STREETS-APPEAL FROM AWARD AND ASSESS- Under Acts 1912, c. 32, § 1, amending ing, had been well taken in the first instance,, 2. EMINENT DOMAIN (§ 238*) OPENING it could not now be insisted upon. If he could at the same time become a party so far as to defeat the bill, and yet not a party so as to be compelled to litigate his claim, he did not undertake such a course. When his demurrer was overruled he did not rely upon his exception to the ruling. He then set up his claim of title and proceeded to litigate the same. As before pointed out, this had the same effect upon the proceedings as would have resulted from his being a party whose claim was set up in the bill and over whom the court had complete jurisdiction. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 614, 619, 658-660, 666, 668, 669, 671, 673, 674, 687; Dec. Dig. § 238.*] 3. EMINENT DOMAIN [Ed. Note.-For other cases, see Eminent Do- His further contention, that he did not discover the alleged deficiencies in the case until during the progress of the trial, does not alter the situation. He did not then elect to withdraw from his contest on the facts to withdraw from his contest on the facts and ask the court to relieve him from the effects of what he had done. On the contrary, he continued to participate in the trial as the only opponent of the Wallaces. He introduced evidence, argued and submitted his case on the facts, and is bound by the reA question to one of the commissioners, on sult. If the trial court could have permitted appeal from the award and assessment by the him to withdraw upon the ground of misap-commissioners for opening streets, to show on prehension or deception, it did not do so. No request for such relief was made; the only suggestion along that line being that his demurrer was to have the same effect as though filed before, he answered to the merits. As to his other motions and exceptions, he stands like any party over whom full jurisdiction has been obtained. [10] There is no error of law in the conclusion reached in the superior court that the Wallaces have title to the stock by virtue of their rescission of the contract by which title was transferred from them to Coffin & Stanton. There is no occasion to consider the claim that they have a lien upon the stock by virtue of a later transfer thereof by Coffin & Stanton to Prince & Co., as security for an obligation undertaken toward the Wallaces. The rescission of the original sale invalidates the later pledge by the vendee and renders the facts as to that transaction, and the possible rights growing out of it, wholly immaterial. Exceptions overruled. All concurred. (124 Md. 153) PATTERSON et al. v. MAYOR & CITY (Court of Appeals of Maryland. June 25, 1914. 1. MUNICIPAL CORPORATIONS (§ 278*)-OPENING STREETS-ASSESSMENTS-ESTABLISHING GRADE. Before property can be assessed for the opening of a street, its grade must be established. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 734-738, 744; Dec. Dig. § 278.*1 of the value of one of the lots into which propwhat his award was based, and his judgment erty was cut by the opening of the street, is proper. [Ed. Note. For other cases, see Eminent Do 669, 671, 673, 674, 687; Dec. Dig. § 238.*] main, Cent. Dig. §§ 614, 619, 658-660, 666, 668, 5. EMINENT DOMAIN (§ 238*)-APPEAL FROM AWARD-WITNESSES-QUALIFICATION IDENCE TO ESTABLISH. Ev A question to a witness, on appeal from for opening streets, designed to establish his the award and assessment by the commissioners qualification to testify to the value of the property, should be allowed. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 614, 619, 658-660, 666, 668, 669, 671, 673, 674, 687; Dec. Dig. § 238.*] 6. EMINENT DOMAIN (§ 96*)-OPENING STREET -DAMAGES. The award of damages for opening a street through one's land should include not only the market value of the land taken, but an allowtract. ance for any injury to the remainder of the [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 245-249; Dec. Dig. § 96.*] 7. EMINENT DOMAIN (§ 239*)-VIEW BY JURY. As to the value of the property and the damage by the opening of a street, the jury sent by the court, on appeal from the award by the commissioners for opening streets, under the power contained in Acts 1912, c. 32, § 1, amending Code Pub. Loc. Laws, art. 4, § 179, to view the property condemned may consider not only the evidence introduced, but the effect on them of their view. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. $$ 615-620, 675, 676, 678, 680; Dec. Dig. § 239.*] Appeal from Baltimore City Court; H. Arthur Stump, Judge. "To be officially reported." Proceedings for the opening of a street in the city of Baltimore. From the assessment of damages and benefits by the com *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes missioners for opening streets, Laura Patter-, from the rulings of the lower court made son and another, property owners, appealed to the Baltimore city court, and from its rulings again appeal. Reversed, and new trial awarded. during the progress of the trial. The main questions in the case are: (1) The effect of the failure of the city to establish the grade of Adams street before making the award and assessment; (2) the competency of the present and prior commissioners for opening streets as witnesses; (3) the admissibility in Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, STOCKBRIDGE, and CONSTABLE, JJ. Arthur W. Machen, Jr., of Baltimore, for this case of the