State v. Mott

Alvey, C. J., delivered the opinion of the Court. Whatever power can be properly exercised by the municipal authorities of the city of Baltimore over the rights and property of the citizen, under the denomination of police regulations, must be derived from the Legislature of the State. It must be by express grant, or by fair and reasonable intendment; for otherwise the trades and business of the people would be at the mercy, and be made dependent upon the caprice, of those who might ex — 304 — ercise municipal power, instead of being governed and regulated by the general law of the land. Within the power granted, the degree of necessity or propriety of its exercise rests exclusively with the proper corporate authorities; but in all cases the power exercised, or attempted to be exercised, must depend upon the nature and extent of the power granted, and whenever the question of the existence or limit of power is raised, it becomes the plain duty of the Courts to see that the corporate authorities do not transcend the authority delegated to them. The Legislature has delegated to the city of Baltimore very large and ample powers to preserve health, and to prevent and remove nuisances, and also to regulate the places for carrying on lawful but oifensive trades; but this power, as ample as it is, does not authorize the exercise of an unlimited control over the trades and business occupations of the people. The terms of the grant of power by the State to the city are, that the Mayor and City Council shall “ have power to pass ordinances to preserve the health of the city, to prevent and remove mdsances, and to prevent the introduction of contagious diseases within the city and within three miles of the same, and may regulate the places for manufacturing soap and candles, the erecting of slaughter-houses and distilleries, and where every other offensive trade is carried on.” Code, Pub. Local Laws, Art. 4, sec. 797. It was under the power thus granted that Ordinance No. 118 of 1882, was passed, to be added as section 43J to Art. 23 of the City Code. That ordinance provides “that from and after May 1st, 1883, it shall not be lawful for any person or persons, or body corporate, to work, operate, or continue in use, for the purpose of burning oyster shells or stone lime, any kiln situated or erected within the limits of the city of Baltimore, under a penalty of twenty dollars for each and every day such kiln may be — 305 — so worked, operated or continued in use, for the purpose •aforesaid.” It will thus be perceived that by this sweeping ordinance the entire industry of lime burning within the limits of Baltimore is at once forbidden and destroyed. Though the kilns may be on the remotest outskirts of the city, and beyond the reach of habitation, where they are not now, and may never become nuisances, and from whence they could in no manner affect the health of the city, they are all declared to be unlawful, and are forbidden to be continued. A stronger exertion of municipal power has seldom been attempted to be exercised over the property and the law'ful pursuits of the citizen; and to support the ordinance by which such results are designed to he effected, the authority in the city must appear to be plain and unmistakable. The indictment in this case was found under Act of 1880, ch. 211, for the alleged violation of the Ordinance No. 113, just recited; and it simply charges, after reciting the ordinance verbatim, that from the 1st to the 18th of May, 1883, the defendant “ did unlawfully work, operate, and continue in use, a certain kiln, situate ivithin the limits of the city of Baltimore, for the purpose of burning oyster shells and stone lime, contrary to the ordinance in such case made and provided.” There is nothing alleged to •constitute the lime kiln of the defendant a nuisance, nor is it alleged that it is a nuisance per se, either as to health, comfort, or danger to property. It is simply alleged, as will be observed, that the defendant operated his lime kiln within the limits of the city, contrary to the terms of the ordinance, which absolutely prohibits the operation of any lime kiln, without reference to its local surroundings, within the limits of the city, after a certain date. The defendant demurred to the indictment, as it was his right to do, and thereby admitted the fact that he had operated his lime kiln as charged. Indeed, he was' re — 306 — duced to the alternative of either denying the fact that he-had operated his lime kiln after the time designated in the ordinance, or taking issue in law as to the validity of the ordinance. He made the latter issue, and that presented the question, whether or not it was competent to. the Mayor and City Council, by ordinance, under the-authority delegated to them, to prohibit absolutely, without condition or qualification, the burning of lime within the limits of the city of Baltimore. Now, it is well known and understood, that the burning of lime is not an unlawful business or trade, and is not a nuisance in its nature per se, irrespective of the location. On the contrary, it is one of a multitude of most useful and necessary processes for the benefit of society' and for its material improvement, hut which may, from mere local conditions, become nuisances. Or, as said in Aldred’s Case, 9 Co., 59 a, “the building of a lime kiln is good and profitable; but if it he built so near a house that when it. burns the smoke thereof enters into the house, so that, none can dwell there, an action lies for it." But neither in the ordinance, nor in the indictment founded thereon, is there anything apparent that justifies the conclusion that all the lime kilns within the limits of the