Md.)

JOSEPH B. DUNN & SONS v. BRAGER

517

capital "E" in the word "Every" to a small "e," [ year 1910, chapter 52, is a valid and legal since the punctuation was no part of the stat

ute.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 278; Dec. Dig. § 200.*] 3. MECHANICS' LIENS (§ 35*)-RIGHT TO LIEN

-STATUTORY PROVISIONS.

Under Laws 1910, c. 52, § 1, which, as to Baltimore city, gives a lien only for work done, a subcontractor, whose contract is on its

face an indivisible contract for labor and materials, is entitled to no lien whatever.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 40; Dec. Dig. § 35.*] Appeal from Circuit Court of Baltimore City; Chas. W. Heuisler, Judge.

Action to enforce a mechanic's lien by Joseph B. Dunn & Sons, subcontractors, against Albert A. Brager, in which Charles Lee Merrikin, trustee in bankruptcy of the Engineering & Contracting Company, contractor, intervened as a party defendant. Judgment for defendants on sustaining demurrers to the bill, and plaintiffs appeal. Affirmed.

Argued before BOYD, C. J., and PEARCE, BURKE, URNER, and STOCKBRIDGE, JJ. Randolph Barton, Jr., for appellants. Louis N. Frank and Carville D. Benson, for appel

lees.

PEARCE, J. The bill of complaint in this case was filed by the appellants, for the enforcement of a mechanic's lien claim for work done and materials furnished and used in the construction of a building belonging to Albert A. Brager, originally the sole defendant, and situated in the city of Baltimore. This work was done and materials furnished under a contract between the appellants and the Engineering & Contracting Company, a body corporate, engaged in the erection of said building for the said Brager under their contract with him, and all the formal requirements of law preliminary to the enforcement of a valid claim were complied with. The said Brager, however, demurred to the whole bill, assigning three grounds of demurrer: (1) Because the plaintiffs have not stated in their bill such a case as entitles them to any relief in equity against him. (2) Because the court is without jurisdiction to grant the relief prayed. (3) Because there is no valid law of the state of Maryland which entitles the plaintiffs to the right to a mechanic's lien, as stated in their bill. Thereafter, the Engineering & Contracting Company having been adjudicated a bankrupt, Charles Lee Merrikin, its trustee in bankruptcy, was on his petition made a party defendant, and he filed the following demurrer and answer:

statute of the state of Maryland, giving a mechanic's lien for materials, in the city of Baltimore: Because section 30 of the ConStitution of the state of Maryland provides as follows: 'Every bill, when passed by the General Assembly and sealed with the great seal, shall be presented to the Governor, who, if he approves it, shall sign the same in the presence of the presiding officers and chief clerks of the Senate and House of Delegates.' And because said alleged act of Assembly, known as chapter 52 of the Acts of 1910, when passed by the General Assembly and sealed with the great seal, read, in part, as follows: 'Every building erected and every building repaired rebuilt or improved to the extent of one fourth its value in Baltimore City and in any of the Counties shall be subject to a lien for the payment of all debts contracted for work done for or about the same and in the Counties Every such building shall also be subject to a lien for the payment of all debts Contracted for Materials furnished for or about the same—as will more fully appear by the original act, as ate and House of Delegates of the state of passed by the yea and nay vote of the SenMaryland, which is herewith filed, marked Respondent C. L. M. Exhibit A,' and which it is prayed may be taken as part hereof, and as will more fully appear by said original bill, as engrossed and referred to the Attorney General, and by the advice of said Attorney General, and at the request of the General Assembly of Maryland, returned to said General Assembly for amendments, and, as amended passed by said General Assembly by the yea and nay vote of each house thereof, and sealed with the great seal of the state of Maryland, as will more fully appear by said last-mentioned bill, which is herewith filed, marked 'Respondent C. L. M. Exhibit B,' and which is prayed may be taken as part hereof.

