(107 A.) original third count as a part of the declara-ed in the preceding paragraph, nothing furtion, was commenced within two years from ther need be said to show that it departs in the time the cause of action alleged and de- point of fact, and also in point of law as a clared upon in the amended third count ac- ground of action, from the case first made by crued to the plaintiff, and that said cause of plaintiff in the counts therein specified, in action is all and the same as in this repli- that facts not material to an action at comcation is set forth, concluding with a verifi- mon law, and not alleged in the counts mencation. To these replications defendant de- tioned and which do not support or fortify murred severally, specifying as one ground them, but essential to the cause of action of demurrer that the replication is defective prescribed by the federal statute, are averred in that it avers and sets forth in substance in the replication to bring the case within that the cause of action alleged in the orig- that statute. Such a defect in pleading is inal third count is the same cause of action properly reached by demurrer. White v. Cenalleged in the amended third count, whereas tral Vermont Ry. Co., 87 Vt. 330, 89 Atl. 618; in fact the former is founded on the com- Niles v. Central Vermont Ry. Co., supra. mon law, while the latter is founded on an act of Congress. Plaintiff joined in these demurrers, and we shall recur to them further on. On the same day of plaintiff's filing the amended third count he, repleading, filed a replication to defendant's first and second pleas to the first, second, fourth, and fifth counts. As to the first plea, so far as re lates to those counts, the plaintiff joined issue. As to the second plea, so far as it relates to those counts, plaintiff replied precludi non, because he says, in effect, that the matters and things set forth in those counts occurred, and the cause of action set forth accrued, subsequently to the taking effect of the federal statute mentioned above, and that at the time when, etc., the defendant was a common carrier, engaged in interstate commerce, and that when the plaintiff was injured he was employed by defendant in such commerce. To this replication defendant demurred, specifying as grounds, among others: (2) That said replication is a complete departure from the said counts; (9) that it undertakes to make the said counts, counts under the federal statute when, at the time the replication was filed, the plaintiff had no right of action by law of that statute. In this demurrer plaintiff joined. [9] This demurrer and the two noticed in the next preceding paragraph, being heard before Judge Fish in vacation, were severally overruled and exception saved to defendant. Each of these demurrers was well put in, and should have been sustained. As seen from what has already been said, there is no doubt, as matter of law, that on the record the cause of action alleged in the amended third count is not the same as that alleged in the original third count. This being so, the averment in the replication demurred to that it is the same is not controlling. Sawyer v. Child, 83 Vt. 329, 75 Atl. 886. It was but an opinion or conclusion of the pleader. Nelson v. Montgomery First Nat. Bank, 139 Ala. 578, 36 South. 707, 101 Am. St. Rep. 52. It follows that the replications noticed in the second preceding paragraph were no answer to the pleas in reply to which they were filed, and to overrule the demurrers was error. [10, 11] Regarding the replication mention Defendant elected to abide by its demurrers, whereupon, at the next term of the trial court, judgment was rendered against it on all three of the demurrers, and the case ordered for trial on the question of damages. Exception was taken to the judgment so rendered, on the ground that thereby defendant was deprived of the equal protection of the law guaranteed by the Fourteenth Amendment of the Constitution of the United States, and it violates article 6 of that Constitution. Exception was also saved to the ordering of the case to trial on the question of damages; also to the impaneling of the jury for such trial, on the ground that the court had no right to force defendant to trial at that time on the state of the pleadings; also to the judgment rendered on the verdict. The effect of overruling the demurrers was to leave in the case the amended third count, and the first, second, fourth, and fifth counts, as founded on the federal statute, and consequently the judgment rendered on the demurrers was based on that statute, and the verdict on which judgment was had in damages was returned by the jury under instructions from the court that the "damages are regulated by the federal statute, differing from the assessment of damages under the common law of Vermont." Yet all the rulings and judgments mentioned in the preceding paragraph were erroneous; that statute afforded no basis therefor, since, as before pointed out, defendant's liability under it, if such there ever was, had become extinguished before the plaintiff, by changing his pleadings, attempted to invoke the federal law as the ground of action. [12] The constitutional questions raised have not been considered, since the decision of them does not appear to be necessary to the final determination of the case. Blanchard v. City of Barre, 77 Vt. 420, 60 Atl. 970; State v. Boston & Maine R. R., 82 Vt. 121, 71 Atl. 1044. The power of Judge Fish to make some of the rulings mentioned as made