ordinance and proceedings appellants. Robert F. Leach, Jr., of Balti-for the opening of Twenty-Fifth street. more (S. S. Field, City Solicitor, of Baltimore, on the brief), for appellees. BURKE, J. City Ordinance No. 109, approved May 27, 1912, authorized the opening of Adams street from the west side of Homewood avenue to the south side of TwentyFifth street. It provided for the opening of the street "to the south side of TwentyFifth street 100 feet wide as now in process of widening." The opening of Twenty-Fifth street had been authorized by an ordinance approved December 9, 1909. The appellants are the owners in fee of a tract of land which extends northerly and easterly from Walbert avenue. For a clear understanding of the situation of the several streets and the location of the appellants' property with reference thereto, a diagram is here inserted. The portion of the appellants' land actually taken for the bed street is designated upon the diagram as lot Z2, and the adjoining lots as lots 41 and 102. By the return of the commissioners for opening streets the appellants were awarded $1,174.50 for the lot actually taken, and were assessed $1,168 as benefits-$6.50 less than the damage. Lot 41 was assessed $724 for benefits, and lot 102 $444. A petition for a review of the award and assessment was filed in the Baltimore city court, where a trial was had upon the questions involved. The trial resulted in an inquisition which fixed the damages at $1,174.50 and the benefits at the same figure. This appeal was taken by the appellants 41 There are some subsidiary questions presented upon the rulings upon the evidence and prayers which will be considered later. [1] As to the first question: The grade of Adams street has never been established. It was decided in the recent case of the Mayor & City Council v. Johnson, 91 Atl. 156, January term, 1914, that the city cannot lawfully assess benefits against abutting property until the grade of the proposed street shall have first been established. case Judge Pattison, speaking for the court, said: In that "When a public street or highway is to be opened, and land is to be condemned for the bed of the street or highway, it is but fair and equitable that the grade of such street or highway should first be established, in order that those who are to determine the benefits, if way will be to the abutting lands may estimate any, that the opening of such street or highthe necessary costs of placing such abutting lands in a condition to receive the advantages of the street or highway as opened and graded; and the grade so established should be the one, so far as it can then be determined after a proper consideration of the rights and interests of the adjacent landowners, that for all times will best subserve the public interest and convenience. Not to establish a grade at the time when the street is open, but at such time to assess the benefits without regard to the costs and expenses to which the adjacent landowners may be subjected in cutting or filling their lands so as to enable them to receive the advantages of the road so opened, would, we think, be unfair and inequitable to them. The grade of the street is so materially involved in ascertaining the amount of benefits to be assessed against the abutting lands that it is right and proper, in our opinion, that a permanent grade, and not a tentative one, such as is here referred to by the city engineer, should be established before the city should be permitted to assess benefits to abutting lands, caused by the opening of such street or highway." Under the authority of that case there was reversible error in refusing the appellants' sixth prayer, which asserted that there was no evidence legally sufficient to justify an assessment of benefits against lot No. 41, and in refusing their seventh prayer, which, for the same reason, declared that there could be no assessment for benefits against lot 102. The eighth prayer, for the same reason, should have been granted. [2] Under section 179 Code Pub. Loc. Laws, art. 4, of the Acts of 1912, c. 32, § 1, the commissioners for opening streets were competent witnesses in the case. That section provided that, upon the appeal from the award and assessment, the court "may require the said commissioners, their clerk, surveyor, or other agents and servants, or any of them, and all such other persons as | embraced in the eleventh exception. But, as the court may deem necessary, to attend, and we do not know whether or not he was qualexamine them on oath or affirmation," etc. ified, we cannot pronounce that ruling erroneThe city, in condemning and opening ous. The same observation, for the same reaAdams street, was exercising through the son applies to the twelfth exception. commissioners for opening streets the power of eminent domain, and in Consolidated Gas Co. v. Baltimore City, 105 Md. 43, 65 Atl. 628, 121 Am. St. Rep. 553, the court said that: The evidence proposed to be offered in the thirteenth exception was whether certain proceedings which had been taken for the opening of Twenty-Fifth street would affect the "Ever since the case of Tidewater Canal Co. saleable value of lot ZA. The court refused v. Archer, 9 Gill & J. 479, the practice in to admit this evidence, and, for the reason Maryland has allowed the examination of ju- above stated, there was no error in the ruling. rors, who sign the inquisition as witnesses, on return of such inquisition for confirmation, 'up- The