Philadelphia, W. & B.R. Co. v. Shipley

• Court: Maryland Supreme Court
• Writing for the Court: FOWLER, J.
• Citation: Philadelphia, W. & B.R. Co. v. Shipley, 19 A. 1, 72 Md. 88 (Md. 1890)
• Decision Date: 07 February 1890
• Parties: PHILADELPHIA, W. & B. R. CO. v. SHIPLEY, EXAMINER, ETC.

19 A. 1

72 Md. 88

PHILADELPHIA, W. & B. R. CO. v. SHIPLEY, EXAMINER, ETC.

Court of Appeals of Maryland

February 7, 1890

Appeal from superior court of Baltimore city.

Assumpsit by William H. Shipley, examiner for the opening of a thoroughfare over the beds of Lancaster Eleventh, and Hudson streets, in the city of Baltimore against the Philadelphia, Wilmington & Baltimore Railroad Company, for the benefits assessed against it by the opening of the street. Defendant interposed a plea which counted on a rescission by the county commissioners of their order confirming the examiner's award of benefits and damages and which also set forth the petition of property owners asking for such rescission. The court sustained a demurrer to the plea, and defendant appeals.

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

Bernard Carter and J. J. Donaldson, for appellant.

D. G. McIntosh and Fielder C. Slingluff, for appellee.

FOWLER J.

This is an action of assumpsit brought by the appellee William H. Shipley, examiner, against the Philadelphia, Wilmington & Baltimore Railroad Company, the appellant, to recover an assessment claimed to be due under certain proceedings had before the county commissioners of Baltimore county by virtue of chapter 399 of the Acts of 1876, and the amendments thereto, constituting what is known as the "street law" of said county. Inasmuch as the sufficiency of the declaration is questioned, it will be necessary to set it forth somewhat fully. It alleges the filing of the petition by certain persons, owning a majority of feet front, to have the proposed thoroughfare duly condemned, opened, graded, and constructed as provided by said act of 1876; that the said plaintiff, Shipley, was duly appointed examiner for such purposes; that the 10 days' notice required by said act was duly given by inserting the same both in the Maryland Journal, a newspaper published at Towsontown, and in the Baltimore Sun on the 4th of February, 1888. This notice is set forth in the narr., and states that the oath required has been taken. The declaration further alleges that, after having complied with all the requirements of said act of 1876, the said examiner gave the other two notices, as follows: That the second notice was published in the Baltimore Daily News February 23 and March 3, 1889, and in the Baltimore County Democrat, published at Towsontown, on the 23d February, 1889, and that the third and last notice was inserted once a week, for three successive weeks, in both the Baltimore Evening News and the Baltimore County Democrat. Both of these notices, like the first, are incorporated in the narr. It is further alleged that no appeal was taken within the time allowed by said act, and that the commissioners of said county thereupon duly ratified the said statement, and that all the proceedings taken by said examiner and by said commissioners were in strict conformity with the provisions of said act and its amendments; that the assessment made against the defendant was $1,500, and the amount allowed for damages was one dollar; that after the final ratification of said statement by the said commissioners the plaintiff made due demand for the difference between the amount so assessed for benefits on the defendant, and the amount allowed for damages, and that the defendant refused to pay the same. To this declaration the defendant pleaded one plea, which alleges that after the final ratification on the 29th May, 1889, of said statement by the county commissioners a petition was filed with them by a large number of persons; and that upon hearing said petition the said county commissioners passed an order; and that the effect of said order was to rescind and revoke the order of ratification passed by said commissioners; and that the plaintiff is not entitled to maintain this action. Both the petition and order above mentioned are not set out in full in said plea. To this plea the plaintiff demurred, and the court below sustained the demurrer, and entered judgment pro forma in favor of the plaintiff for the amount of the assessment claimed to be due. The demurrer calls in question the sufficiency of the declaration, as well as that of the plea to which it was interposed.

First then, in regard to the declaration. It is assailed on several grounds, but from the view we entertain we think it necessary to consider only two of them, namely-- First, whether the allegations of the declaration show that the plaintiff complied with the provisions of the act in regard to giving notices; and, second, whether under the declaration as it stands, and without considering the agreements of counsel filed in this court, any right of action whatever has accrued. The notices required to be given by the act under which this suit is brought are three in number-- First, (using the words of the act) "the examiner shall give at least ten days' notice by publication in one or more newspapers published in Baltimore county, and one newspaper of general circulation published in Baltimore city," that application has been made to open said street; second, he "shall give fifteen days' notice in one or more newspapers published in Baltimore county, and one or more newspapers published in Baltimore city, that said statement, plat, etc., are ready for examination," and that he will meet at such time and place as may be designated in said notice to hear objections to said statement, plat, etc.; and, third, he is required to notify all persons interested, by an advertisement, to be inserted once a week for three successive weeks in one or more newspapers in Baltimore county, and in one or more newspapers of general circulation published in Baltimore city, that said statement, plat, etc., have been deposited with the...