by him in vacation stands challenged and briefed; but it is passed without further notice, deeming a decision of the questions particularly affecting the case itself more in the interests of the parties. On the reversal of the judgments | deduction from the assessment of benefits the exand remand, the case will stand, as in the first instance, for trial on the merits at common law. Judgment reversed, and cause remanded. (135 Md. 36) MAYOR AND CITY COUNCIL OF CITY OF (Court of Appeals of Maryland. June 25, 1919.) Under Baltimore City Charter, § 179, relating to appeals from the action of commissioners for opening of streets, the Baltimore city court is without jurisdiction of a petition to reduce the assessment of benefits for the opening of a street to an amount equal to the expense, where after disposition of appeals involving the assessment of damages, etc., the commissioners did not have any opportunity to reduce from the assessments the proper proportion of the excess benefits over the amount of damages and expenses. 2. MUNICIPAL CORPORATIONS 488, 489(9)OPENING OF STREETS-APPEAL-RIGHT OF. The duty of the commissioners for opening of streets of Baltimore to deduct from the as sessment of benefits the excess of the benefits cess of benefits assessed over the expenses and damages, the commissioners for opening of streets not having had an opportunity to make the deduction, evidence of expenses incurred by the city, as well as the value of its own lots within the area of improvement, was inadmissible. Appeal from Baltimore City Court; James M. Ambler, Judge. "To be officially reported." Petition by the Maryland Trust Company against the Mayor and City Council of the City of Baltimore and the Commissioners for Opening Streets in the city of Baltimore, in which another intervened. From an order in favor of petitioner alone, the city appeals. Order reversed, and petition dismissed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. S. S. Field, City Sol., of Baltimore, for Mayor and City Council of Baltimore and others. Charles McH. Howard and Sylvan Hayes Lauchheimer, both of Baltimore (Joseph S. Goldsmith, of Baltimore, on the brief), for Maryland Trust Co. and Safe Deposit & Trust Co. of Baltimore City. THOMAS, J. On the 27th of January, 1913, the Maryland Trust Company appealed from the action of the commissioners for opening streets in the matter of condemning and opening the Fallsway, and alleged in its petition that the benefits assessed against it in reference to its lot, designated as lot No. 1162, in the return of said commissioners, were excessive, and that the commissioners for opening streets had no authority to make any assessments in the matter (1) because under the Act of 1910, c. 110, all expenses in connection with the acquiring of land for said highway were to be paid out of the loan IM-authorized by that act; (2) because the commissioners for opening streets was not the proper city agency for the condemnation of land, etc., for said highway, the same having been committed to the commission on city plan; (3) because Ordinance No. 70, approved February 9, 1912, specifically referred to chapter 110 of the act of 1910, which provides for the opening, etc., of said highway under the direction of the commission on city plan; (4) because the damages and benefits awarded by the commissioners for opening streets were illegally awarded, in that the property of the city within the assessed area, from - PROCEEDINGS FOR DEDUCTIONS-QUESTIONS Where there was no appeal from order of the court striking out items of expense allowed by the commissioners for opening of streets of Baltimore in the list of expenses returned by them, the propriety of such order cannot be reviewed in a proceeding brought by landowners whose property was benefited, after disposition of the various appeals from assessment of damages, to deduct from the assessment the excess of benefits assessed over the amount of damages and expenses. - 4. MUNICIPAL CORPORATIONS 495-PUBLIC which it derives revenue, was not assessed Where Baltimore city court had no jurisdiction of petition by property owner to compel for benefits. The petition prayed the court to review the decision and awards of the commissioners for opening streets, to determine whether the commissioners for opening streets had any authority in the matter, and (107 A.) whether all the expenses incident to the of law affecting the condemnation proceedopening of said Fallsway were not to be paid ings," the parties on May 28, 1914, filed an out of the loan authorized by the act of 1910. agreement that the property of the trust Thereafter, on the 15th of May, 1914, the company was benefited to the extent of the trust company filed in said case a petition assessment of $94, and that no testimony as alleging that when the commissioners for to the amount of benefits would be produced. opening streets made their final return in the The case was submitted to the court without matter, their statement of damages awarded, a jury, and the court signed an inquisition expenses incurred, and benefits assessed er- assessing the benefits against the trust comroneously showed the aggregate amount of pany at $94. The court also signed an order damages awarded and expenses incurred in that the three items of expenses mentioned said condemnation proceedings to be the in the trust company's petition of May 15, sum of $434,943.89 and the total sum of bene- 1914, be stricken from the condemnation book fits assessed to be $393,358.75, and that upon for the opening of the Fallsway, and that inspection it was discovered that the commis- the total damages and expenses shown by sioners had unlawfully and improperly in- said book to be $434,943.14 be changed to cluded among the expenses of said proceed- $135,835.14. At the hearing the trust comings the following items, "expenses of com- pany offered in evidence an agreement of mission on city plan, $6,108.75, estimated cost counsel stating, among other things, that it of viaduct, $225,000, estimated cost of grading appeared from the condemnation book re$68,000"; that in the case of Brown, Trustee, turned by the commissioners for opening V. Mayor and City Council of Baltimore, the streets that the damages awarded by the Baltimore city court had ordered those items commissioners amounted to $128,616.98, and to be stricken out of said return, and the cal- that in the statement of expenses contained culations of the commissioners altered ac- in said book, aggregating $306,326.91, were cordingly; that when said items shall have the three items referred to in the petition of been stricken out in accordance with said the trust company of May 15, 1914. The order the aggregate amount of damages and agreement further stated that the aggregate expenses will be reduced to the sum of $135,- amount of benefits assessed was $393,358.75. 835.14; that the said amount of benefits as- The trust company also offered in evidence sessed being largely in excess of the amount the proceedings in the appeal of Brown, trusof damages and expenses, the benefit assess- tee, to the Baltimore city court from an ments, to the extent of such excess, are il assessment of benefits for the opening of the legal and void. The petition prayed the Fallsway, in which the court passed the court to decrease proportionately all assess- order referred to in the trust company's pements of benefits so that the total amount tition of May 15, 1914, directing the commisof benefit assessments would not exceed the sioners to strike from the list of expenses the aggregate amount of damages and expenses. three items mentioned in said petition and In its answer to the petition of the trust to make the corresponding change in the company of May 15, 1914, the city alleged total. The city offered to prove that the valthat the report of the commissioners for ue of 217 lots in the bed of the Fallsway (for opening streets did not show the entire cost which the commissioners had allowed damof opening the Fallsway, because only nomi- ages of $1 per lot), assuming the bed to be nal damages were allowed by the commis- dry and at its original grade, would be sioners for the bed of Jones' Falls, and that $308,162, and that if filled up and brought by adding the value of the bed of the Falls to the grade of adjoining lots, the value of the real cost of the inprovements would ex- said lots would be $356,724. The trust comceed the aggregate amount of benefits assess-pany objected to the evidence, and the court ed; that a large number of appeals were then pending from damages as well as benefits, and that until they were disposed of no one could say what the entire damages and expenses will be; that the commissioners allowed only nominal damages for the bed of the Falls on the theory that the bed belonged to the city, and that if the contrary should be determined in any of the appeals from damages, the damages and expenses would exceed the benefits assessed by the commissioners; and that the total amount of damages and benefits was immaterial in this case, because the sole question in the case is the amount that the appellant is actually benefited by the opening of the Fallsway. For the purpose of having the court below determine, without delay, "certain questions sustained the objection, whereupon the city moved the court to correct the book of proceedings of the commissioners by inserting therein, "among the damages," "value of the bed of the Fallsway," $356,724, but the court overruled the motion. The city proved that the sewerage commission had brought the bed of the Falls to grade by constructing concrete tubes which furnished the foundation upon which the Fallsway pavement was laid, and then offered to prove that the cost of the tubes, "which were constructed for the double purpose of carrying the water of Jones' Falls to the harbor and furnishing a base for a street over the Falls," was $1,059,771.55, but the court, upon objection by the trust company, refused to admit the evidence. The city proved by Mr. Grannan, one of the com missioners, that the commissioners made nominal awards of $1 for each lot in the bed of Fallsway, believing that the Fallsway belonged to the city; that the Falls was divided into a large number of lots on the damage plat, and that he did not make any estimate of the actual value of the Fallsway. It was admitted by the trust company that there were pending about 170 appeals from the return of the commissioners for opening streets, some of which related to awards of damages. The evidence being closed, the court below refused to grant the prayer of the trust company in its petition of May 15, 1914, and its action was made the subject of the first exception of the trust company. The second exception was to the rejection of the trust company's prayer, and to the granting of the following prayers of the city: "The court rules as a matter of law that, it being admitted by agreement of counsel that the petitioner's property is actually benefited by the opening of