Cahill v. City of Baltimore

• Decision Date: 22 June 1916
• Docket Number: 7.
• Citation: 98 A. 235,129 Md. 17
• Parties: CAHILL v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Maryland Court of Appeals

98 A. 235

129 Md. 17

CAHILL v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 7.

Court of Appeals of Maryland

June 22, 1916

Appeal from Baltimore City Court; James M. Ambler, Judge.

Street opening proceedings by the Mayor and City Council of Baltimore and the Commissioners for Opening Streets. From an award of damages and assessment of benefits, Winfield S Cahill petitioned for an appeal, which resulted in an adverse judgment, and he appeals. Affirmed in part and reversed and remanded in part.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, STOCKBRIDGE and CONSTABLE, JJ.

Clifton S. Brown, of Baltimore, for appellant.

George Arnold Frick, of Baltimore (S. S. Field, of Baltimore, on the brief), for appellees.

CONSTABLE J.

This is the second appeal in this case to this court, and the first appeal is reported in 126 Md. 596, 95 A. 473, in which the present appellees were the appellants. The case originated by Winfield S. Cahill filing a petition in which he prayed an appeal from the award of damages and assessment of benefits made by the commissioners for opening of streets of Baltimore, in the matter of the condemnation and opening of the second section of the street known as the Key highway.

In the first trial below the property owner and petitioner made a motion to quash the proceedings of the commissioners for opening streets, in so far as the proceedings related to the assessment of benefits against his property, and alleged as the reason therefor that the General Assembly of 1914 by chapter 470 had passed an act which prohibited the mayor and city council of Baltimore from collecting or levying any assessments for benefits in connection with the condemnation opening, and widening of the second section of the Key highway. The lower court sustained this motion, and in accordance with this ruling and the instructions granted the jury assessed damages only, and thereupon the first appeal was taken. The action of the lower court in sustaining the motion to quash was reversed by this court, on the ground that chapter 470 of the Acts of 1914 was unconstitutional.

On the retrial of the case the petitioner again sought to quash the proceedings in so far as they related to the assessment of benefits to his whole property, and also filed a motion to quash the proceedings so far as they related to the assessment of benefits to one piece of property which he held under a lease from the city. The grounds relied upon in support of the first motion were that the commissioners for opening streets had omitted to assess benefits against property on the first section of the Key highway, and because they had omitted to assess benefits to property owned by the city of Baltimore abutting on the second section of the Key highway.

Both of these motions were overruled. Numerous exceptions were taken to the rulings of the court on the testimony and instructions asked, and this appeal is taken therefrom. One of the main questions is whether or not the lower court was correct in overruling the motions to quash.

We have had occasion very recently to consider a point very similar to the one here in issue. The case of Park Land Corporation of Baltimore et al. v. Mayor and City Council of Baltimore, 98 A. 153, was heard and decided on its second appeal to this court at the April term of this year. In the second appeal the order of the parties was reversed. At the retrial of the case, after the reversal on appeal, but before judgment was entered, the defendants for the first time raised the question of jurisdiction, and thereby sought to set aside the proceedings. Chief Judge Boyd in delivering the opinion of the court reviewed the authorities both of this state and other jurisdictions, and announced that the overwhelming weight of authority was, in even so serious a question as jurisdiction, to the effect that the point had been lost by not having been raised before the mandate of this court went forth, and said, if the defendants had reason to believe we had overlooked that question, they should seasonably have brought it to our attention by a motion for reargument or other proper way, and not have waited until the second trial was about to be concluded before seeking to raise it.

"In Carrington v. Basshor, 119 Md. 378, on page 381, 86 A. 1030, on page 1031, we said: ' In Smith v. Shaffer, 50 Md. 132, it was said a party cannot be allowed to prosecute different and successive appeals on the same state of record, unless there had been new proceedings since the last appeal, and then only in respect to questions raised on and by such new proceedings. When appeal is taken, all the questions which may be properly raised in this court on the then state of the record as it may exist in the court of original jurisdiction must be considered as embraced by the first appeal, and, if not then raised and presented for decision, they must be considered as waived; otherwise there would be no end of litigation and appeals. Graff v. Barnum, 33 Md. 283; Stonebraker v. Stonebraker, 34 Md. 444; Waters v. Waters, 28 Md. 11; Abraham v. Trust Co., 86 Md. 254 . While the question of interest was raised on the former appeal, it was not discussed in the opinion, and no mention thereof appears in the decree. It does not, however, necessarily follow it was not considered by the court in the conclusion and ultimate determination of the case. This court is presumed in every case to have considered all questions properly presented by the record and raised on the appeal, which are found necessary for the determination of the rights of the parties to the suit."'

In State v. Brown & A. & E. R. R. Co., 64 Md. 199, 1 A. 54, 6 A. 172, speaking of the effect of a decree upon a subsequent case between the same parties and over the same subjct-matter, it is said:

"The plea of res judicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

But it is a fact that this appellant was not by a lack of diligence not in possession of the facts which he now makes the basis of his motion. By reference to the briefs filed by him in the first appeal, not only on the first argument, but on the reargument, for there was a reargument, he made numerous references to those facts. For instance, on page 6 of his first brief:

"For this improvement, as argued below and not disputed by the appellants, benefits were first assessed on the abutting and the other property to the extent of $22,732; but later all benefits were ordered to be abated by the proper municipal authorities, and this was done. Section 1 of the highway was accordingly completed without the payment of benefits."

And later, beginning on page 44 of the same brief, he argued:

"Because the municipal authorities not having collected benefits from section 1 of the Key highway, the Legislature had the constitutional right to step in and prohibit the assessment of special benefits for the construction of section 2 of the same highway."

So it is apparent, that not only did he have knowledge of the facts, but he actually argued from them, as a basis for sustaining the first motion to quash, and thereby brought them under the consideration of this court for whatever bearing they might have had upon the rights of the parties. That the great weight of authority is that prior decisions are conclusive on subsequent appeals is shown in the valuable note appended to the case of Hastings v. Foxworthy, 45 Neb. 676, 63 N.W. 955, 34 L. R. A. 321, where all phases presented by the question are treated together with a long line of citations. Subhead "n," as to questions which might have been made on prior appeal, says:

"As to questions which should have been presented on the prior appeal, or which should have been made on the prior trial of the case before it was presented on the prior appeal, the decision then made is conclusive. But in Missouri and Indiana there is some conflict of the cases, and in the latter state the rule is now that the law of the case is limited to the point expressly decided."

Without here citing the numerous authorities cited there, we simply make reference to the note so that upon examination they can be found so as to bear out the text.

Without further extending this opinion on this point, we deem it sufficient to say that, under our own authorities and the great weight of authority in other jurisdictions, the lower court was correct in concluding that the prior mandate operated against opening again the question of quashing the proceedings so far as they related to assessing benefits against the property of the appellant. The appellant contends that error was committed by the court in refusing to grant his third and seventh prayers and in granting the appellees' first, third, and fourth...