Horn v. Mayor of Baltimore

BbeNT, J., delivered the opinion of the Court. This suit was instituted against the Mayor and City Council of Baltimore, to recover for damages done to a certain -lot of ground, belonging to the appellant, by reason of the grading of North avenue, which so intersected it as to impair, if not wholly destroy its value. The decision of this Court in Porter’s Case, (18 Md., 284,) relieves us from the necessity of examining the various laws and evidences cited in the argument for the purpose of ascertaining the power and authority of the appellees to grade the avenue in question. It was there held, that they had no siich authority under the law, and that the acts done by them in the direction and prosecution of the work were illegal and void. The declaration also in this case avers, that the injury complained of was committed “ in the exercise of a pretended corporate power and authority to grade said avenue by its public officers and agents, but without any such authority,” so that the only question presented for our decision, is the liability of the appellees for damages resulting from an act done colore officii, but void because without authority and beyond the scope of their power. In determining this question, the relation which those who fill the offices of Mayor and City Council hold to the corporation, must be kept in view. The inhabitants of the city of Baltimore, incorporated under the name of “ the Mayor and City Council of Baltimore,” are authorized to select a Mayor and members of the City Council as the medium and organ [223] through which their corporate powers are to be exerted. These persons thus selected become the agents and representatives of the corporators. As such they are entrusted with certain powers, which are specially defined and limited, and which can be exercised by them in the manner and form only prescribed by law. To the extent alone of these powers, can they bind their principal, and so long as they keep within them, the corporation is responsible for their acts. But whenever they transcend them, their acts, although done colore officii, and upon pretence of law, are no more binding upon the corporators than the acts of an agent in any other case can bind his principal, Avhen done beyond the scope of the authority conferred. "We think the law applicable to this case is properly stated by Dekio, C. J., in Howell and Christopher vs. The City of Buffalo, 15 N. Y. Rep., 522. He there says: “ Where the officer so far departs from his duty that the law adjudges the whole act void, the individual, and not the community, should answer. * * * If void, it was not a public or a corporate act. It was the deed of individuals professing and probably believing that they acted by the authority of law, but in truth proceeding upon their own responsibility, without any lawful authority whatever. As they were acting without the scope of their public agency, this concluded nobody but themselves.” The same doctrine is also very clearly laid down in the case of Harvey vs. The City of Rochester, 35 Barbour, 181. The case of Thayer vs. The City of Boston, 19 Pick., 511, which was relied upon in the argument by the appellant’s counsel, upon a careful examination will not be found in conflict with those cited above. It belongs to that class of cases in which municipal corporations have been held liable for to?is committed by an irregular and illegal exercise of a power which the corporation possessed. They have no application to the case before us. Here the injury complained of W'as not occasioned by an act done within the scope of the power and authority of the corporation, but was the result [224] of an act void and illegal because done without power or authority. Had the grading of North Avenue been within the power possessed by the corporation, and the injury to the plaintiff’s property resulted from the careless or improper manner in which the work was done, it would have presented a very different question, and an action for such injury could have been maintained. It is wholly immaterial whether the Mayor and City Council by a subsequent ordinance adopted and ratified the grading of the avenue. If the act was void, because ultra vires, and they had no power to authorize it before it was undertaken and commenced, they certainly had no power to adopt it after it was done. (Decided 25th February, 1869.) We think there was no error in the instruction given by the Court below, and the judgment must be affirmed. Judgment affirmed.