the Fallsway to the amount of $94, the inquisition of the court sitting as a jury should be for the sum of $94 benefits in this case." "The court rules as a matter of law that it is impossible now to ascertain the total damages and expenses of opening the Fallsway, and therefore the court cannot cut down the benefits upon the petitioner, upon the contention that the aggregate benefits exceed the total damages and expenses." On the 18th of June, 1915, the trust company entered an appeal from the "rulings, inquisition, and judgment in" the case, and in disposing of that appeal Chief Judge Boyd, speaking for this court, after stating that the first exception was to the refusal of the lower court to grant the prayer of the trust company's petition of May 14, 1915, and after setting out the two prayers of the city referred to in the second exception, said: exceed the damages and expenses in making this improvement. We have no means of determining that question of fact under present conditions, and therefore will express no opinion on it, but notwithstanding what we have court. It is admitted in the record that there said, we must affirm the action of the lower are now pending in that court about 170 appeals from the return of the commissioners, some of which relate to awards of damages. It is therefore impossible to now know what the result will be when the appeals are all determined. It will have to be determined what benefits each one should be assessed with, regardless of what others are, and what the damages and expenses amount to. The question to be determined in the particular property. The amount of dama benefit case is what benefits have accrued to ages may also be changed at the trial of all or some of the damage appeals. The prayer of the petitioner referred to above was therefore properly refused, and the two prayers offered by the city were properly granted. But nevertheless, if after all the cases are determined, and it is then known what the aggregate of damages and expenses is, and what the aggregate of all the assessments of benefits is, the latter exceeds the former, then the proper proportion of the excess should be deducted from the benefits Inasmuch as charged each one. the city has in our judgment no power to assess benefits which materially amount to more than the aggregate of damages and expenses, it is the duty of the commissioners to deduct the excess, if they find such, by allowing each assessment its proportion of the amount deducted. The return should, of course, show that such deductions were made. We think section 177 would authorize that, as they 'shall make all such corrections and alterations in the valuations, assessments and estimates, and all other matters contained in the said statements and explanatory map or maps aforesaid, as in their judgment shall appear to them, or a majority of them, to be just and proper; ** and after closing such review the commissioners shall make all such corrections in their statement and explanatory map or maps as they shall deem proper, and cause such statement as corrected to be recorded in their book of proceedings,' etc. They then deposit the book of proceedings and maps in the office of the city register, and after certain notices provided for, section 179 authorizes appeals by the city or any person or corporation dissatisfied with the assessment of damages or benefits. On appeal the court directs the clerk to issue a subpoena duces tecum to the city register, requiring him to produce and deliver to the court the record of the proceedings of the commissioners in the case, and all maps, plats, documents, and papers After discussing the question whether un-connected with such record, 'and the said city der the city charter the benefits can exceed court shall have full power to hear and fully the damages and expenses, and after stating examine the subject and decide on the said apthe conclusion of this court that the Legislaand may require the said comture had not authorized, and could not au- missioners, their clerk, surveyor, or other agents thorize, the city to assess benefits for such an and servants, or any of them, and all such other improvement in excess of the aggregate dam- persons as the court shall deem necessary, to attend and examine them on oath or affirmaages and expenses, he said further: tion, and may permit or require all such ex"It only remains to pass on the rulings of planations, amendments and additions to be the court, and then determine how relief can be made to and of the said record of the proceedobtained, if in point of fact the benefits willings as the said court shall deem requisite.' "The city's position is that, it being admitted the appellant's property was benefited to the amount of the assessment, it makes no difference to the appellant whether the aggregate benefits assessed exceed or fall short of the cost of the improvement, because the appellant cannot be injured so long as its assessment does not exceed the actual benefit received by it. It also denies that the aggregate of the benefits assessed in this case exceeds the real cost of the improvement, and contends that no means are provided by law for doing what the petitioner asked the court below to do." peal * (107 A.) "As it is impossible to tell in such a case assessing benefits upon said lot to the amount this whether the benefits will exceed the dam- of $94; that the trust company, on May 18, ages and expenses, and if so to what extent, 1915, took an appeal to the Court of Appeals