city, and which have been prohibited operation, are in fact nuisances. And not being nuisances in their nature, irrespective of their local surroundings, it is very clear that there has been no authority conferred upon the Mayor and City Council, to make them nuisances, either to health, comfort, or property, by simply declaring them so. In the absence of such express authority, the principle is too well settled to require the citation of authorities for its support, that a. particular use of property declared a nuisance by an ordinance of a municipal corporation, does not make such use a nuisance, unless it he so in fact, according to the common law or statutory definition of nuisance. The ordinance in question however, does not in terms declare lime kilns — 307 — within the limits of the city nuisances. It simply prohibits their operation altogether, but upon what particular ground does not distinctly appear. But the provision in the charter only confers authority “ to prevent and remove nuisances;” and the mere possibility that all the lime kilns within the limits of the city may, in the future, become nuisances, does not justify the city in prohibiting the business entirely in anticipation. Upon any such principle of action by the city, many of the most valuable and indispensable trades might be stopped. Whether a particular lime kiln is a nuisance or not, is a mixed question of law and of fact; and an indictment for maintaining such kiln as a nuisance, should charge the facts necessary to bring it within the definition of a nuisance, or, at least, within the power conferred by the statute, to suppress it. Here the power conferred by the statute and • attempted to be executed by the general prohibitory ordinance, cannot be taken to authorize the extra judicial condemnation and destruction of that as a nuisance which, in its nature, situation, or use, is not or may not be such. 1 Dillon on Mun. Corp., (3d Ed.,) sec. 374, and the cases there cited; Wood’s Law of. Nuisances, sec. 740. To have adjudged the indictment good, would have required the Court to assume that all the lime kilns within the limits of the city were nuisances per se, without regard to their location, or that they were allowed by the statute, to be condemned unconditionally. This the Court would not have been justified in doing, as matter of law; nor would the Court have been justified in assuming that all such lime kilns would necessarily become nuisances, and were therefore subject to the power of prevention. In the case of Glenn vs. Mayor, &c. of Baltimore, 5 Gill & John., 429, this Court, in speaking of the power of the city authorities to abate nuisances, said : “ Thus, whether the various manufactories spoken of in the 17th section of the ordinance, are calculated to endanger the habitations, — 308 — or the health of the inhabitants, .may be a matter of science, upon which possibly a diversity of views might be entertained, and thus the legitimate exercise of the power might become a mixed question of law and of fact. The city authorities might pronounce that to be a nuisance which evidence might show was not a nuisance. They might prohibit a particular occupation upon the ground that it increased the danger of fire, when the reverse could be shown by the concurring testimony of all men. The power, therefore, or the want of power, to suppress a particular occupation as a nuisance, or as a means of preventing fire, should be shown in proof,” And if required to be shown in proof, upon every principle, in a criminal proceeding, should the facts, to constitute the prime, be alleged in the indictment. The party proceeded against should have the liberty and the opportunity to controvert the facts. He is not to be concluded on the question of power, simply by the action of the city' authorities in the adoption of the ordinance. Nor can the ordinance in question be sustained under that clause of the section of the charter, before recited, which authorizes the city to “ regulate the places for manufacturing soap and candles, etc., and where every other offensive trade is carried on.” That power assumes the existence of such trade, and that they may be carried on within the limits of the city. The power delegated is simply to regulate the places where they are carried on, and not to forbid their being carried oh, or to destroy them altogether. It is assumed in the power granted that such trades will not be carried on under such condition of things as to constitute them nuisances, and thus bring them within the scope of the general power to prevent or remove nuisances; but that they will be carried on at proper places, subject to the regulating power of the city. And such being the case, it is well settled that a power simply to regulate does not — 309 — embrace a power to prohibit or destroy a trade or occupation. 1 Dillon on Mun. Corp., (3d Ed.,) sec. 325; Radecke’s Case, 49 Md., 217. If therefore lime kilns be classed among the offensive trades, subject to have the places of their operation regulated by the city, they are not liable to be prohibited, unless they be nuisances in fact, according to legal definition. On the contrary, the very power of regulation is a full recognition of the legal right to maintain the kilns within the city, unless and until they become nuisances in fact. (Decided 8th February, 1884.) Upon the whole, we are of opinion that the Ordinance No. 113, designated as section 43 J in Article 23 of the Baltimore City Code, is void, for the reasons we have stated; and consequently the demurrer to the indictment, founded upon such ordinance, was properly sustained by the Court below, and we must, therefore, affirm the judgment. Judgment affirmed.