Friedenwald v. Shipley , 1891 Md. LEXIS 57 ( 1891 )

Bryan, J.,

delivered the opinion of the Court.

"Upon the application of certain property owners on Lancaster, Hudson and Eleventh streets in Baltimore County, the County Commissioners appointed William H. Shipley, examiner, to condemn, open, grade and construct said streets, so as to have a continuous thoroughfare from the eastern limits of Baltimore City^ to Scharr's lane in Baltimore County. The examiner completed his proceedings, and made return of them to the office of the County Commissioners. The summary of damages, benefits and expenses was as follows:

“Summary.

Total amount of damages awarded for land taken for the bed of a thoroughfare, . $11,595 00

Estimate of the probable cost of the opening, grading and construction of the same,..........‘ . 29,923 00

Estimate of the probable cost and expenses of the proceedings in the matter, including the per diem of the examiner, 3,600 00

Gross amount of benefits to be assessed, . $45,118 00"

Eriedenwald, and others who were assessed for benefits, filed a bill in equity against the examiner, alleging that his proceedings were utterly null and void, and praying for an injunction to restrain him from prosecuting suits against them for the recovery of said benefits, and from attempting to enforce the payment of them by a sale of their property. On final hearing the bill was dismissed, and the complainants appealed to this Court. The validity of the proceedings of the examiner was assailed on a number of grounds. He gave the notices required by law, by due publication in the proper newspapers.

The law authorized an appeal to the Circuit Court for Baltimore County by any person dissatisfied with the award for damages, or assessment of benefits; and this Court on such appeal had exclusive and final jurisdiction to o'- '_„ct any errors in these respects. It is too well settled to admit of further discussion, that a Court of equity cannot undertake the decision of questions which the law has confided to another tribunal specially designated to adjudicate them. Cumb. & Penna. R. R. Co. vs. Penn. R. R. Co., 57 Md., 267. We may, therefore, dismiss from our consideration all matters relating to the amounts of damages and benefits. But another objection was urged to the proceedings of the examiner. By the two hundred and twenty-sixth section of Article 3 of Public Local Laws, (relating to Baltimore County,) the examiner is required to “value such damages as may happen or arise from the condemnation and opening of said street, avenue or alley, or portion thereof, (meaning such as are to be opened,) and to make an estimate of the probable cost of opening, grading and construction of the same, and of the probable cost and expenses of the proceedings in the matter, including theyjer diem of the examiner or the examiners, and to assess the gross amount of such damages, the probable cost of opening, grading and construction, and the probable amount of cost and expenses of the proceedings in the matter, including the per diem of the examiner or the examiners, in such proportion as may be fair and equitable as benefits, upon all the lands in said county, which shall in the opinion of the examiner or the examiners be benefited.” We quote the words of the law. He is directed to make a statement of his proceedings and an explanatory plat of the street, and of the property bounding and fronting on it, and also, if he deems it advisable, of the adjacent property. He is also directed to afford an opportunity, by advertisement, for making corrections and alterations in the damages, estimates of probable cost of opening, grading and construction, assessments for benefits, and all other matters contained in the statement; and after making such alterations and corrections as he deems just and proper, it is made his duty to deposit the statement and explanatory plat in the office of the County Commissioners, and to give notice of the same by advertisement. Any person dissatisfied with the award of damages or benefits may, at any time within thirty days after the first publication of the notice, appeal to the Circuit Court; but if no appeal shall be taken within the time specified, it is made the duty of the County Commissioners to ratify and confirm the statement.

In the statement made by the examiner the “damages, awarded for land taken for the bed of a thoroughfare ” are- stated at $11,595; and the estimate of the juobable cost of the opening, grading and construction of the same is stated at $29,923. The cost is stated in one gross sum, and no particulars are given. But the examiner being produced as a witness, testifies that in this estimate of cost of “opening, grading and construction,'' there is included the sum of $16,000 for the building of two bridges. These bridges are to cross railroad tracks at an elevation of twenty feet above the tracks. The building of bridges is a very different matter from c'c opening, grading and constructing a street. ” By the two hundred and fifth section of the Article we are considering, the building and repair of all bridges in Baltimore County are placed under the control of the County Commissioners. No bridge can be built or repaired unless they direct it; and the expense of building and repairing is to be paid by the county. But under this section no bridge can be built, except on the petition of twenty or more taxable inhabitants of the county, and the report of a board of examiners appointed by the County Commissioners consisting of one road commissioner of the neighborhood, one disinterested tax-payer to be named by the petitioners, and the bridge superintendent of the county. A speedier method is provided by the two hundred and fortieth section, when in the course of opening, grading and constructing a street, it is necessary to erect a bridge, or culvert over any water-course. In this case, if the County Commissioners upon application made to them think that the public convenience requires the building of the bridge, they are directed to appropriate a sum sufficient to build it, and no petition of tax-payers is required, nor any report of a board of examiners. As bridges are usually built over water-courses, the Legislature named such bridges by way of general description; but bridges may be necessary in other cases, as ^over chasms and ravines for instance, and it would be a narrow construction of the statute to deny to the Commissioners the power in such cases. The object of the Legislature in passing the section seems to have been, that in the case of opening streets the delays might be avoided, which were incident to proceedings under the two hundred and fifth section. The examiner undertook to provide the means of constructing two bridges and therein exceeded his powers. He also failed to fulfil the requirements of the statute in the mode of making his statement. This statement was deposited in the •office of the County Commissioners for the inspection of all persons interested in it. Every one required to pay benefits had a right to know the particulars making up the aggregate of the estimated cost of opening, grading and constructing the street, so that he might appeal from the same, if he should consider them extravagant and unjust. Ho particulars are stated in this instance, and no one would suppose that under the general terms used: Opening, grading and constructing” a street, it vfas intended to describe the building of two expensive bridges. And the incongruity will appear more striking, if we look at _th,e figures in the statement. The whole cost is estimated at $29,923; of this amount $16,000 is for two bridges, one of them with a span of one hundred and ten feet, and the other with two spans of a hundred feet each; and the remainder, less than $14,000, is for constructing a street fifty-one hundred feet long. The statement was defective in that it did not .show matters of great importance to the parties charged, and which were necessary to enable them to defend their rights. Information was withheld from them which would probably have induced them to appeal; at all events which was essential to an intelligent determination of the question, whether an appeal was necessary for their protection. It was essential to the validity of the proceeding that, the statement should he made and deposited in the office of the County Commissioners, and that notice should he given by advertisement that it had been so deposited. But of what avail would the statement and advertisement he, if the statement did not disclose the matters vitally necessary to he known ? A special and limited jurisdiction has been conferred by statute on the examiner, and he must conform strictly to the authority thus given, or otherwise his proceedings will he null and void. This was decided to he a universal rule in Swann, et al. vs. Mayor, &c. of Cumberland, 8 Gill, 154, and has never been questioned by our Courts. Many instances might he cited where it has been applied, especially in cases of opening streets. It is sufficient to mention Henderson vs. Mayor, &c. of Baltimore, use of Eschbach, 8 Md., 352; Holland vs. Mayor, &c. of Baltimore, et al., 11 Md., 186, and Mayor, &c. of Baltimore, et al. vs. Porter, 18 Md., 284.

(Decided 28th April, 1891.)

In our opinion, for the reasons stated, the proceedings of the examiner were not within the jurisdiction conferred by the statute, and they must be declared void. We will, therefore, reverse the decree of the Circuit Court, and remand the cause, to the end that, a decree may be passed in conformity with this opinion.

Decree reversed, and cause remanded.