question propounded in the seventeenth on all subjects whatever relating to the con- exception related to the pending proceeding troversy, as fully as any other persons who for the opening of Twenty-Fifth street, and might be sworn as witnesses in the cause, that they may be examined as to the grounds and the ruling was correct. Inasmuch as the city motives for their finding, in order to ascertain could not make an award and assessment of whether, in coming to their conclusions, they benefits until the grade of Adams street had had not mistaken facts as well as the law.'" first been established, the evidence proposed This proceeding is analogous to the old to be introduced in the nineteenth and twenproceeding by condemnation, and it is prop-tieth exceptions to show the effect on the er that the persons who made the award and assessment should be required to state the principle upon which they acted. [3] We are of opinion that the questions of the opening of Twenty-Fifth street and their effect upon the appellants' property should not be injected into this case. That was a separate and independent proceeding, and it may never be carried to completion. If it should be, all grievances which the landowners may have against the action of the commissioners may be remedied by an appeal to the court. Such questions are not properly open for determination in this case. The record presents 20 bills of exceptions taken to the rulings of the court on evidence. It results from the views we have expressed that there was no error in the ruling embraced in the first, second, and third exceptions, which relate to the refusal of the court to admit in evidence the ordinance for the opening of Twenty-Fifth street; the record of proceedings in the opening of that street; and testimony as to the establishment of the grade of that street. [4, 5] There was error in the rulings in the fourth and fifth exceptions. The question asked Mr. Grannan, one of the commissioners for opening streets, to show upon what his award of damages was based, and his judgment of the value of lot Z2, should have been answered. The question set out in the sixth exception has reference to the opening of Twenty-Fifth street, and we find no error in that ruling. Mr. Budnitz should have been allowed to answer the question embraced in the seventh and eighth exceptions, and the questions propounded to John L. Sandford in the ninth and tenth exceptions were likewise proper, and he should have been permitted to answer them. They were designed to establish the qualification of Mr. Sanford to testify to the value of the property. Had the answers to these questions established his qualification to speak as to values, he should have been permitted to answer the questions value of the lots by reason of the failure of the city to establish the grade was wholly immaterial. The evidence proposed to be offered in the fourteenth, fifteenth, sixteenth, and eighteenth exceptions had a tendency to enlighten the jury upon the question of damage. The court should be careful to see that the rights of the property owners are fully protected, and we do not think there are any well-founded objections to these questions. [6] There remains for consideration the rulings of the court on the prayers. The sixth, seventh, and eighth prayers we have already passed upon. The appellants submitted 15 prayers. Their first and second were granted as offered. Their third, fourth, fifth, twelfth, and fourteenth were refused as offered, but were granted with modifications by the court. Their other prayers were refused. The appellants excepted to the refusal of their prayers as offered and to the modifications made by the court. Their third and twelfth prayers were upon the subject of "damages," and are here transcribed: (3) In estimating the damages to be paid for condemnation of property, the jury must include in their award of damages not merely the market value of the land actually to be taken, but the remaining land owned by the appellants, also a due allowance of damages for injury to Laura Patterson and Sidney T. Dyer, if the jury shall find that any such injury will be caused. (12) If the jury find that Laura Patterson and Sidney T. Dyer are the owners of the ground binding on the southernmost side of Twenty-Fifth street as proposed to be opened in the proceedings now pending for that purpose, and bounded northwardly by Twenty-Fifth street and southwardly by Walbert avenue and the dividing line between the land known as the Patterson Cold Stream property and the jury further find that the opening of Adams land known as the Walbert property, and if the street as proposed in this proceeding will be injurious to the petitioners, Laura Patterson and Sidney T. Dyer, in an amount greater than the present market value of the ground contained in lot No. Z2, shown on the plat marked A and B in evidence, then the jury, in as- certaining the damages to be paid to said peti- [ was overruled by the court. The exception tioners, are not confined to the market value was based upon the ground that there was of the ground contained in said lot No. Z2, but they may and should award to the said petitioners as damages such sum of money as will fully compensate for all the injury which the jury shall so find will so be done to them by the opening of said Adams street as proposed in the present proceedings. These prayers, as offered, should have been granted, as they stated the correct rule of