Mayor of Baltimore v. Maryland Trust Co.

Thomas, J., delivered the opinion of the Court. On the 27th of January, 1913, the Maryland Trust Company appealed from the action of the Commissioners for Opening Streets in the matter of condemning' and opening the 'Fallsway, and alleged in its petition that the benefits assessed against it in reference to its lot, designated as lot No. 1162, in the return of said Commissioners, was excessive, and that the Commissioners for Opening Streets had no authority to make any assessments in the matter (1) because under the Act of 1910, Chapter 110, (p. 639), all expenses in connection with the acquiring of land for said highway were to he paid out of the loaii authorized by that Act. (2) Because the Commissioners for Opening Streets was hot the ³⁸ proper city agency for the condemnation of land, etc., for said highway, the same having been committed to the Commission on City Plan. (3) Because Ordinance Eo. 70, approved February 9th, 1912, specifically referred to Chapter 110 of the Act of 1910, which provides for the opening, etc., of said highway under the direction of the Commission on City Flan.

(4) Because the damages and benefits awarded by -the Commissioners for Opening Streets were illegally awarded, in that the property of the city within the assessed area, from which, it derives revenue, was nm assessed for benefits. The petition prayed the Court to review the decision and awards of the Commissioners for Opening Streets; to determine whether the Commissioners for Opening Streets had any authority in the matter, and whether' all the expenses incident to the opening of said Fallsway .were not to he paid out of the loan authorized by the Act of 1910. Thereafter, 'on the 15 th of May, 1914, the Trust Company filed in said case a petition alleging that when the Commissioners for Opening Streets made their final return, in the matter, their statement of damages awarded, expenses incurred and benefits assessed erroneously showed the aggregate amount of damages awarded and expenses incurred in said condemnation proceedings to be the sum of $434,943.89 and the total sum of benefits assessed to he $393,358.75, and that upon inspec-" tion it was discovered that the Commissioners had unlawfully and improperly included among the expenses of said proceedings the following items: “Expenses of Commission on City Plan, $6,108.75; estimated cost of Viaduct, $225,000.00-; estimated cost of grading, $6-8,000.00”; that in the case of Brown, trustee, v. Mayor and City Council of Baltimore, the Baltimore City Court had. ordered those items to he stricken ■ out of said return, and the calculations of the Commissioners altered accordingly"; that when said items shall have been stricken out in accordance with said order the aggregate amount of damages and expenses will he reduced to the sum of $135,835.14; that the said amount of benefits assessed being largely in excess of the amount of damages and ex ³⁹ penses, the benefit assessments, to the extent of such excess, are illegal and void. The petition prayed the Court to decrease proportionately all assessments of benefits so that the total amount of benefit assessments would not exceed the aggregate amount of damages and expenses.

In its answer to the petition of the Trust Company of May 15th, 1914-, the city alleged that the report of the Commissioners for Opening Streets did not show the entire cost of opening the Fallsway because only nominal damages were allowed by the Oocm|mis>sioners for the bed of Jones’ Falls, and that by adding the value of the bed of the Falls the real cost of the improvements would exceed the aggregate amount of benefits assessed; that a large number of appeals were then pending from damages as well as benefits, and that until they were disposed of no one could say what the entire damages and expenses will be; that the Commissioners allowed only nominal damages for the bed of the Falls on the theory that the bed belonged to the city, and that if the contrary should he determined in any of the appeals from damages, the damages and expenses would exceed the benefits assessed by the Commissioners', and that the total amount of damages and benefits was immaterial in this case because the sole question in the case is the amount that the appellant is actually benefited by the opening of the F allsway. For the purpose of having the Court below determine, without delay, “certain questions of law affecting the condemnation proceedings,” the parties on May 28th, 1914, filed an agreement that the property of the Trust Company was benefited to the extent, of the assessment of $94.00,'and that no testimony as to the amount of benefits would- be produced.’ The case was submitted to the Court, without a jury, and the Court signed an inquisition assessing the benefits against the Trust Company at $94.00. The Cburt also signed an order that the three items, of expenses mentioned in the Trust Company’s petition of May 15th, 1914, be stricken from the condemnation hook for the opening of the Fallsway, and that the total damages and expenses shown by said book to be $434,- ⁴⁰ 943.14 be changed to $135,835.14. At the hearing the- Trust Company offered in evidence an agreement of counsel stating," among other things, that it appeared from the condemnation book returned by the Commissioners for Opening Streets that the damages awarded by the Commissioners amounted to $128,616.98, and that in the statement of expenses contained in said book, aggregating $306,326.91, were the three items referred to in the petition of the Trust Company of May 15th, 1914.

