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Md.) JOSEPH B. DUNN & SONS V. BRAGER 517

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capital “E” in the word “Every” to a small “e, since the punctuation was no part of the statute. IEd. 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, J.J.

Randolph Barton, Jr., for appellants. Louis N. Frank and Carville D. Benson, for appellees.

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 BaltiImOre. 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:

“Answering said bill of complaint, this reSpondent 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

year 1910, chapter 52, is a valid and legal 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 passed by the yea and nay vote of the Senate and House of Delegates of the State of Maryland, 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 may 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 the payment of all debts Contracted for Materials 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 law of the state of Maryland. And because Said alleged act, as Signed by the GOVernor of the state of Maryland, ‘was not passed in each house by a majority of the whole number of members elected, in accordance With the requirements of section 28 of the Constitution 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.]” An agreed Statement of facts Was filed, admitting that “C. L. M. Exhibit A,” referred to in the answer, is the original bill mentioned therein as passed by the General Assembly of Maryland, and that “C. L. M. Exhibit B,” referred to in the answer, is the enrolled copy of said bill so passed, and presented to the Governor of the State for his Signature, and that these exhibits should be used in the circuit court and in this court, for the purpose of viewing the Writing and punctuation, and for any purpose for which they would be admissible. if regularly offered and proved; but the plaintiffs reserved the right to object to their admissibility as evidence for any purpose. The testimony of Carville D. Benson, a member of the House of Delegates of Maryland at the January Session of 1910, when the bill referred to was passed, and who was thoroughly familiar with the method and routine of enacting laws, and with the history of the passage of that particular bill, was also taken, and he explained at length every step in its passage, 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.

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

what was the situation after the passage of chapter 52 of 1910 is to ascertain What WaS the situation immediately preceding its pasSage. At that time Section 1 of article 63, Public General LaWS, title “Mechanic's Lien,” Was 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, except Baltimore county, 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. In Baltimore county nothing in this article except as provided in Section 20, shall entitle any person, firm or corporation to the benefit of such lien upon any such building 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. This Section shall not affect Or impair liens existing in Baltimore county on April 11th, 1902, under pre-existing law.” It is clear, beyond question, that under that Section, the existing situation up to that point of time was that in Baltimore city there was no lien, eaccept for work done; that in Baltimore county there was a lien for work done, but none for materials furnished, eaccept when the contract therefor was directly with the owner of the building or his agent; and that in all the other counties of the State there was a lien, both for work done and materials furnished in all CaSeS. 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.

Md.) JOSEPH B. DUNN & SONS V. BRAGER - - 519

now in question, the title and text of which iS aS followS:

“An Act to repeal Sec. 281 Of Art. 3 of the Code of Public Local LaWS of Maryland, title ‘Baltimore County, as said section was enacted by Chapter 495 of the Acts , of 1908 of the General ASSembly of Maryland, and also to repeal and re-enact with amendments Section 1 of Article 63 Of the Code of Public General Laws, title “Mechanic's Lien, as amended by the Acts of 1902, chapter 432.” “Section 1. Be it enacted by the General ASSembly Of Maryland that Section 281 Of Article 3 of the Public Local Laws of Maryland, | title ‘Baltimore County, as said section was enacted by Chapter 495 of the Acts of 1908 of the General Assembly of Maryland, be and the same is hereby repealed, and that Section 1 Of Article 63 Of the COde Of Public General Laws of Maryland, title “Mechanic's Lien,” as amended by the Acts of 1902, Chapter 432, be and the same is hereby repealed and reenacted With amendmentS SO aS to read as follows: “1. 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. “Sec. 2. And be it further enacted, that this Act shall take effect from the date of its paSSage.”

The punctuation and capital letters in the above transcript are precisely as they appear in the printed volume. In C. L. M. Exhibit A, there is not a single punctuation mark of any description, except the period at the end Of the Section, and the great Seal Was never impressed thereon; nor was it signed by the Governor and the presiding officers of the Senate and HOUSe Of Delegates. C. L. M. Exhibit B is the enrolled copy of this bill, upon which the great seal was impressed, and Which Was presented to the Governor for his Signature. Before it Was Signed, however, it was returned to the Senate, in reSponse to a message from that body, and, after making certain amendments to the title and body of the act, which in no way affect the question in this case, it was passed by both houses as amended. There is not a Single punctuation mark in this exhibit, of any description, except the period at the end of section 1, but capital letters are used in Several placeS, aS in the Word “Counties”

whenever it occurs; in the word “Every,” be-,

tween the words “Counties” and “such”; in the word “Contracted” as last used in that Section, and in the Word “Materials” as last used therein, thus indicating a total absence of discrimination and significance in the use of capital letters.

[1] We have examined and compared the

printed act With the Original Second enrolled

copy, signed by the Governor, and on file in the office of the clerk of this court, and it agrees in every respect With the printed act, except that there is no comma after the word “repaired” in the first line. In all other respects there is the same faulty and unmeaning punctuation. The only difference between the two exhibits—the enrolled and signed act on file in the clerk's office of this court, and the printed act—is in the punctuation. Unless, therefore, punctuation is held to be an essential part of an act as passed by the Legislature, this act, as signed by the Governor, and as printed in the statute book, is the same act passed by the Legislature, and not another or different act, and is not invalid because of merely inaccurate punctuation, or the absence Of punctuation. [2] If the punctuation can be supplied, or altered, so as to render the language of the act intelligible, and to bring it into accord with the obvious purpose of the Legislature, it is the plain duty of the court to supply the defect, or make the change; and, as that result can be accomplished in this Case by a slight change, and in accordance with deCisions Of Our OWn and Other COurtS, We cannot hold this act to be invalid. In Weatherly v. Mister, 39 Md. 629, the court said: “Punctuation may perhaps be resorted to When no other means can be found Of Solving an ambiguity, but not in cases Where no real ambiguity exists, except what the punctuation itself creates. In Such cases, 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 other counties of the state, without altering the law relating to Baltimore city. This purpose 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 word . “Same.” 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 W. 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 roll.S; 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 punctuation is not, in either country, of controlling effect in the interpretation.” The same View is held by other courts of high standing. In Martin W. 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 interpretation 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 dismissed.

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

(116 Md. 220) CHES.APEAKE & POTOMAC TELEPHONE CO. OF BALTIMORE V. BOARD OF COUNTY COM’RS. (Court of Appeals of Maryland. June 23, 1911.)

1. APPEAL AND ERROR ($ 78*)—ORDERS APPEALABLE-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. Laws 1910, c. 300, providing for a general valuation and reassessment of property for taxation, provides for the return of the assessments authorized by the act to the county commissioners, sitting as boards of control and reView. Section 7 requires such boards to be sworn before entering upon their duties. Section 20 gives such boards the power to correct any assessments returned to them, and to increase any valuation returned. Section 21 permits one claiming not to own property assessed to him, or that is exempt, to file a petition

in the circuit court, stating the ground upon Which the exemption is claimed, or denying ownership, and provides for a determination Whether the property is subject to assessment, 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 assessment. Held, that chapter 300, § 21, did not authorize an appeal to the circuit court from an assessment by the county commissioners, acting as a board of control and review, on the ground that the valuation and assessment WaS eXCeSSIWe.

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

3. TAXATION (§ 493*) – AssEssMENT—APPEAL

To CIRCUIT COURT-ExCEssIVE VALUATION. - Laws 1910, c. 430, § 17a, does not authorize an appeal to the circuit court on the ground of an excessive valuation and assessment by 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 County; Robert R. Henderson, Judge.

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, J.J.

Shirley Carter, for appellant. Harry R. Donnelly, for appellee.