damage. [7] Under the power contained in section 179 of the Acts of 1912, c. 32, the court sent the jury of inquest to view the land condemned. There is a broad distinction be. tween the nature and effect of a view of the premises by a jury in a condemnation case and that of an ordinary action at law. In the first class of cases the jury is not confined to the duties and limitations which the principles of the common law impose upon a common-law jury. This subject has been fully treated in Tidewater Canal Co. v. Archer, supra. While we are not to be understood as holding that all the principles announced in that case upon the subject we are now considering are applicable to this case, we do hold that the jury may be very properly influenced as to the value of the property and the damage that would be done by the opening of the proposed street by their view of the property. In Kurrle v. Baltimore City, 113 Md. 63, 77 Atl. 373, the court said: "In eminent domain proceedings, the jury goes upon the land for the purpose of ascertaining its value, and their view should have more effect than in ordinary cases where they are generally and primarily permitted to go to the locus in quo so as to better understand and apply the evidence." The effect of the modifications made by the court to the appellants' third and twelfth prayers was to confine the jury to the evidence produced at the trial, and to shut out from their consideration the effect which the view of the property may have had upon In this the court fell into an their minds. The appellants have abandoned their exception to the refusal of their fourteenth prayer and to the modification thereto made by the court, and they do not insist upon their fifteenth prayer. Their fourth, fifth, and thirteenth prayers relate to "benefits." As the question of benefits could not be determined under the circumstances of this case, there was no error in refusing these prayers, and they should not have been granted as modified. The tenth and eleventh prayers have reference to the opening of Twenty-Fifth street, and, for the reasons already stated, were properly rejected. The record contains three prayers offered by the appellee. The first was modified by the court and granted as modified. It re no legally sufficient evidence to show that the property would be benefited. It results from what we have heretofore said that the exceptions should have been sustained and the prayer refused. We find no error in granting the second and third prayers of the ap pellee. What we have said disposes of all the questions presented, and for the errors pointed out in the rulings of the lower court, the case must be remanded for a new trial. Rulings reversed, and new trial awarded; the appellee to pay the costs. (88 Conn. 528) WALSH v. CITY OF BRIDGEPORT. (Supreme Court of Errors of Connecticut. Oct. 8, 1914.) 1. APPEAL AND ERROR (§ 724*)-ASSIGNMENTS OF ERROR-FINDINGS. Where the allegations of a complaint and in several particulars, assignments of error the findings of fact were materially different assuming that the record showed that the allegations of the complaint had been found proven were improper. Error, Cent. Dig. §§ 2997-3001, 3022; Dec. [Ed. Note.-For other cases, see Appeal and Dig. § 724.*] 2. MUNICIPAL CORPORATIONS (§ 199*)-FIREMEN-SALARY-DEDUCTION FOR SICKNESS ORDINANCES. Bridgeport City Ordinance March 15, 1909, § 134, provides that the board of fire commissioners may continue, in their discretion, the salary of any officer or member of the fire department who shall have received any injury while in the performance of his duty, incapacitating him from performing his usual duties in the department. .Held, that such provision gives not be entitled to salary during absence because rise to a conclusive inference that firemen will of incapacity to perform their duties not received while in the performance of duty. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 546; Dec. Dig. § 199.**] 3. MUNICIPAL CORPORATIONS (§ 199*)—FIREMEN-ORDINANCES-REPEAL-SALARY. Bridgeport City Ordinance March 15, 1909, § 134, provides for the regulation of the fire department of the city by a board of fire comtheir salaries, and declares that the board may missioners, prescribes the manner of paying continue the salary of a member of the department unable to perform his duties by reason usual duties of the department. In April, 1910, of incapacity received while performing the the city adopted an ordinance by which members of the fire department were divided into three classes, section 2 of which provided the yearly salaries of each grade, but made no reference to the method of compensation, the time when it was to be paid, or the power of the commissioners to continue the salary of a memthat such later ordinance did not operate as an ber when incapacitated from service. Held. implied repeal of the former, so as to warrant payment of salary to a fireman while absent from duty because of illness not contracted in the service of the department. [Ed. Note. For other cases, see Municipal lated to the question of "benefits." There Corporations, Cent. Dig. § 546; Dec. Dig. § was a special exception to this prayer, which 199.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 4. MUNICIPAL CORPORATIONS (§ 116*)-ORDI-| ed on March 15, 1909, as gives the fire commis- Where a later ordinance contains no repealing clause, it will not repeal a former ordinance unless the later one is clearly intended as a substitute for the earlier, or there_is_an irreconcilable conflict between them, and then only so far as the inconsistency extends. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 268-271; Dec. Dig. § 116.*] 5. MUNICIPAL CORPORATIONS (§ 199*)-FIRE DEPARTMENT-ORDINANCES-COMPENSATION OF FIREMEN "SALARY"-"WAGES." The plaintiff, in his assignment of errors, assumes that the record showed that the allegations of the complaint have been found to be proven. This assumption is not true. The record discloses no foundation for any such claim. [1] The allegations of the complaint and The word "salary," as used in a city ordi- the finding of facts in several particulars nance providing for the compensation of firemen, are materially different. Assignments of is synonymous with "wages," though the word "salary" is sometimes understood to relate to error should be supported by the record. compensation for official or other services, as Palmer v. Hartford Dredging Co., 73 Conn. distinguished from "wages," which is the com- 182, 190, 47 Atl. 125. pensation for labor. For other definitions, see Words and Phrases, First and Second Series, Salary, Wages.] Appeal from City Court of Bridgeport; Thomas C. Coughlin, Judge. Action by Thomas Walsh against the City of Bridgeport, to recover money alleged to have been withheld from plaintiff's salary as a fireman. Judgment for defendant, and plaintiff appeals. Affirmed. Hugh J. Lavery and Lawrence S. Finkelstone, both of Bridgeport, for appellant. John S. Pullman, of Bridgeport, for appellee. RORABACK, J. This is an action brought by Thomas Walsh, a fireman of the city of Bridgeport. The plaintiff alleges in his complaint that there is a certain sum of money due him as a portion of his salary as a fireman of the defendant city, which it, through its board of fire commissioners, refused to pay. The record shows that this case was tried in the city court of Bridgeport at its March term, 1914; that the court, having heard the parties, found the issues for the defendant, and it was adjudged that the defendant recover of the plaintiff its costs. The plaintiff appealed, and the parties agreed to a finding of facts in the case, which the trial court adopted. Upon appeal to this court the only errors assigned are: (1) "That the court erred and mistook the law in ruling that, upon the allegations of the complaint alleged and proved, said Thomas Walsh was not a salaried public officer of the city of Bridgeport." (2) "That the court erred and mistook the law in ruling that, upon the allegations of the complaint alleged and proved, the said Thomas Walsh was not entitled to his salary during the time he was absent from duty by reason of illness.' (3) "That the court erred and mistook the law in ruling that, upon the allegations of the complaint alleged and proved, the ordinance of the city of Bridgeport, which became effective on the 1st day of April, 1910, said ordinance regulating the pay of firemen of said city, did not repeal such portions of section 134 of the ordinances of the city of Bridgeport, as amend-' The third reason of appeal, although improperly framed, we shall treat, as both parties have treated it, as if properly made for the purpose of considering the action of the trial court in holding that the ordinance which took effect in April, 1910, raising the firemen's pay, did not repeal section 134 of the ordinance of 1909, which requires "an accurate semimonthly pay roll of the officers and members of the fire department, in which shall be designated the date and period of service of each officer and member and the amount due each of them to the 1st and 16th days of each month, respectively." thorizes the common council to make, alter, The charter of the city of Bridgeport auand repeal orders and ordinances regulating the fire department and fixing the salaries of its members. Pursuant to this power the common council has from time to time passed ordinances changing the pay of the city firemen and regulating the manner in which the pay rolls of the fire department should be made up. In May, 1907, the plaintiff was duly appointed a fireman of the city of Bridgeport, and is still a member of that department. [2] On March 15, 1909, the ordinance upon this subject was amended to read in part as follows: "Sec. 134. The board of fire commissioners shall keep a record of the officers and members of the department and of each separate company thereof. They shall also keep an accurate semimonthly pay roll of the officers and members of the fire department, in which shall be designated the date and period of service of each officer and member and the amount due each of them up to the 1st and 16th days of each month, respectively, and said pay rolf shall be delivered to the city auditor on or before the 1st and 16th days of each month to be kept on file. The city clerk is hereby authorized and empowered to draw his order on the city treasurer on the 1st and 16th days of each month, respectively, for the amount of such pay rolls in favor of the clerk of the board of fire commissioners or of the president of the board of commissioners, and the amount so received by said clerk of the board of fire commissioners shall be disbursed by him to the officers and members of the fire department in the manner herein provided, but, in the absence or disability of said clerk, by the president of the board of fire commissioners or such person as *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |