City of Baltimore v. Cahill

• Decision Date: 22 June 1915
• Docket Number: 29.
• Citation: 95 A. 473,126 Md. 596
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. CAHILL.
• Court: Maryland Court of Appeals

95 A. 473

126 Md. 596

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

No. 29.

Court of Appeals of Maryland

June 22, 1915

Appeal from Baltimore City Court; James P. Gorter, Judge.

Street opening proceeding by the Mayor and City Council of Baltimore and the Commissioner for Opening Streets of Baltimore. From adverse rulings on an appeal by Winfield S. Cahill from an award of damages and assessment of benefits, the city and the commissioner appeal. Rulings reversed, cause remanded, and new trial granted.

S. S Field, City Sol., of Baltimore, for appellants. Clifton S Brown, Albert C. Ritchie, and George Weems Williams, all of Baltimore, for appellee.

BRISCOE J.

This is an appeal from the rulings of the Baltimore City Court on certain proceedings by the commissioners for opening streets in the matter of the condemnation and opening of the Key highway, as a public highway of Baltimore city, from Montgomery street to Lawrence street, in that city. The record contains 10 bills of exceptions, presenting the rulings of the court upon motions to quash, the admissibility of evidence, and the prayers, reserved by the city in the course of the trial and which are fully set out in the record now before us.

The proceedings were had under an ordinance of the mayor and city council of Baltimore city, approved the 28th of April, 1913 and known as "Ordinance No. 261," in continuation of the highway as opened to Montgomery street, under Ordinance No. 682, approved May 3, 1911. By section 2 of the ordinance it was ordained that the proceedings of the commissioners for opening streets, with reference to the condemnation and opening of the highway and the proceedings and rights of all parties interested or affected thereby shall be regulated by and be in accordance with all such provisions of article 4 of the Public Local Laws of Maryland, as enacted by chapter 123 of the Acts of the General Assembly of Maryland of the year 1898 (commonly known as the "New Charter" of Baltimore city), as may be applicable thereto, as well as all amendments thereof, and also any other acts of the General Assembly of Maryland which may be applicable thereto, and also in accordance with any and all ordinances of the mayor and city council of Baltimore now in force and applicable thereto. It was further provided that in honor of the distinguished Marylander, Francis Scott Key, and in commemoration of his having written the Star-Spangled Banner in the harbor near the terminus of the highway begun under Ordinance No. 682, approved May 3, 1911, and to be continued under this ordinance, that the highway be called and named the "Key highway."

These ordinances were passed, in pursuance of chapter 485 of the Acts of 1910, known as the Harbor Loan Act, providing for a general plan of harbor improvements in the city of Baltimore. This act authorized and empowered the mayor and city council of Baltimore, as provided by its title, to issue its stock, to an amount not exceeding $5,000,000, for the purpose of defraying the costs and expenses of laying out, projecting, constructing, and establishing a pier or piers adjacent to and along the Patapsco and its tributaries, both within the limits of the city of Baltimore, including "the acquisition of property and streets, *** the laying out, closing, grading, and paving of streets, *** and the doing of all other things" that may be necessary to carry out the proper and final completion of a pier or piers, adjacent to and along the Patapsco river and its tributaries. The act further authorized the submission of ordinances to the legal voters of the city for approval, and also invested the mayor and city council of Baltimore with full power and authority to carry into effect the improvements and the public work provided by the act. The money received from the stock should be placed to the credit of a special fund, to be known as the "Harbor Improvement Fund," and was to be especially applicable to the work and objects specified in the act.

The approval of the legal voters of the city having been obtained, as required by the act, the city proceeded under Ordinance No. 261 to open what is called the second section of the Key highway, from Montgomery to Lawrence streets, and in the course of the proceeding assessed benefits against the property of the appellee, abutting on and adjacent to the highway, in the sum of $5,761, under section 175 of the city charter (City Code 1906, p. 191), and under section 4 of Acts 1910, c. 485. It appears from the record that the final return of the Commissioners in this case was made on the 16th of February, 1914, and subsequently on the 21st of February, 1914, the appellee filed his petition in the Baltimore city court, praying an appeal from the award of damages and assessment of benefits made by the commissioners under the ordinance.

The appellee's objection to the assessment of benefits against the property here in question is based upon Acts 1914, c. 470, and is specifically set out in the defendant's first bill of exception to the action of the court in sustaining the petitioners' motion to quash the proceedings, so far as they relate to the assessment of benefits. By the fourth paragraph of the petitioners' motion to quash it is alleged that, subsequent to the assessment for benefits and to the date of this appeal, the Legislature of the state of Maryland on the 6th day of April, 1914, passed an act which was signed by the Governor of the state of Maryland on the 16th day of April, 1914, prohibiting the mayor and city council of Baltimore, or any of its officers, commissions, boards, or agents, from levying or collecting any assessment for benefits in connection with the condemnation, opening, and widening of a highway in Baltimore city known as the Key highway, which said highway extends from the east side of Light street to the east side of Lawrence street in said city, which said act is known as chapter 470 of the Acts of 1914, and is as follows:

"An act to prohibit the mayor and city council of Baltimore, or any of its officers, commissions, boards or agents, from levying or collecting any assessments for benefits in connection with the condemnation, opening and widening of a highway in Baltimore City, known as the Key highway, which said highway extends from the east side of Light street to the east side of Lawrence street, in said city.

Whereas, the mayor and city council of Baltimore, acting under chapter 485 of the Acts of 1910, of the General Assembly of Maryland, and Ordinance No. 682, approved May 3 1911, of Baltimore city, and Ordinance No. 261, approved April 28, 1913, of Baltimore city, has proceeded to condemn and open a highway known as the Key highway, extending from the east side of Light street to the east side of Lawrence street, in said city, and in connection with said condemnation and opening of said highway has levied assessments for benefits against certain properties and owners of properties abutting on and adjacent to the said Key highway; and

Whereas, while the said act above referred to did not specifically exempt such properties and property owners from such assessments for benefits, yet it was the plain and manifest intention of said act that all improvements made in pursuance of the provisions of said act should be paid for wholly out of the funds to be raised by the issue of Baltimore city stock, authorized to be issued thereby:

Section 1. Be it enacted by the General Assembly of Maryland, that the mayor and city council of Baltimore, and all of its officers, commissions, boards or agents, be and they are hereby prohibited from levying or collecting any assessments for benefits in connection with the condemnation and opening of the said Key highway, under the aforesaid chapter 485, Acts of 1910 of the General Assembly of Maryland, and the said Ordinance No. 682, approved May 3, 1911, and Ordinance No. 261, approved April

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