Mayor of Baltimore v. Smith & Schwartz Brick Co.

Boyd, J., delivered the opinion of the Court. In this case we are called upon to review the rulings of the Baltimore City Court at the trial of an appeal by the Smith & Schwarz Brick Company, from an award of the Commissioners for Opening Streets in the city of Baltimore, assessing benefits to said company in the matter of opening Madison street from Patterson Park avenue to Grove alley in said city. There are nine bills of exceptions in the record which we will consider in their order. The first presents one of the most important questions to be determined by us.

The Mayor and City Council of Baltimore moved the Court to direct the clerk to swear the jury to inquire both ⁴⁶⁶ as to benefits and damages awarded to the company. The Court overruled the motion and instructed the clerk to swear the jury as to benefits only, which was accordingly done. The city contends, that notwithstanding the company only entered an appeal from the assessment of benefits, the whole action of the Commissioners ought to have been reviewed and the jury required to inquire into the assessment of damages as well as benefits. That proposition is disputed by the company, which contends that the Court was right in limiting the inquiry of the jury to the benefits assessed to it, that alone being the subject and cause of the appeal.

It is necessary for us to examine the statutes and ordinances under which these proceedings were conducted. By section 806 of Article 4 of the Code of Public Local Laws, it is enacted that “The Mayor and City Council of Baltimore shall have full power to provide for laying out, opening * * * * any street * * * ' * * to provide for ascertaining whether any and what amount in value of damage will be caused thereby, and what amount of benefit will thereby accrue to the owner or possessor of any ground or improvements within or adjacent to said city, for which such owner or possessor ought to be compensated, or ought to pay a 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 * * * in said city; to provide for granting appeals to the Baltimore City Court from the decisions of any Commissioners, or other persons appointed in virtue of any ordinance, to ascertain the damage which will be caused or the benefit which will accrue * * °* * and for securing to every such owner and possessor the right * * to have decided by a jury trial whether any damage has been caused or any benefit has accrued to them, and to what amount,” etc. ⁴⁶⁷ The ordinance of the city passed in pursuance, of that statute provides for the appointment of three Commissioners for Opening Streets. They are required to ascertain whether any and what amount of damages the owners of the property will sustain by the opening of the street, for which they ought to be compensated. Having ascertained the whole amount of damage for which compensation ought to be awarded and the probable expenses in the proceeding, they are then required to assess all the ground and improvements within and adjacent to the city, the owners of which they decide and deem to be directly benefited by the opening of the street.

If the direct benefits assessed do not equal the damages awarded and expenses incurred, the difference is to be paid by the city and provided for by a general levy. An opportunity is then given to interested persons to appear before the Commissioners, who can review their own proceedings, and when they make their final award of damages and benefits they file them with the Register of the City, who gives notice through the newspapers of the right of parties affected by such awards to appeal to the Baltimore City Court. Section io of Article 48 of the Baltimore City Code provides for an appeal by “ any person or persons or corporations who may be dissatisfied with the assessment of damages or benefits, etc.,” by petition in writing to the Baltimore City Court. That Court is then required to fix a day to hear any such appeal and to direct the Clerk to issue a subpoena duces tecum to the Register of the City, requiring him to deliver to the Court the record of proceedings of the Commissioners, and all maps, plats, documents and papers connected with such record, and the Court is given “full power to hear and fully examine the subject and decide on the said appeal.” Provision is made for trial by jury of any question of fact, and if necessary for them to' view any property in the city or adjacent thereto, to ascertain and decide on the amount of damages or benefits under the direction of the Court.

The Court is also vested ⁴⁶⁸ with the power to amend and supply defects and omissions in the record of the proceedings of the Commissioners and to increase or reduce the amount of damages and benefits assessed. It is contended by the attorneys for the city that this section of the ordinance brings the whole case before the Court, and therefore it was proper to direct the jury to review the action of the Commissioners in assessing the damages as well as the benefits. But we do not find anything in that section or the other provisions of the law to sustain that contention. The Commissioners for Opening the Streets, in assessing damages, are required to value the property to be taken for the bed of the street as if no street was to be opened, and in estimating the value of the property to be condemned are not to consider the fact that a street is to be opened.

Moale v. Mayor, etc., of Baltimore, 5 Md. 334 . They are required to fix the compensation to be paid to the owners for the ground or improvements to be taken from them without regard to the use to be made of them. They then ascertain the aggregate of such damages or compensation, and having added the estimated expenses of the proceedings, they are prepared to furnish the city with the cost of opening 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.

They .then decide whether there is any ground or improvements in or adjacent to the city, the owners of.which will be directly; benefited by the opening of the street. Such as they find will be so benefited they assess to the extent of such direct benefits, and if the aggregate of the benefits so assessed is not sufficient to pay for the opening of the street, the balance is made up by the city by a general levy. In other words, they take such property as is needed for the bed of the street and allow the respective owners compensation for it according to its then market value; they then direct that A, B and C, as owners of ground or improvements some ⁴⁶⁹ where in or adjacent to the city, will be directly benefited after the street is opened, determine how much, and so assess them. If there is a shortage in the benefit column the account is balanced by the city.

It matters not whether A’s property thus to be benefited is adjoining to or a part of the property taken for the bed of the street, or whether it is on another square on the street to be opened or in some other locality; if it will be directly benefited he is assessed accordingly and called upon to contribute to the payment for said street to the extent he is so benefited.' It seems clear that the two transactions of fixing damages or compensation, and of assessing benefits, are separate and distinct. If, therefore, A is satisfied with the damages allowed him, but is dissatisfied with the assessment of benefits (to use the language of the ordinance), why should his appeal from the latter necessarily carry with it the consideration of the former? By limiting his appeal to the one, as was done in this case, he notifies the city he is satisfied with the other. Both have been made by the city through its officers, and if it is not satisfied with either it can now appeal, notwithstanding the assessment was made by those of its own selection.

There is therefore no reason why the jury should review the action of the Commissioners in fixing damages on an appeal from the assessment of benefits, and we do not think a proper construction of the ordinance would have justified the Court in granting the city’s motion. There is nothing in the fact that the whole record of the proceedings of the Commissioners must be brought before the Court to sustain the city’s contention. It might disclose, such defects and omissions as the Court could amend or supply, which should be corrected, and it would be very difficult, if not impossible, to properly review the action of the Commissioners in either fixing damages or assessing benefits, without having the whole record before the Court. If an appeal is taken by a person whose property is assessed for benefits, but has no claim for damages, none of his property being taken, the whole record and all proceedings ⁴⁷⁰ are brought before the Court.

If some other company had owned the ground included in the bed of the proposed street, the Court could not have permitted the jury on the appeal of the Brick Company to increase or reduce the amount of damages allowed the other company, except by consent of the parties; and we see no reason why the jury should be permitted to increase or reduce the damages allowed the Brick Company when it has only taken an appeal from the benefits assessed against its property. The jury is authorized by the ordinance to ascertain and\ decide on the amount of damages or benefits, clearly meaning that it can ascertain the amount of the one before it by appeal, but not of both, unless an appeal has been taken from both. The Court therefore committed no error in overruling this motion of the city. The second and third bills of exceptions can be considered together.

The evidence shows that a number of the lots of the company which will