until all the cases are finally settled, we can find from the "ruling, inquisition, and judgment no better way of disposing of the question. in the case"; that on June 22, 1914, the court Section 179 certainly confers upon the court large powers, and the object is to do justice to below passed an order refusing the petition all. In addition to what we have already quot- of the trust company of May 15, 1914, to ed, that section has the following important scale down the benefit assessments, and that provision in it: 'And the said court shall not re- such ruling was made the subject of one of ject or set aside the record of the proceedings the petitioner's bills of exception; that the of the said commissioners for any defect or lower court having taken final action upon omission in either form or substance, but shall the petition and an appeal having been amend or supply all such defects and omissions, taken from its rulings, the jurisdiction of the and increase or reduce the amount of damages lower court in the case was at an end unless and benefits assessed, and alter, modify and corthe case was remanded by the Court of Aprect the said return of proceedings in all or any of its parts, as the said court shall deem peals; that the Court of Appeals did not rejust and proper.' As, then, in a case where the mand the case, and that the action of the benefits materially exceed the damages and ex- Court of Appeals was the end of the case, penses, the commissioners should make the re- and the court below had no jurisdiction to duction, upon their failure to do so the court entertain the petition of the trust company. can do so on appeals to it." 125 Md. 40, 93 (2) Because under the decision of the Court Atl. 454. of Appeals it is the duty of the commissioners for opening streets, after all the After the decision in 125 Md. 40, 93 Atl. appeals have been disposed of, "if they find 454, the Maryland Trust Company, on the that the aggregate benefits exceed the cost 6th of February, 1919, filed in the case a of its improvement, to amend their return petition alleging that it was advised that and scale down proportionately the benefits all appeals from the determination of the so that the total of benefits shall not exceed commissioners for opening streets in connec- the total of cost of the improvement," but tion with the opening of the Fallsway had that the commissioners could not act in the been finally disposed of, and that the aggre- performance of that duty until all the apgate amount of benefit assessments, as shown peals were disposed of. (3) That, as apby the condemnation book, was much in ex- pears from the records of the Baltimore city cess of the aggregate amount of the damages court, all of the appeals were not disposed awarded and expenses incurred as shown by of until February 5, 1919, and that therefore said book, and praying the court to pass the commissioners had not had an opportunian order requiring “proportionate amounts" ty to perform the duty indicated by the to be deducted from all benefit assessments Court of Appeals. (4) That the Court of Apso as to eliminate the excess of said benefit peals in its decision distinctly left open the assessments over the total amount of dam- question as to what elements of cost and ages and expenses. The city filed a motion expense of the improvement should enter into to dismiss the petition for the following the total damages and expenses, and that it reasons: (1) Because this case originated will be the duty of the commissioners in the in an appeal filed January 27, 1913, from an first instance to pass upon that question. assessment of benefits of $94, and in said (5) That the commissioners are ready and petition it was alleged that the commissioners willing to amend their return in the light of for opening streets had no right to assess the decision of the Court of Appeals, and in benefits upon the lot of the petitioner for accordance with the principles therein laid the reasons therein stated; that the princi- down. (6) That the Baltimore city court had pal reasons specified were decided adversely no original jurisdiction to either increase to the contentions of the petitioner by the or diminish any assessment of benefits, and Court of Appeals in other cases, and that no original jurisdiction to scale down the subsequently, on May 15, 1915, the petitioner benefits as directed by the Court of Appeals filed in said case another petition alleging in the event the benefits exceed the cost of that the damages and expenses set out in the improvements, and that only upon the the return of the commissioners included cer- failure of the commissioners to make such tain items improperly, and that with said amendment, and upon an appeal from such items stricken out the total damages and failure or refusal, would the Baltimore city expenses would appear to be only $135,835.- court have jurisdiction to order or make 14, and that the aggregate amount of benefits such amendment, and that therefore the was $393,358.75, and praying the court to court had no jurisdiction to entertain the decrease proportionately the benefit assess-petition of February 6, 1919. ments so as not to exceed the total damages The court below overruled the motion of and expenses; that the matter arising on the city, and thereupon the city filed an ansaid petition was tried before his honor, swer to the petition, in which, in addition to Judge Duffy, who found an inquisition as- the defenses relied on in its motion, it al107 A.-37 |