Page v. Mayor, 34 Md. 558 (Md.)

Grason, J.,

delivered the opinion of the Court.

Under ordinance 7, of 1869, entitled “An Ordinance to condemn and widen Light street, <fec.,” 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 pro

eeedod 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, au 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 the counsel for the appellee did not attempt to controvert this in his argument in this Court, In overruling the motion to quash, the Court below assigned, as its only reason therefor, that the jurisdiction of that Court, upon an appeal from the Street Commissioners, is special and limited, and confined to a review of the assessments made by them, and that it has no authority or jurisdiction to review their proceedings in other respects, and stated, in its opinion, that if the Mayor and City Council, or the commissioners, have exceeded their authority or otherwise violated the provisions of the Acts of Assembly, relief can be had only in a Court of Equity. There is no doubt that, where an ordinance is void, and its provisions are about to be enforced, any party, whose interests are to be injuriously affected thereby, may, and properly ought, to go into a Court of Equity, and have the execution of the ordinance stayed by injunction. This course of proceeding has been sanctioned and approved by this Court in numerous cases, of which it is only necessary to cite Holland vs. the Mayor and C. C. of Balto., 11 Md., 187; Bouldin vs. Mayor and C. C. of Balto., 15 Md., 18; Mayor & C. C. of Balto. vs. Porter, 18 Md., 284. But where there is an appeal' given to the parties, to be affected by proceedings of Street Commissioners, any irregularities in the proceedings, or in the qualifications of the commissioners, are open upon appeal, and the appellate tribunal is the proper one to review and. correct them. In the case of The Methodist Prot. Church vs. The Mayor & C. C. of Balto., 6 Gill, 402, a bill for • an injunction was filed, in which, among other things, it was charged that the Commissioners for Opening Streets had not given the notice required by law, before proceeding to widen the street in question, and upon appeal, Judge Dobsey, in delivering the opinion of this Court, said: “ To persons aggrieved by the proceedings of the commissioners, in cases like

the present, the legislative enactments upon the subject have provided the tribunal and the means of redress, and there only can it be successfully sought.”

The same doctrine was held in the case of The Mayor & C. C. of Balto. vs. Bouldin, 23 Md., 375, in which this Court say : “ The objections made to the legality and regularity of the proceedings of the commissioners under the second and fourth sections of ordinance Ho. 17, are such as could have been reviewed by appeal under the ninth section of that ordinance,” and refers to 8 Gill and quotes Judge Dorsey’s language as applicable to the case then under consideration.

One of the objections urged against the legality of the proceedings in that case was, that the commissioners had not given the required notice before proceeding to act, and that wras an irregularity which, this Court held, could be reviewed upon appeal. In the case of The Mayor & C. C. of Balto. vs. Porter, 18 Md., 301, while this Court decided that the proceeding in that case was properly in a Court of Equity, because the acts of the commissioners were void because the ordinance under which they acted wras passed without authority, yet this Court said, that where the commissioners act within the scope of their authority, and the acts complained of are irregularities, they are “ subject to be reviewed on appeal by the tribunal appointed by law for that purpose.” From these decisions, it is evident that the City Court, upon appeal from the Street Commissioners, has power and authority to review any irregularity in the proceedings of the commissioners, and, therefore, erred in declining to entertain the motion to quash, made by the appellant in this case. It, therefore, becomes necessary to determine whether the grounds set out in the motion to quash are good and sufficient. The first and second are, that legal notice was not given that an application would be made for the passage of the ordinance of the 20th of February, 1869, under -which the proceedings in this case were had. There was no proof whatever offered to show that the notice was not given as the

law requires, and in the absence of proof we must presume that the requirements of the law were complied with, and that the Mayor and City Council acted within their power and authority in passing the ordinance.