The agreement further stated that the aggregate amount of benefits assessed wia-s $393,358.75. The Trust Company also offered in evidence the proceedings in the appeal of Brown, trustee, to the Baltimore City Court from an assessment of benefits for the opening of the Fallsway, in which the Court passed the order referred to in the Trust Company’s petition of May 15th, 1914, directing the Commissioners to strike from the list of expenses the three items mentioned in said petition and to make the corresponding-change in the total. The city offered to prove that the value of 217 lots in the bed of the Fallsway (for which the Commissioners had allowed damages of $1.00 per lot), assuming the bed to be dry and at its original grade, would be $308,-162.00, and that if 'filled up and brought to the grade of adjoining lots, the value of said lots would be $356,724.00. The Trust Company objected to the evidence, and the Court sustained the objection, whereupon the city moved the Court to correct the book of proceedings of the Obmmis-sioners by inserting therein “among the damages,” “Value of the bed of Fallsway” $356,724.00, but the Court overruled the motion.

The city proved that the Sewerage Commission had brought the bed of the Falls to grade by constructing concrete tubes which furnished the foundation upon which the Fallsway pavement was laid, and then offered to prove that the cost of the tubes, “which were constructed for the double purpose óf carrying the water of Jones’ Falls to the harbor and furnishing a base for a street over the Falls,” was $1,059,771.55, but the Court, upon objection by the Trust Company, refused to admit the evidence. The city proved by Mr. Grannan, one ⁴¹ of the Commissioners, that the Commissioners made nominal awards of $1.00 for each lot in the bed of Fallsway believing that the Falls way belonged to the city; that the Falls was divided into a. large number of lots on the damage plat, and that he did not make any estimate' of the actual value of the Fallsway. It was admitted by the Trust Company that there were pending about one hundred and seventy appeals from the return of the Commissioners for Opening Streets, some of which related to awards of damages. The evidence being closed, the Court below refused to grant the prayer of the Trust Company in its petition of May 15th, 1914, and its action was made the subject of the first exception of the Trust Company.

The second exception was to the rejection of the Trust Company’s prayer, and to the granting of the following prayers of the city: “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 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 cannot cut down the benefits upon the petitioner, upon the contention that the aggregate benefits exceed the total damages and expenses.” On the 18th of June, 1915, the Trust Company entered an appeal from the “rulings, inquisition and judgment in” the case, and in disposing' of that appeal, Chief Judge Boyd, speaking for this Court (in 125 Md. 42 ), after stating that the first exception was to the refusal of the lower Court to grant the prayer of the Trust Company’s petition of May 14th, 1915, and after setting out the two prayers of the city referred to in the second exception, said: “The city’s position is that, it being admitted the appellant’s property was benefited to tbe amount of the assessment, it malees no difference to the appellant whether the aggregate benefits assessed ex ⁴² ceed or fall short of the cost of the improvement, because the appellant cannot be 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.” After discussing the question whether under the City Charter the benefits can exceed the damages and expenses, and after stating the conclusion of this Court that the Legislature had not authorized, and could not authorize, the city to assess benefits for such an improvement in excess of the aggregate damages and expenses^ he said further: “It only remains to pass on the. rulings of the Court, and then determine how relief can be obtained, if in point of fact the benefits will exceed the damages and expenses in making, this improvement. We have no means of determining that ques^ tion of fact under present conditions, and therefore will express no opinion on it, but notwithstanding what we have said, we must affirm the action of the lower Court. It is admitted in the record that there are now pending in that Court about 170 appeals from the return of the Commiesioners, some of which relate to awards of damages.

It is therefore ■ impossible to now know what the result will be when the appeals are all determined. It will have to be determined what benefits each one should' be assessed with, regardless of what others are, and what the damages and expenses amount to. The question to be determined in a benefit case is what benefits have accrued to the particular property. The amount of damages may also be changed at the trial of all or some of the damage appeals.