"And said alleged act of Assembly, when passed and sealed as aforesaid, was enrolled, and during said enrollment, through error or inadvertence, was made to read, by the improper, inadvertent, and unauthorized insertion of a period, contrary to the acts and intent of the General Assembly of Maryland, as follows: 'Every building erected and every building repaired rebuilt or improved to the extent of one fourth its value in Baltimore City and in any of the Counties shall be subject to a lien for the payment of all debts contracted for work done for or about the same and in the Counties. Every such building shall also be subject to a lien for

"Answering said bill of complaint, this re- the payment of all debts Contracted for Maspondent says:

"(1) That this respondent admits the allegations contained in paragraphs 1, 2, 3, 4, and 5 of said bill, but denies that the act of Assembly of the state of Maryland of the

terials furnished for or about the same." And as enrolled as last above set forth was signed by the Governor of the state of Maryland, and by reason thereof said act of Assembly, signed as aforesaid, is not a valid

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

law of the state of Maryland. And because | what was the situation after the passage of said alleged act, as signed by the Governor chapter 52 of 1910 is to ascertain what was of the state of Maryland, 'was not passed in the situation immediately preceding its paseach house by a majority of the whole num- sage. At that time section 1 of article 63, ber of members elected,' in accordance with Public General Laws, title "Mechanic's Lien,' the requirements of section 28 of the Consti- was as follows: tution of the state of Maryland. Wherefore, having as fully answered said bill as this respondent is advised is necessary and proper, this respondent prays to be hence dismissed with costs. And as in duty bound, etc. Carville D. Benson, Sol. for Respondent. Chas. Lee Merriken, Respondent. [Affidavit attached.]"

"Every building erected and every building repaired, rebuilt or improved to the extent of one fourth its value in Baltimore city and in any of the counties shall be subject to a lien for the payment of all debts contracted for work done for or about the same; and in the counties, except Baltimore county, every such building shall also be subject to An agreed statement of facts was filed, a lien for the payment of all debts conadmitting that "C. L. M. Exhibit A," referred tracted for materials furnished for or about to in the answer, is the original bill mention- the same. In Baltimore county nothing in ed therein as passed by the General Assem- this article except as provided in section 20, bly of Maryland, and that "C. L. M. Exhibit shall entitle any person, firm or corporation B," referred to in the answer, is the enrolled to the benefit of such lien upon any such copy of said bill so passed, and presented building for materials furnished for or about to the Governor of the state for his signa- the same, unless the contract for furnishing ture, and that these exhibits should be used such material shall have been made directly in the circuit court and in this court, for the with the owner of such building or his agent. purpose of viewing the writing and punctua- This section shall not affect or impair liens tion, and for any purpose for which they existing in Baltimore county on April 11th, would be admissible. if regularly offered and 1902, under pre-existing law." It is clear, proved; but the plaintiffs reserved the right beyond question, that under that section, the to object to their admissibility as evidence existing situation up to that point of time for any purpose. The testimony of Carville was that in Baltimore city there was no lien, D. Benson, a member of the House of Dele- except for work done; that in Baltimore gates of Maryland at the January Session county there was a lien for work done, but of 1910, when the bill referred to was passed, none for materials furnished, except when and who was thoroughly familiar with the the contract therefor was directly with the method and routine of enacting laws, and owner of the building or his agent; and that with the history of the passage of that in all the other counties of the state there particular bill, was also taken, and he exwas a lien, both for work done and materiplained at length every step in its passage, als furnished in all cases. in support of the averments of the answer relating thereto. The plaintiffs objected to the introduction of Exhibits "C. L. M. A" and "C. L. M. B," and to all the evidence of Carville D. Benson, and, these objections being overruled, they excepted to these rulings, and the court sustained the demurrers and dismissed the bill, and this appeal is from that decree. The record thus raises the question, both of the validity and interpretation of chapter 52 of the Acts of 1910, relating to mechanics' liens.

