powers it did confer upon the committee on, ting in session to carry out all the details of public property. The Legislature in granting a contract, which applies with equal force to the charter invested the committee with pow- the action of a city council in a similar case, er to let "what may be legally let." The or- the court further add: "The position taken dinance authorized the committee to lease by the appellant involves the absurd conse any part of the building not already under quence that this board of supervisors, comlease or appropriated to the use of the city posed of 19 numbers, should have been kept for any period not exceeding three years. It in constant session during the progress of has already been determined that the lease this protracted investigation, in order that embraced only what might be "legally let." they might, from day to day, as required, So far the authority of the ordinance com- make bargains, as a body, for each item of ports with that of the charter. The sub- service and expense incurred. It was unnecstance of the act conferred by the charter essary. They might act by a committee apwas the right to lease. The appointment of pointed, as in the present mode." a committee by an ordinance was a proper and convenient way to carry out the details of the right conferred. Without any ordinance at all, the city council could have let the hall. The charter so provided. The ordinance, therefore, was made, as all ordinances are, for the purpose of prescribing a permanent method of transacting the particular business involved. Therefore the language of the ordinance that the committee may lease "upon such terms and conditions as they may deem expedient" involves simply those ministerial acts necessary to perform the act of leasing. In the light of the context which determines that a lease may be made, what shall be let, and the term of the lease, this clause seems to have been used for the purpose of authorizing the committee to negotiate the various details which might arise in connection with the transaction involved. Those things which it would be impossible for an ordinance to prescribe in detail were left to the action of the committee. An illustration of this point is found in the present case, where the specifications, submitted by the lessee, prescribing various things which he stipulated to do, embrace 3 full pages and from 20 to 30 different items.

* *

The right of the city council to delegate its authority to a committee to perform acts which the council itself might legally do was raised in Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659, in which the court hold: "If the city council had lawful authority to contract the sidewalks, involved in it was the right to direct the mayor and the chairman on streets and alleys to make a contract on behalf of the city for doing the work. We spend no time in vindicating this proposition. It is true the city council could not delegate all the power conferred upon it by the Legislature, but, like every other corporation, it could do its ministerial work by agents. Nothing more was done in this case."

This case also clearly determines that, when a city council is authorized to make a contract, it can appoint a committee to negotiate the details. To the same effect is Han. & St. Jo. R. R. Co. v. Marion County, 36 Mo. 296, in which it was contended by the defendant that the county court was the only agent authorized by law to issue instruments in payment to subscribers for stock, and that the instruments were not issued by the court, but by certain justices appointed by the court, and that their act was not binding on the defendant; that is, that the county court could not delegate its authority to the persons named. But the appellate court held otherwise, saying: "When the Legislature em

to the railroad company, it also clothed it with the means which might be convenient for making its action effectual. The substantive act was the taking of the stock."

This interpretation seems to be fully borne out in Gillett v. Logan County et al., 67 Ill. 256. In this case the board of supervisors of the county authorized three of their own number, who had been appointed for the pur-powered the county court to subscribe stock pose of employing counsel to defend the interest of the county, "to use their discretion in employing such further agents or assistants as might, to them, seem expedient, for the purpose of defending the interest of the To the same effect, also, is Collins v. Holcounty; * the committee being em- yoke, 146 Mass. 298, 15 N. E. 908, where the powered to contract with such agents or as-court say: "It is true, as contended by the sistants." The court say: "The first ground petitioner, that the mayor and aldermen could relied on in support of the bill is that the not delegate the authority given them by the foregoing resolution was illegal. The board Public Statutes of 1882 (chapter 50, § 1) to of supervisors had no right to delegate to a lay and make common sewers; but no suggescommittee such power as was given by the tion is made that the sewer was not legally resolution." And in answer to this conten- laid, and it is only objected that it was 'built tion hold: "That the duties of a committee, under the direction and supervision of a comalthough they might include the making of mittee composed of four members of the comcontracts, were merely ministerial, whica mon council and three aldermen.' But this they might properly be appointed to perform was done by the order of the mayor and as recognized in City of Alton v. Mulledy, 21 aldermen. The statute which gave them auIll. 76, and McClaughry v. Hancock County, thority to make the sewers did not preclude 46 Ill. 356. In speaking of the impracticabil- them from employing agents to supervise and

opinion that the substance of the thing which | fect months or even years hence. They might could not be delegated was the laying out of the sewer, and not the details involved in Its construction, some of which must necessarily have embraced the negotiating of contracts.