BOYD, C. J. The appellant filed an appeal in the circuit court for Allegany county from What it alleged to be an exorbitant Valuation and unlawful assessment of its wires and cables in Allegany county, and prayed that the increaSe in the Valuation Of the Same, aS made by the county commissioners of that county, sitting as a board of control and reView, be reviewed by that court and abated or reduced. The petition alleges that the ap

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pellant returned all of its assessable property in the respective election districts and asSeSSment districts of the county, and that the valuation set upon the wires and cables by it in its return was the full value of the same; that, on January 6, 1911, the appellees notified the appellant that they had increased the Valuation as returned by it, by doubling that so set upon its iron and copper wire and aërial and underground cables; that it, on the 9th day of January, filed its appeal with the county commissioners, sitting as a board of control and review, setting forth that the increase in Valuation of its Wires, etc., Was not warranted by law, and prayed the board of county commissioners to abate the inCrease; that after a hearing they, Sitting aS a board of control and review, notified petitioner that they had decided to leave the valuation as made by them. The circuit court passed an order, setting Said petition and appeal down for hearing, and directing a subpoena duces tecum to be iSSued to the County Commissioners, Sitting as a board of control and review, requiring them to produce the record of proceedings, and all papers and documents in reference to the Valuations and aSSeSSments appealed from. The defendants demurred to the petition, for the reasons: (1) That it did not allege that the property mentioned was exempt from assessment, valuation, and taxation. (2) That it did not allege that it was not the property Of the petitioner, and should not be assessed as such. (3) And for other reasons to be made known at the hearing. The demurrer was sustained by a short entry to that effect on the docket, and the appeal was taken four days thereafter. [1] The petition was not dismissed, and no final disposition of the case was made, by entry of judgment for costs or otherwise. It Was not a proceeding in equity; and hence it Was not Such a case as McNiece V. Eliason, 78 Md. 168, 27 Atl. 940, referred to by the appellant, but, as there was no motion to dismiss the appeal, and the questions involved Were fully argued, We Will State Our Views on them, as we understand from the appellant's brief the ruling on the demurrer conCludes the Case. [2] We have no doubt that the lower court was right in holding that there was no appeal to that court oil the grounds alleged in the petition. Chapter 300 of the Acts of 1910 is “An act to provide for the general revaluation and reassessment of property for purposes Of taxation in all the counties of this state except Somerset and Worcester counties.” Due provision is made by that act for assessments by the assessors authorized to be appointed, and upon the completion of their work for the return of the assessments, Schedules, and returns filed with them, as well as all books, documents, etc., to the County Commissioners of the respective counties, sitting as boards of control and review.

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

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The members of the respective boards of control and review are required to take the oath set out in section 7 before entering upon their duties, which of itself indicates that they were not acting in the discharge of their Ordinary duties as county commissioners.

By section 20, the boards of county commissioners, acting as boards of Control and review, are required to give notice of their meetings, and to proceed to consider the returns made by the assessors, and to hear and determine the appeals authorized by Section 16 (which are not applicable to this case). That Section (20) Specifies a number of duties and powers of the boards of County Commissioners, acting as boards of control and reView; amongst others, that they “shall have p0Wer to COrrect any Valuation Or aSSeSSlment returned to them, respectively, whether any complaint or appeal has been made in relation thereto or not,” and “shall have the power to increase any Valuation So returned to them, respectively, in every case in which they Shall deem it proper to make due inCrease,” provided notice of Such increase is given, etc.

Section 21 provides that each board of control and review Shall, with the aid of their clerks, enter and record in books to be printed for the purpose accurate and fair accounts of all the properties within their respective Counties, Which have been Valued as provided. The said records shall show the name of each owner in each election district, the property Valued to him, description of the properties, etc. Indexes are required to be made, and the boards of control and review were required to return the books and indexes SO prepared to the county commissioners “not later than sixty days after they shall have respectively as boards of control and review begun their work of reviewing the returns of Said assessors in the said Counties,” unless the Governor extended the time.

It then provides that: “The owner of property or owner to whom property has been valued and who shall claim that the property so to him, her or it valued is not owned by him, her or it, or is exempt from Valuation or assessment * * * may file a petition in the circuit court for that county in which the said property has been so valued, setting forth the facts of the said case and the ground upon which said exemption is claimed or denying all said ownership.” It then provides for a hearing by the court, and for the court determining “whether the said property, SO Valued to the said owner, is or is not subject to such valuation and assessment, or ought not to be valued to said alleged owner,” etc. Section 22 provides for cases. Where property, not exempted, has not been valued; and section 23 provides for appeals to this court by parties to the proceedingS mentioned in Sections 21 and 22, and that on such appeals the original papers be transmitted.

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