The appellants contend that the act is valid, and that by its provisions a lien is given in Baltimore city, as well as in the counties of the state, for the payment of debts, both for labor and material. The appellee contends that under the true interpretation of the act the lien for material debts is confined to the counties, and does not exist in Baltimore city, and also suggests, rather than contends, that the act, as signed and printed in the published volume of Laws of 1910, differs from the act as it actually passed the General Assembly, and is therefore not a valid act at all. The circuit court held the act to be valid, and sustained the interpretation placed upon it by the appellee.

Section 281 of chapter 495 of 1908 repealed and re-enacted the whole Code of Public Local Laws, title "Baltimore County"; and section 281 of that article, which was the only one relating to mechanics' liens, was as follows: "Every building erected, and every building repaired, rebuilt or improved in Baltimore county to the extent of one-fourth its value, shall be subject to a lien for the payment of all debts contracted for work done or materials furnished for or about the same; provided that nothing in article 63 of the Public General Laws, title 'Mechanics' Liens,' except as provided in section 20 thereof, shall entitle any person, firm or corporation, to the benefit of such lien upon any such building in Baltimore county for materials furnished for or about the same, unless the contract for furnishing such material shall have been made directly with the owner of such building or his agent." The situation of Baltimore county was therefore the same, whether regard be had to the public general or to the public local law. In the meantime, there was no change in the legislation upon that subject, relating to Baltimore city; the lien being consistently confined there to debts for work done.

JOSEPH B. DUNN & SONS v. BRAGER

it will not be allowed to confuse a construction otherwise clear." If the punctuation be disregarded, it will be impossible to read the text of this act without instantly and unhesitatingly determining that the sole purPose of the Legislature was to put Baltimore county upon the same footing as all the othlaw relating to Baltimore city. This purer counties of the state, without altering the pose will be made clear by striking out the period after the word "counties," changing the capital "E" in the word "every" to a small "e," and inserting a comma after the The period and the capital "E" following break into two sentences what was evidently designed to be one sentence, and destroy what would otherwise be the clear meaning of the language used. Almost the identical change now proposed was made in Manger v. Board of Examiners, 90 Md. 659, 45 Atl. 891; Judge McSherry saying: "Neither bad grammer nor inaccurate punctuation can alter the obvious sense of a legislative enactment. This is necessarily so. The statutes in England are not punctuated in the original rolls; but more or less marks of punctuation appear in them as printed, by authority. With us, the punctuation is the work of the draftsman, the engrossers, or the printers. In the legislative body, the bills are read, so that the ear, not the eye, takes cognizance of it. Therefore the punc

*

tuation is not, in either country, of controlling | in the circuit court, stating the ground upon effect in the interpretation." The same view is held by other courts of high standing. In Martin v. Gleason, 139 Mass. 183, 29 N. E. 664, the court said, "Punctuation may sometimes be properly disregarded." In Gyger's Estate, 65 Pa. 311, Judge Sharswood said, "No punctuation ought to control a statute;" and in Randolph v. Bayue, 44 Cal. 366, the court said, "Punctuation cannot be permitted an effect which would lead to absurdity." The repetition in the statute before us of the words "and in the counties" is meaningless as the punctuation stands, because the counties are provided for by the earlier use of the same words; but, when the punctuation is changed as indicated, the meaning of the latter words becomes apparent, and legal effect is given to their use. We therefore fully concur in the interpreta-ers, tion of this act by the learned judge of the

circuit court.

[3] The appellants suggested that in any event they were entitled to a lien for the work done, and that the bill should have been retained for that purpose. But the contract in this case was an indivisible contract upon its face for labor and materials, and in Evans Marble Company v. International Trust Company, 101 Md. 210, 60 Atl. 667, 109 Am. St. Rep. 568, it was held under such a contract there was no enforceable lien whatever. The bill was therefore properly dis

missed.

Decree affirmed, with costs to the appellees above and below.

