Maryland Trust Co. v. Mayor of Baltimore

Boyd, C. J., delivered the opinion of the Court. This is the third appeal to this Court in reference to the .assessment for alleged benefits to the owners of properties by reason of the improvements over, along and near Jones’ Palis, now known as the Eallsway, made under the authority of Chapter 110 of the Act of 1910 (p. 639), and ordinances of The appellee passed under that Act. The first was that of the P. B. & W. R. R. Co. v. Baltimore, 121 Md. 504 , and the ■other was that of the Safe Deposit and Trust Co. v. Baltimore, 121 Md. 522 . In Bond v. Baltimore, 116 Md. 683 , the Act itself and the ordinance passed in pursuance thereof were attacked, but both were sustained.

The benefits assessed .against the present appellant are $94.00, and it is admitted That its property will receive benefits from the condemnation ⁴² and opening of the Fallsway to the extent of that amount. While the amount involved in this appeal is small, we are informed that it is a test case—there being about 170 appeals pending in the lower Court, some of which relate to awards of damages. The appellant filed a petition in the lower Court in which it was alleged that the benefits assessed were largely in excess of the aggregate amount of damages and expenses and prayed the Court to “decrease, proportionately, all assessments for benefits made by said Commissioners for Opening Streets, as shown by their aforesaid return, the said assessments to be decreased to such extent that the total amount of the benefit assessments shall not exceed the aggregate amount of the dahüages and expenses, to wit, the sum of $135,835.14.” The Court refused to grant that prayer of the petition, and an exception was taken to that ruling, which constitutes the first bill of exceptions. The appellant offered a prayer, which was refused, but we understand the exception taken to that ruling is not pressed.

The Court granted two prayers offered by the City, which are as follows: First, “The Court rules as a matter of law, that it being admitted by agreement of counsel that the petitioner’s property is actually benefited by the opening of the Fallsway to the amount of $94.00, the inquisition of the Court sitting as a jury should be for the sum of $94.00 benefits in this case.” The second was, “The Court rules as a matter of law that it is impossible now to ascertain the total damages and expenses of opening the Fallsway, and therefore the Court can not cut down the benefits upon the petitioner, upon the contention that the aggregate benefits exceed the total damages and expenses.”... The appellant excepted to the granting of those prayers, and the action of the Court in granting them is presented by the second bill of exceptions. The City’s position is that, it being admitted that the appellant’s property was benefited to the amount of the assessment, it makes no difference to the appellant whether the ⁴³ aggregate benefits assessed exceed or fall short of the cost of the improvement, because the appellant can not he injured so long as its assessment does not exceed the actual benefit received by it. It also denies that the aggregate of the benefits assessed in this case exceeds the real cost of the improvement, and contends that no means are provided by law for doing what the petitioner asked the Court below to do.

As the principal question argued, which we understand to be involved in all of the appeals in the lower Court on benefits, is whether under the Baltimore Charter the benefits can exceed the damages and expenses, we will first consider that. As decisions already rendered by this Court on the subject can not be properly understood, unless we examine the statutes in force when they were made, it will be necessary to refer to them at some length. Alexander v. Baltimore, 5 Gill, 383 , is a leading case. The Act of 1838, Chapter 226, gave the Mayor and City Council of Baltimore power to provide for laying out, opening, extending, etc., in whole or part, any street, etc., within the bounds of the city; to provide for ascertaining whether any, and what amount in value of damages will be caused thereby, and what amount of benefit will thereby accrue to the owner, etc., of any ground within or adjacent to the city, for which such owner ought to be compensated, or ought to pay compensation, “and to provide for assessing and levying, either generally on the whole assessable property of said city, or specially on the property of persons benefited, the whole or any part of the amount of damages and expenses which they shall ascertain will be incurred in locating, opening * * * any street, square, lane or alley within said city.” An ordinance (Bo. 10) of the city, passed March 9th, 1841, to carry into effect the powers granted-by the statute, directed the Commissioners, after ascertaining the amount of damages and expenses to be incurred in any case, to assess the same on all the ground and improvements within the city, the owners of which, as such, the Commissioners decided to be benefited—apportioning them in just propor ⁴⁴ tion, according to the value of the benefit,, etc. The Act and ordinance were sustained in that case.

We do not understand it to be denied by the City Solicitor that under that Act the aggregate of benefits assessed •could not exceed the total cost of the improvement, but his contention is that originally by an ordinance of 1866 (Ho. 26; approved April 3, of that year), and afterwards by the present charter (Act of 1898, Chapter 123), the provision was changed, and that now the Commissioners for Opening Streets are no longer limited in making assessments for benefits to the aggregate of damages and expenses. We will quote from that Act later. He further contends that the question has been settled by the decisions of this Court. The case of Hawley v. Baltimore, 33 Md. 270 , is the principal one relied on.