The third reason assigned is, that the commissioners did not severally take and subscribe the oath or affirmation before they proceeded to act as a board in the exercise of the powers confided to them, as required by the 2d section of Ordinance 26, of 1866. The Street Commissioners are officers of the city government, appointed annually as other city officers. See section 1 of Ordinance 26. Section 2 of that Ordinance provides that, in each and every case, before they shall proceed to act as a board in the exercise of the powers confided to them by that or any future ordinance, they shall severally take and subscribe the oath in that section prescribed. It thus appears that, although holding their office for one year, they are required to take and subscribe the oath in each and every case in which they may be required to act. The 6th section enacts that, whenever they may thereafter be required by ordinance to open, extend, widen, straighten or close any street, Ac., in whole or in part, they shall give at least thirty days’ notice, in at least two daily newspapers of the city, of the object of the ordinance, under which they are about to act, and the day, hour and place of their first meeting under said ordinance. An examination of the provisions of these two sections leads irresistibly to the conclusion that, as officers of the city government, they have authority to give the notice before taking the oath, and that if they take and subscribe the oath before acting in the particular case, the requirements of the ordinance are fully gratified. If they met and qualified before giving the notice, the notice given would be of their second, instead of their first meeting as directed by the 6th section. It appears from the book of proceedings of the commissioners, filed in this Court by the agreement of the parties, that the oath severally taken and subscribed and the notice given by them are in all respects in conformity with the requirements of the law.

The clerk and surveyor employed by them also took and subscribed the oaths required to be taken and subscribed by them respectively, at the same time the commissioners did, and what has been said with respect to the qualification of the latter applies with equal force to the qualification of the former.

The only other ground assigned for quashing the proceedings is that contained in the fifth reason, viz: “ that Light street wharf, from Pratt street to Lee street, for many years prior to the passage of the ordinance of the 20fh of February, 1869, under which the proceedings in this case were liad, was and liad been and still is a public highway, having been condemned by virtue of an Act of Assembly passed in 1798, ch. 45, and by Act of 1805, ch. 84.” The Act of 1796 authorized and empowered the owners of lots at the head of the basin and binding on Light street, to make out and extend wharves into the water opposite their respective lots, to a line drawn from the east side of Light street to the east side of Forest (now Lee) street, and provided that “ eighty feet of said wharves, when so made out and extended, at the end thereof, parallel with the line of Forest street, shall be deemed, taken and considered as a public highway forever thereafter, reserving nevertheless to the proprietors of said wharves the benefit and advantage of the wharfage thereof, under the limitations aforesaid.” The Act of 1805 contained similar provisions, but limited the highway to sixty feet instead of eighty, and also reserved the benefit and advantage of the wharfage to the proprietors. It is very evident from these Acts that the whole of the rights and interests of the proprietors of the wharves, thus made out and extended, were not condemned for the public use, although sixty feet of the wharves wore declared to be a public highway; for even over the sixty feet the proprietors were expressly authorized to exercise the rights of wharfage. The right to use the wharves and receive the wharfage having been reserved to the owners, that part of them, declared to be a public highway, was a public highway in a qualified sense and to a limited extent

only as their use as wharves must, necessarily, have so interfered with the rights of the public as to have rendered them of little use or value as a highway. The damage ¡fiat, used and referred to in the argument of the case in this Court, shows that only twenty-six feet (including ten feet for a foot-way) were to be used exclusively as a street, and that the remainder was to be used as yrharves only, and it may therefore be inferred that this was a compromise of the conflicting claims of the wharf owners and the city. The Acts of 1796 and 1805 show that the highway by those Acts established over the wharves was incomplete, qualified and limited. It was therefore competent for the city authorities, for the purpose of having a street at that place adequate to the wants of the public, to condemn the interests and rights still remaining in the proprietors of the wharves. We think that there is therefore no force in the objection contained in the fifth reason, and that the motion to quash ought to have been overruled.

(Decided 22d June, 1871.)

From what has already been said, it follows that there was no error in the rejection, by the Court below, of the evidence set out in the two bills of exception. The object in offering that evidence was to show that the wharves to be condemned under the ordinance of 1869, had already been declared to be, and recognized and treated as a public highway, and that there was therefore nothing to be condemned under the ordinance of 1869. We have shown, however, that there were still proprietary rights in the wharves liable to condemnation and the evidence was therefore inadmissible, and was properly rejected.

The Court below erred in supposing it had not jurisdiction, upon an appeal from the Street Commissioners, to review any irregularities in their proceedings; but as the motion to quash ought to have been overruled, and as the evidence offered by the appellant was inadmissible, the judgment must be affirmed.