Mayor v. Smith & Schwarz Brick Co.

• Decision Date: 28 February 1895
• Parties: MAYOR, ETC., OF CITY OF BALTIMORE v. SMITH & SCHWARZ BRICK CO.
• Court: Maryland Court of Appeals

31 A. 423
80 Md. 458

MAYOR, ETC., OF CITY OF BALTIMORE
v.
SMITH & SCHWARZ BRICK CO.

Court of Appeals of Maryland.

Feb. 28, 1895.

Appeal from Baltimore city court Proceedings by the mayor and city council of Baltimore against the Smith & Schwarz Brick Company, of Baltimore city, in the matter of opening a public street, and assessing benefits. From an award of the commissioners, defendant appealed to the Baltimore city court, and, from a judgment of that court assessing the benefits to defendant at $7,478, plaintiff appeals. Affirmed.

Argued before ROBINSON, C. J., and BRYAN, McSHERRY, FOWLER, BRISCOE, PAGE, ROBERTS, and BOYD, JJ.

Wm. S. Bryan, Jr., and Thos. G. Hayes, for appellant.

Ber. Carter and Geo. R, Willis, for appellee.

BOYD, J. 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 as to the 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 prov、ide for assessing and levying, either generally on the whole assessable property of said city, or specially on the property of persons benefited, the whole o>r 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. 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.

31 A. 424

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...