(116 Md. 220)

CHESAPEAKE & POTOMAC TELEPHONE
CO. OF BALTIMORE v. BOARD OF
COUNTY COM'RS.
(Court of Appeals of Maryland. June 23,
1911.)

which the exemption is claimed, or denying whether the property is subject to assessment, ownership, and provides for a determination or should be valued to the alleged owner. Chapter 430, approved four days after chapter 300, adds section 17a to Code Pub. Gen. Laws 1904, art. 81, which section provides that any person, claiming to be aggrieved "because of an assessment made by the county commissioners ** or because of the failure to reduce or abate an existing assessment," may appeal to the circuit court, and that the directions of article 81, § 17, as to appeals to the Baltimore city court, shall apply to proceedings in the circuit courts, provided that the section shall not apply to assessments under Acts 1896, c. 120. Section 17 provides for an appeal to the Baltimore city court by one aggrieved by an assessment of the appeal tax court of Baltimore, or for failure to abate or reduce an existing not authorize an appeal to the circuit court assessment. Held, that chapter 300, § 21, did from an assessment by the county commissionacting as a board of control and review, on the ground that the valuation and assessment [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 493.*]

was excessive.

3. TAXATION ($ 493*)- ASSESSMENT-APPEAL TO CIRCUIT COURT-EXCESSIVE VALUATION.

Laws 1910, c. 430, § 17a, does not authorof an excessive valuation and assessment by ize an appeal to the circuit court on the ground the county commissioners, acting as a board of control and review; that section only applying to "existing" assessments, and not to those in course of being made.

[Ed. Note.-For other cases, see Taxation, Dec. Dig. § 493.*]

4. TAXATION (§ 493*) - ASSESSMENT-APPEAL TO CIRCUIT COURT-EXCESSIVE VALUATION.

Laws 1910, c. 430, § 17a, would not authorize an appeal to the circuit court from an assessment by the county commissioners, acting as a board of control and review; the assessment being a new general assessment, made under chapter 300, and the section only applying to assessments made from time to time by the county commissioners as such.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 493.*]

Appeal from Circuit Court, Allegany Coun

1. APPEAL AND ERROR (§ 78*)-ORDERS AP-ty; Robert R. Henderson, Judge. PEALABLE-FINAL ORDER.

Where, though a demurrer to the petition was sustained in a proceeding to review the refusal of the county commissioners, acting as a board of control and review, to abate an assessment, the petition was not dismissed, and no final disposition made of the case, the order sustaining the demurrer was not final so as to be appealable.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 78.*]

2. TAXATION (§ 493*)- ASSESSMENT-REVIEW BY CIRCUIT COURT-GROUNDS OF APPEALEXCESSIVE VALUATION.

Proceedings by the Chesapeake & Potomac Telephone Company of Baltimore City against the Board of County Commissioners, sitting as a Board of Control and Review. From an order sustaining a demurrer to the petition, petitioner appeals. Appeal dismissed.

Argued before BOYD, C. J., and PEARCE, BURKE, URNER, and STOCKBRIDGE, JJ. Shirley Carter, for appellant. Harry R. Donnelly, for appellee.

Laws 1910, c. 300, providing for a general BOYD, C. J. The appellant filed an appeal valuation and reassessment of property for in the circuit court for Allegany county from taxation, provides for the return of the assess- what it alleged to be an exorbitant valuation ments authorized by the act to the county com- and unlawful assessment of its wires and missioners, sitting as boards of control and review. Section 7 requires such boards to be cables in Allegany county, and prayed that sworn before entering upon their duties. Sec- the increase in the valuation of the same, as tion 20 gives such boards the power to correct made by the county commissioners of that any assessments returned to them, and to in- county, sitting as a board of control and recrease any valuation returned. Section 21 permits one claiming not to own property assessed view, be reviewed by that court and abated to him, or that is exempt, to file a petition or reduced. The petition alleges that the ap

CHESAPEAKE & POTOMAC TEL. CO. v. BOARD OF COUNTY COM'RS