opinion then filed that we had not overlooked, as was supposed, the testimony relied upon in that motion, and that our view of its force and effect remained unchanged, and the motion for reargument was accordingly overruled.

and in Pegg v. Warford, 4 Md. 394, also cited in the opinion, Judge Le Grand said that, when the finding of the jury upon the issues are certified to the orphans' court, "it has no discretion in regard to it, and is imperative ly required to enter up judgment in conformity thereto." Under this decision, it Subsequently, on May 19, 1908, the appelwas the duty of the orphans' court with lees filed a petition for a modification of the reasonable promptness to enter up the prop-judgment, by reversing and remanding the er judgment or order, and the omission of that court to perform this duty until more than a year later ought not to be allowed to prejudice any rights, and we are of opinion, for the purposes of this aspect of the case, that the order of February 7, 1905, ratifying the finding of the jury and dismissing the caveat, may be regarded as equivalent to the admission of the will to probate. The object of all rules of law is to do sub-petition is accompanied by the affidavit of Edstantial justice to all persons, parties to, or interested in, the litigated matters, and courts ought not to be required to give undue effect to technical rules, where justice would be thereby defeated.

For these reasons, the motion will be overruled.

Motion overruled.

(107 Md. 642)

BALTIMORE & O. R. CO. v. STATE, to Use
of BLACK et al.

(Court of Appeals of Maryland. April 1, 1908.)
APPEAL AND ERROR (§ 891*)-REVERSAL-OR-
DERING NEW TRIAL-MATTERS NOT APPAR-
ENT OF REcord.

Under Code 1860, art. 5, 16, providing that, where judgment shall be reversed by the Court of Appeals, and it shall appear that a new trial ought to be had, a writ of procedendo shall issue, the propriety of ordering a new trial must appear from the record before the court at the time of such reversal, and cannot be shown by a petition and affidavits.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3625; Dec. Dig. § 891.*] Action by the State, to the use of Laura C. Black and others, against the Baltimore & Ohio Railroad Company. From a judgment for plaintiffs, defendant appealed, and the judgment was reversed (69 Atl. 439) without awarding a new trial. Plaintiff petitions for a modification of the judgment by awarding a new trial. Petition refused. Francis Neal Parke and James A. C. Bond, for appellant. Charles D. Wagaman and Hammond Urner, for appellees.

case for a new trial. This petition is founded solely upon alleged newly discovered evidence, by means of which the appellees claim they "will be able to supplement the evidence shown by the record by additional proof showing that the collision from which the death of Henry S. Black resulted was caused by the contact of the engine of the appellant with the wagon of the decedent." This

win W. Lewis, who deposes that he witnessed the accident, and that the engine of the appellant collided with the wagon of the deceased. This petition is also accompanied by the affidavits of Messrs. Urner and Stoner, counsel for the appellees, that the facts deposed to by said Lewis were unknown to them, or to the appellees, before May 16, 1908, and could not have been discovered by them, or any of them, by the exercise of any diligence on their part, and we unhesitatingly accept this as strictly true. There is also filed with said petition an affidavit of Charles Fisher, head machinist Ox Fibre Brush Company of Frederick City, to the effect that said Lewis is a reputable and credible person. Assuming this to be so, it is to be observed that Lewis, in his affidavit, does not state that he did not know of the pending suit and trial resulting from this accident, and that he gives no excuse or reason for his failure to communicate to Mrs. Black, or to her counsel, his alleged knowledge of the circumstances of this accident, though the suit was brought, and the trial had, in the city of Frederick, where he resided. It is also to be noted that, though Lewis, according to his affidavit, must have been in a position to know whether the whistle was sounded for the crossing, and whether the headlight of

was

the engine was burning, and the bell was ringing, as the engine reached the crossing, he is silent upon this vital question, vital because if the whistle was sounded, and the headlight was burning, and the bell ringing, as the engineer and fireman testified, PEARCE, J. After the opinion reversing there was absolutely no evidence of neglithe judgment in this case had been filed with-gence on the part of the defendant. Mr. out awarding a new trial, a motion for reargument was filed by the appellees. This motion was urged upon the ground, as assumed by the appellees, that the court had inadvertently overlooked testimony which it was earnestly contended was sufficient to take the case to the jury, and that the judgment. therefore, should have been affirmed. We carefully reviewed the whole case in considering that motion, and pointed out in the

