Friedenwald v. Mayor of Baltimore

Fowler, J., delivered the opinion of the Court. The appellee, the Mayor and City Council of Baltimore, by virtue of power conferred upon it by the Act of 1818, chapter 143, instituted proceedings for the widening of East Baltimore street. From these proceedings there were three appeals to the Baltimore City Court from the award of damages made by the Commissioners, and seventeen appeals from their 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 twenty appeals should be tried together before one jury. The owners of property assessed for — 123 — benefits objected to this motion, and asked that their cases might be tried separately from the three 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 1818, chapter 143, (Code, Public Local Laws, Art. 4, sec. 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 oioner 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 there follows this provision, the said Court “may cause all such apjjeals to be consolidated, or may hear and decide them separately * * * and the persons appealing * * 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 J-udee — 124 — 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 1818, ch. 148, 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, section 13, of the Code, the right of each owner to have a list of twenty names from which he may strike four. The course pursued by the Court below deprived the appellant of this val uable 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 Constitution and laws securing jury trials in civil proceedings. In answer to these views, it is sufficient to say that whatever may be the extent of the general common law powers of a trial Judge in this regard, and whether cases like the one before us are or are not included in the provisions of the Constitution of the United — 125 — States, and our own Constitution and laws relating to jury trials, the statute Avhich gives the appellee power to conduct cases like the one before us, secures to each owner of land assessed a separate jury trial, if he should demand it. And, of course, this statutory right cannot be destroyed, either by an ordinance of the Mayor and City Council, or by the exercise of any supposed discretionary power of the trial Judge. The second, third, fourth and fifth bills of exception relate to the admissibility of evidence, and may be disposed of in a few words. The opinion of the witness that the probable effect of the widening of the street would be, that ladies would not- be deterred from walking on the street when widened, as they are supposed to be now, by crowds who congregate there, was certainly only surmise, and such testimony is not admissible to show what will be the effect of au improvement. Burt vs. Wigglesworth, 117 Mass., 306. The third bill of exception is based upon an objection to a question allowed to be put to a witness in regard to the opinion of a majority of the people in the assessed district as'to the effect of the proposed improvement; but the record fails to disclose the answer. Under such circumstances, we have said we cannot reverse. Lawson vs. Price, 45 Md., 133; Baltimore & Yorktown Turnpike Road vs. State, 63 Md., 581. We think the testimony referred to in the fourth and fifth bills of exception should also have been excluded. It does not appear how the opinion of the witness McClellan, as to the skill of the-Commissioners in assessing his property in the opening of other streets, nor the message of a former Mayor to the City Council in regard to the widening of the street in question, could be properly considered by the jury in this case. This brings us to a consideration of the instructions.. The appellant offered ten prayers, and the appellee none. — 126 — The first, second and ninth were granted, and the others were rejected. The first prayer instructed the jury that “in assessing benefits for opening or widening Baltimore street, the jury cannot indulge in vague speculations or conjecture; but must only assess such benefits, if any, as it is, in their opinion, fairly and reasonably apparent that the property of the appellants will receive from- the proposed improvement, other than the general benefit to the community. ’ ’ The second prayer contains substantially the same proposition, and the ninth told them that “nothing is to be considered a benefit which does not enhance the value of the property.” These instructions, we think, fairly and clearly set forth the law, as applicable to assessments for benefits as announced by this Court in Hawley, et al. vs. The Mayor and City Council of Baltimore, 33 Md., 281; Gould vs. Mayor, &c. of Baltimore, 59 Md., 380, and other cases. Only the direct benefits are to be assessed, and the jury were instructed that these are such as actually and substantially accrue to the property holder, and such as “it was fairly and reasonably apparent in their opinion 'the property would receive other than the general benefit to the community.” The ninth prayer, which was granted, instructed the jury that the enhanced value of the property is the true standard by which to measure the benefits. . This is, as we have said, the rule as settled in this State, and it follows that the tenth prayer was properly refused, because it asserts that no benefits can be assessed, even if the value is enhanced, unless at the same time the proposed improvement makes the property more valuable to use.* There can be no doubt about the general proposition that increased facilities for travel enjoyed by the appel — 127 — lant, in common with the community in general, is not a proper element to be considered by the jury in estimating benefits. ’ But the jury had already been fully instructed upon this point by the first and second instructions, and we, therefore, find no error in the rejection of the seventh prayer, which we understood to assert substantially the same proposition. (Decided 25th March, 1891.) The othqr rejected prayers seem to raise the question of comparative assessments. Under the system now in force in Baltimore City, “each assessment must stand upon its own merits.” It was so held in Hawley’s Case, where it is said, “Thebenefits assessed are not required to cover the expenses of opening a street. So far as they may go, they are to be appropriated to that purpose, but any deficiency in the amount is required to be paid by the city.” By reason of the errors indicated, the judgment appealed from will he reversed. Judgment reversed, and neio trial awarded.