The prayer of the petitioner referred to above was therefore properly refused, and the two prayers offered by the City were propeidy granted. But nevertheless, if after all the cases are determined, and it is then known what the aggregate damages and expenses is, and what the aggregate of all the assessments of benefits is, the latter exceeds the former, then the proper proportion of the excess should be deducted from the benefits charged each one. ⁴³ * * * In as much as the city has in our judgment no power to assess benefits which materially amount to more that the aggregate of damages and expenses, it is. the duty of the Commissioners to deduct the excess, if they find such, by allowing eacb assessment its proportion of the amount deducted. The return should, of course, show that such deductions were made. We think section 177 would authorize that, as they ‘shall make all such corrections and alterations, in the valuations, assessments and estimates, and all other matters contained in the said statements and. explanatory map or maps aforesaid, as in their judgment shall appear to them, or a majority of them, to be just and proper * * *; and after clos^ ing such review the Commissioners shall make all such corrections in their statement and explanatory map or maps aa they shall deem proper, and cause such statement as corrected to be recorded in their book of proceedings,’ etc. They then deposit the book of proceedings and maps in the office of the City Register, and after certain notices provided for, section 179 authorizes appeals by the city or any person or corporation dissatisfied with the assessment of damages or benefits.

On appeal the Court directs the clerk to issue a subpoena duces tecum to the City Register, requiring him to produce and deliver to the Court the record of the proceedings of the Commissioners in the ease, and all 'maps, plats., documents and papers connected with such record, ‘and the City Court shall have full power to hear and fully examine the subject .and decide on the said appeal * * * and may require the said Commissioners, their clerk, surveyor or other agents and servants., or any of them, and all such other persons as the Court shall deem necessary, to attend and examine them on oath or affirmation, and may permit or require all such explanations, amendments and additions to be made to and of tbe said record of the proceedings as the said Court shall deem requisite.’ “As it is impossible to tell in such a case as this whether the benefits will exceed the damages and expenses, and if so, to what extent, until all the cases are finally settled, we can ⁴⁴ find no better way of disposing of the question. Section 179 certainly confers upon the Court large powers; and the object is to do justice to all. In addition to what we have already quoted, that section bas the following important provision in it: ‘and the said Court shall not reject or set aside the record of the proceedings of the said Commissioners for any defect or omission in either form or substance, but shall amend or supply all such defects and omissions, and increase or reduce the amount of damages and benefits assessed, and alter, modify and correct the said return of proceedings in all or any of its parts, as the said Court shall deem just and proper.’ As, then, in a case where the benefits materially exceed the damages and expenses, the Commissioners should make the reduction, upon their failure .to do so, the Court can do so on appeals to it.” 125 Md. 40 . After the decision in 125 Md. 40 , the Maryland Trust Company, on the 6th of February, 1919, filed in the case a petition alleging that it was advised that all appeals from the determination of the Commissioners for Opening Streets in connection with the opening, of the Fallsway had been finally disposed of, and that the aggregate amount of benefit assessments, as shown by the condemnation book, was much in excess of the aggregate amount of the damages awarded and expenses incurred as shown by said book, and praying the Court to pass an order requiring “proportionate amounts” to’ be deducted from all benefit assessments so as to eliminate the excess of said benefit assessments over the total amount of damages and expenses.

The city filed a motion to dismiss the petition for the following reasons: (1) Because this case originated in an appeal filed January 27th, 1913, from an assessment of benefits of $94.00, and.in said petition it was alleged that the Commissioners for Opening Streets had no' right to assess benefits upon the lot of the petitioner for the reasons therein stated; that the principal reasons specified were decided adversely to the contentions of the petitioner by the Court of Appeals in other cases, and that subsequently, on May 15th, 1915, the petitioner filed in said case another ⁴⁵ petition alleging that the damages and expenses set out in the return of the Commissioners included certain items improperly, and that with said items stricken out the total damages and expenses would appear to he only $135,835.14, and that the aggregate amount of benefits was $393,358.75, and praying the Court to decrease proportionately the benefit assessments so as not exceed the total damages and expenses; that the matter arising on said petition was tried before his Honor, Judge Dtei’y, who found an inquisition assessing benefits upon said lot to the amount of $94.00; that the Trust Company, on May 18th, 1915, took an appeal to the Court of Appeals from the “ruling, inquisition and judgment in the case”; that on June 22nd, 1914, the Court below passed an order refusing the petition of the Trust Company of May loth, 1914, to scale down the benefit assessments, and that such ruling was made the subject of one of the petitioner’s bills of exception; that the lower Court having taken final action upon the petition, and an appeal having been taken from its rulings., the jurisdiction of the lower Court in the case was at an end unless the case was remanded by the Court of Appeals; that the Court of Appeals did not remand the case, and that the action of the Court of Appeals was the end of the case, and the Court below had no jurisdiction to entertain the petition of the Trust Company. (2) Because under the decision of the Court of Appeals, it is the duty of the Commissioners for Opening Streets, after all the appeals have been disposed of, “'if they find that the aggregate benefits exceed the cost of its improvement, to amend their return and scale down proportionately the benefits so that the total of benefits shall