed in a densely populated city, it does not present those conditions prescribed by the authorities, to entitle it to favor.

It would be perverting the great principle of social organization, to require the public good to be sacrificed for the advantage of one or more citizens. If the relator is damnified by the failure of the city to execute its contract, she has an ample remedy at law .for any loss she may have sustained. It does not follow, because the contract is not specifically enforced, the parties are released from its obligations.

( Decided January 22nd, 1863.)

There are some prominent points of this case, decided by the learned Judge below, which we have not enlarged upon. This opinion is so cogent, clear, comprehensive and well sustained by authorities, that it is unnecessary for this Court to do more than refer to it, as a sound exposition- of the law, in which we entirely concur.

Decree affirmed.-

Note by Reporter.—The cases of The State, rel. of the' Riders, Deacons and Trustees of the German Reformed Congregation of Baltimore Town, vs. John J. Graves, et al., and State, rel. of William W. McClellan, vs. John J. Graves,et al., were argued jointly with the above. The points arising in the three cases being substantially the same,- the decision in the above case applies to all of them.. *