Expressions used in that opinion, if taken alone, might furnish some ground for that contention, but a careful examination of the whole opinion and the ordinance referred to in it, will show conclusively that it was not meant to decide, and the Court did not decide, what is now contended for. It is said that the ordinance of 1866,. which was under consideration in Hawley's case, changed the law in force when Alexander v. Baltimore was decided, but while it is true it did make some changes in existing ordinances, it is equally true that it did not, as to affect the question now under consideration, and, moreover, that it could not have done so. The statute in force when Hawley's case was decided, and when the ordinance of 1866 was passed, was section 837 of Article 4 of the Local Code of 1860. ■ The provisions in respect to this question were the same as in -the Act of 1838. Indeed, that statute is precisely the same in the Code of 1888, Article 4, section 806, excepting the Act of 1878, Chapter 143, provided that the appeals authorized should be taken to the Baltimore City Court, instead of .to. the Criminal Court or the Superior Court as the Code of. 1860 directed and it so continued until the Act of 1898.; By it, as we have seen, the City was authorized, “to provide for. ⁴⁵ assessing and levying, either generally on the whole assessable property of said city, or specially on the property of persons benefited, the whole or any part of the amount of damages and expenses, which they shall ascertain will he incurred,” etc. Manifestly the city could not, under that power, assess, and collect benefits for more than the whole amount of damages and expenses, for the simple reason that it was limited to “the whole or any part.” And if the ordinance of 1866. had attempted to do so it would have been invalid, hut the change made by that ordinance was that, instead of requiring the benefits to he so apportioned as to cover the whole amount of damages and expenses, it simply authorized the assessment of the direct benefits each one received, and if there was any deficiency the city was required to pay it.

So when we find in Hawley’s case the statement that “the Commissioners, whose duty it is to assess benefits arising from the opening of the streets, are authorized in making such assessment to assess only the direct benefits; these are such as actually and substantially accrue to the property holder, and are to be made without reference to the costs and expenses-of opening the street,” it can not he properly said, that the-Court intended hv that language to hold that the city could do what even a cursory reading of its charter powers before the Court would show it was not authorized to do. The Court was- speaking with reference to the case before it, and the-facts were that the Commissioners awarded the amount estr mated as damages to Philip Hiss, and- assessed upon all the-adjacent ground and improvements certain sums amounting-in the aggregate to a sum equal to the estimated damages and expenses for benefits, as will he seen by the report of the case. There was no such question as that now being considered before the Court. The opinion went on to say, “The-ordinance alluded to changed the old system of assessment, under -which the benefits assessed were required to be so-apportioned as to cover the whole amount of expenses in ⁴⁶ curred.

Then each party assessed had an interest in the assessment of another, whether for benefits or damages. But under the present ordinance, no such interest exists. Each assessment must stand upon its own merits. The benefits assessed are not required to' cover the expenses of opening a street.” If the City could have assessed “specially on the property of persons benefited” more than the damages and expenses, why could it not have assessed more, under the other provision in the statute “on the whole assessable property of said city” ?

Yet will anyone say that if the amount of the damages and expenses of an improvement had been ascertained to be $10,000.00, the city could have levied $15,-000.00 for that improvement ? The Court only meant to say, what we have in effect since said, that under that ordinance the jury only passed on the assessment for benefits (when they were considering benefits) which had accrued to the particular property before them, and they were to assess such direct benefits as accrued, and not, as they would have done under the former ordinance, apportion the whole amount of damages and expenses between all of the properties benefited. But whether the aggregate of benefits could exceed the aggregate of damages and expenses was not raised or suggested, and hence there was no occasion to pass on it. Zion Church v. Baltimore, 71 Md. 524 , also cited by the appellee, simply decided that it was immaterial who held the title, as the assessment was made on the property without any reference to the state of the title.

Nor is there anything in Friedenwald v. Baltimore, 74 Md. 116 , which sustains the City’s contention. 'That case decided that each owner of property affected had the right to a separate trial, and it was error to consolidate the twenty appeals, over the objection of the owners of property assessed for benefits. The Court concluded by saying: “Under the system now in force in Baltimore City, ‘each assessment must stand upon its own merits.’ It was so held in Hawley’s case, where it is said: ‘The benefits assessed are not required to cover the expenses of ⁴⁷ opening a street. So far as they may go, they are to he appropriated to that purpose, hut any deficiency in the amount is required to be paid by the city.’ ” There is no suggestion of a right in the city to assess more benefits in the aggregate than the damages and expenses. In the excellent work of Mr. Ritchie on the “Laws of Municipal Condemnation in Marylandf’ in section 130, he refers to Hawley v. City and Friedenwald v. City, and what he says is a correct statement based on those authorities, but he was not considering or referring to such a question as we now have before us, and of course expressed no opinion on it.

We said in Baltimore v. Smith & Schwarz Co., 80 Md. 458 , that: “It seems clear that the two transactions of fixing damages or compensation, and of assessing benefits, are separate and distinct.” We held that under the law as it then stood, an appeal from the amount of benefits assessed did not even bring up for review the damages allowed the same property owner—each case was on appeal to be tried separately, and the amount of damages or benefits, as the case might be, determined separately. But there is nothing in that case which intimates that the benefits in the aggregate can exceed the damages and expenses. As we have said in speaking of Hawley s Case, the statute, of course, would not have permitted it, if it had been attempted, regardless of the further objection whether such a statute could be validly passed. When that case was‘decided, the Act of 1878, Chapter 143 (Code of 1888, section 806), was in force.

The decision therefore could not have meant that the benefits could, in the aggregate, exceed the damages and expenses, and no such question was suggested. On the contrary, the opinion itself shows that the benefits to be reviewed were only intended to be equal to the damages and expenses. After saying that the commissioners were required to fix the compensation to be paid to the owners for the ground or improvements to be taken, we continued: “They then ascertain the aggregate of such damages or compensation, and having ⁴⁸ added the estimated expenses of the proceedings, they are prepared to furnish the city with the cost of o-peráng the street. That part of their work is completed (subject, of course, to their right of revision, appeal, etc., as provided by the ordinance).

The next step taken is to determine where the money is to come from.” Does anyone doubt what money was meant? In the connection it was used, it only could mean the money with which