Stoner, in his affidavit, says that he heard Lewis state to Mr. Urner “that if he (Lewis) had known that said Urner was connected with the case, he would not have told him of his knowledge with reference to said accident." His failure to communicate his knowledge to Mrs. Black, or to her counsel, before the trial, and his subsequent statement to Mr. Urner that he would have continued to conceal it if he had known of his connection

with the case, does not present him to the court in a favorable light. It is true he was under no legal obligation to volunteer his evidence, but his concealment of his alleged knowledge, in a case of that character, evinces a regrettable indifference to a clear moral obligation.

fining its attention to the record." The court added: "Our functions are confined to a review of the questions of law decided by the court below. * We must pause and consider carefully the grounds of this motion before we give our assent to it. We may well inquire into the rights of the defendant in If this affidavit had been seasonably pre- this behalf, and we well ask whether the sented to the trial court, that court would just limit of litigation has not been reached. have dealt with the question of a new trial * We can make due allowance for the in the exercise of its conceded discretion. earnestness of counsel in behalf of their cliBut that is not the situation here. The ques-ents, and for the depths of their convictions tion squarely presented is whether newly dis- produced by the warmth of their zeal. But it covered evidence can be availed of, as ground is our part to decide questions before us for a new trial, under any circumstances ir without any of the excitement which naturalthis court as a court of appellate jurisdiction ly belongs to the efficient discharge of the only, and upon this question there can be duties of the advocate. * # * No prinno doubt as to the law in this state. In Mc- ciple or rule of practice will authorize anothCann v. Sloan, 26 Md. 81, the point came up er trial of these issues. If we should decide directly. Section 16, art. 5, of the Code of otherwise, we should destroy confidence in 1860 provided that, “In all cases where judg- the conclusiveness of judgments, and greatly ments shall be reversed or affirmed by the multiply the evils of litigation, by introducing Court of Appeals, and it shall appear to the into the administration of justice uncertaincourt that a new trial ought to be had, a ties and embarrassments which never existed writ of procedendo shall issue," and that writ before." was applied for on the ground of newly dis- In a "supplemental petition" handed in covered evidence. The court said: "It is without filing, on May 30, 1908, but which obvious from the language of this section, as will be ordered filed, the appellees state that well as the final character of decisions in "the preceding petition was not intended to this court, that the propriety of a new tria. | be predicated upon the theory that a new trial must appear from the record before the court ought to be awarded merely because of newat the time of reversal or affirmance of the ly discovered evidence, but upon the theory case under consideration. Any other con- that the record before the court at the time struction would convert this court into a tri- of the judgment was not devoid of evidence bunal of original, instead of appellate, juris- tending to support the plaintiff's theory, and diction. When this case was under consid- that they feel justified, therefore, in urging eration, the question of procedendo was pre- the justice of awarding a new trial in this sented to the minds of the court, and the case because of the testimony already in, and conclusion reached that there was no ground not because of newly discovered evidence." for the writ. The appellants now seek to This, however, is plainly an effort to eke out change the decision of the court by presenting the record by something dehors the record, an affidavit of a witness to supply a defect and is in palpable conflict with the reasoning of evidence in the record, on the ground that and conclusions of the two cases cited. This it is new evidence discovered since the trial application must either be regarded as a mere of the case. This is virtually a motion for motion for a new trial upon the ground of a new trial, for reasons not appearing in the newly discovered evidence, and for that rearecord. * * If the court had the pow- son not allowable, or it must be regarded as er, it would be a precedent of dangerous ten- a renewal of the motion for reargument, basdency to award a procedendo under such cir-ed upon the record as presented to the court cumstances. Without regard to these the when its judgment was rendered. In that motion is overruled, because the record does light it has already received our best considnot show that a new trial ought to be grant-eration, and we can perceive no reason why we should now change our views.

ed."

In Archer v. State, 74 Md. 410, 22 Atl. 6, 737, there was a motion, after affirmance of the judgment on appeal, to remand the cause for a new trial, the motion being founded on section 20, art. 5, of the Code of 1888, which was in the same language as section 16, art. 5, of the Code of 1860, except that it substituted the words "such new trial shall be

awarded" for the words "a writ of proce dendo shall issue." In that case the court overruled the motion, and quoted from McCann v. Sloan, supra, as showing "how firmly this court has adhered to the rule of con

the entry will not be reversed in the absence | that findings of fact in such cases will not of manifest error.