Friedenwald v. City of Baltimore

• Decision Date: 25 March 1891
• Citation: 21 A. 555,74 Md. 116
• Parties: FRIEDENWALD v. MAYOR, ETC., OF BALTIMORE.
• Court: Maryland Court of Appeals

21 A. 555

74 Md. 116

FRIEDENWALD v. MAYOR, ETC., OF BALTIMORE.

Court of Appeals of Maryland

March 25, 1891

Appeal from Baltimore city court.

Argued before MILLER, ROBINSON, BRYAN, MCSHERRY, and FOWLER, JJ.

Wm. S. Bryan, Jr., and Ber. Wiesenfeld, for appellant.

Wm. A. Hammond and Albert Ritchie, for appellee.

FOWLER J.

The appellee, the mayor and city council of Balitmore, by virtue of power conferred upon it by the act of 1878, c. 143 instituted proceedings for the widening of East Baltimore street. From these proceedings there were 3 appeals to the Baltimore city court from the award of damages made by the commissioners, and 17 appeals from the assessment of benefits. When these appeals were called for trial, and before the jury was sworn, the mayor and city council moved that all of said 20 appeals should be tried together before one jury. The owners of property assessed for benefits objected to this motion, and asked that their cases might be tried separately from the 3 appeals from assessments for damages. But their request was refused, and all of the cases against their protest were tried together before the same jury. This action of the court forms the ground of the first bill of exception. The appellee contends that the court below was fully justified in consolidating these cases by the provisions of the act of 1878, c. 143, (Code Pub. Local Laws art. 4,§ 806,) and the ordinance claimed to have been passed in pursuance thereof, found in the City Code, at page 1001. The act gives the appellee full power to provide for laying out, opening, or widening any street, and to provide for granting appeals to the Baltimore city court from the decision of the commissioners appointed to ascertain the damages which will be caused, or the benefit which might accrue, to the owners or possessors of ground or improvements, by widening any street, and for securing to every such owner and possessor the right, on application in due time, to have decided by a jury trial whether any damage has been caused, or any benefit has accrued, to them, and to what amount. The ordinance provides for appeals to the Baltimore city court, and then follows this provision: The said court "may cause all such appeals to be consolidated, or may hear and decide them separately, * * * and the persons appealing, as * * * as aforesaid, shall be secured in the right of a jury trial." The power conferred by the act, to provide for granting appeals, and for securing jury trials, to every owner, cannot, we think be construed as giving the appellee power to confer upon said court such large discretionary power as is claimed for it in this case under the city ordinance. We do not doubt that the learned judge below acted in accordance with what has been the practice in that court, but we are now for the first time to decide whether such a practice is warranted by law. The question is a very narrow one, and depends upon the construction of the act of 1878, c. 143, before referred to. This act, so far from giving the city court discretionary power to consolidate, uses language which seems clearly to deny it. In the same section in which power is conferred upon the appellee to provide by ordinance for granting appeals, special provision is made for securing, in the language of the act, "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." To the word "every," as here used, must be assigned its ordinary meaning, namely, "each individual of the whole class." "The word," says Webster, "includes the whole number, but each separately considered." It would follow, therefore, that each owner, according to the terms of the act, is to have a jury trial; and such a trial necessarily includes, according to the provisions of article 51. § 13, Code , the right of each owner to have a list of 20 names, from which he may strike 4. The course pursued by the court below deprived the appellant of the valuable privilege secured to him by the law. It was urged, however, that, apart from the express authority supposed to have been given by the ordinance, the court had the right to consolidate, under its common-law powers, and that the proceedings in question are not such civil cases as are contemplated by the...