Arnsperger v. Crawford

Pearce, J., delivered the opinion of the Court. The question sought to be raised by this appeal is the constitutionality of the private road law of Maryland. The proceedings were commenced by the filing of an application by the apppellant to the County Commissioners of Frederick ²⁴⁹ County, under the provisions of Art. 25, sec. 100 to 117 of the Code of Public General Laws, for a private road to run from a tract of land belonging to him in said county, and wholly bounded by the lands of other private owners, through the lands of the appellees, to the public road from Waynesboro to Sabillasville. The Commissioners appointed to lay out such road, located the same and assessed the damages to the appellees, and the County Commissioners, after consideration of objections urged by the appellees to the inquisition, ratified and confirmed the inquisition and award and by their order granted said private road to the appellant From that order an appeal was taken by the present appellees to the Circuit Court for Frederick County, under sec. 117 of Art. 25, which gives such appeal and provides that the judgment in the case shall be final between the parties.

Upon the trial of that appeal, the Circuit Court, upon the motion of the appellants therein, quashed the proceedings in the case, upon the ground that secs. 100 to 117 of Art. 25 are in conflict with the Constitution of Maryland, and void, and that the County Commissioners therefore had no jurisdiction to grant a private road, and the present appeal is taken from that order. It is now moved to dismiss this appeal, and this motion must prevail. It is well settled in this State, that where the Circuit Court sits as an appellate Court under statutory authority, no appeal will lie to this Court from the judgment of the Circuit Court, unless expressly given by statute. In Rayner v. State, 52 Md. 368 , it was insisted that the statute under which Rayner was convicted of violating' a law restricting the right of fishery in the Potomac river, was unconstutional and void, and that there was therefore no jurisdiction, either of the Justice before whom the charge was first heard, or of the Circuit Court on appeal, to try and decide it.

The Court there said that whatever might be thought of the constitutional objections to the statute, it did not follow that the right of appeal was not validly given, or that the Circuit Court was not in the exercise of valid jurisdiction in hearing and deciding the case, and pointed out that “if, instead of the appeal ²⁵⁰ under the statute, the party had applied for the writ of certiorari, upon the specific ground of the uriconstitutionality of the statute, and the consequent want of power and jurisdiction of the magistrate to proceed under it, the Circuit Court would then have been in the exercise, not of the special limited jurisdiction, but of its ordinary common law jurisdiction; and from its judgment in the premises, a writ of error, or an appeal, could have been prosecuted to this Court.” In Judefind v. State, 78 Md. 510 , a member of the sect of Adventists, whose creed requires them to observe the seventh day of the week as a day of rest was convicted before a Justice of the Peace for a violation of the law prohibiting work on Sunday, and upon appeal to the Circuit Court the conviction was sustained, whereupon he brought a writ of error to this Court to test the constitutionality of the Sunday law, and the writ of error was quashed for the reason given in Rayner v. State, supra. In Moores v. Bel Air Water Co., 79 Md. 391 , certain water rights of the appellant were condemned under the provisions of secs. 248 to 253 of Art. 23 of the Code, and the inquisition and award being ratified by the Circuit Court for Harford County, the case was brought to this Court by appeal and also on writ of error, to determine the constitutionality of the statute authorizing the condemnation. The Maryland cases were very carefully reviewed, and the Court being of the opinion that the Water Company had the right of eminent domain, and that the Circuit Court had jurisdiction over the condemnation proceedings, its order could not be reviewed, and the appeal was dismissed and the writ of error quashed. To the same effect are the cases of Hopkins v. P., W. & B. R. R., 94 Md. 257 , and N. Y. Mining Co. v. Midland Mining Co., 99 Md. 506 , in both of which it was sought to review the action of the Circuit Court upon condemnation proceedings, providing for no appeal from such action, because of alleged constitutional objections to the statutes authorizing the condemnation.

In the last-mentióned case, the Court said, “The inquiry ²⁵¹ here is, not whether the Court rightly decided, but whether it had the right to decide what it did decide.” In view of these repeated decisions, it is clear that this appeal must be dismissed. If we were authorized to review the action of the Circuit Court in this case, we would affirm its order, and we deem it proper to state the reasons for our view, in order that there may be no diversity or confusion of ruling upon this question in the different judicial circuits of the State. Section 40 of Art. 3 of the Constitution of Maryland provides “The General Assembly shall enact no law authorizing private property to be taken for public use, without just compensation, as agreed upon between parties, or awarded by a jury, being first paid or tendered, to the party entitled to such compensation;” and Art. 23 of the Declaration of Rights, declares, that “no man ought to be taken, or imprisoned, ox dis-seized of his freehold liberties or privileges, or outlawed, or exiled or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.” There is no prohibition in express terms against taking private property for private use, to be found either in our Constitution or Declaration of Rights, nor can it be justly held that any is needed, although such a prohibition is contained in the Constitutions of Alabama, Colorado, Georgia, Louisiana, and Missouri. The implied prohibition contained in sec. 40 of Art. 3, is too clear to be questioned.

As was said in Bloodgood v. Mohawk R. R., 18 Wendell, 59 , in construing similar language, “these words must be construed as equivalent to a constitutional declaration that private property, without the consent of the owner shall be taken only for the public use, and then, only upon just compensation.” In Taylor v. Porter, 4 Hill, 147 , Judge Bronson, speaking for the Supreme Court of New York, preferred to rest the prohibition upon that section of the Constitution of New York, which forbid that “any freeman should be disseized of his freehold, but by lawful judgment of his peers, or by the law of the land, and that no person should be deprived of life, liberty or ²⁵² property, without due process of law,”and said that the words, "law of the land,” and "due process of law,” could not, and did not mean, “a statute passed for the purpose of working the wrong.” But whatever may be thought of the true ground upon which the conclusion should be placed, Judge Cooley says in his Const. Lint., 6 ed., 651, "It is conceded on all hands that the Legislature has no power in any case, to take the property of one individual and pass it over to another, without reference to some use to which it is to b.e applied for the public benefit.” And Judge Alvey in New Central Coal Co. v. Georges Creek Coal Co., 37 Md. 559 , said, "This Constitutional prohibition is but declaratory of the previously existing universal law which forbids the arbitrary and compulsory appropriation of any man’s property to the mere private use of another, even though compensation be tendered.” It has never been anywhere held that this can be done, so that our only inquiry here is whether this particular use is a “public use” within the meaning of the Constitution. When this is determined, the question before us is solved, and all the authorities hold that whether a use is public or private, is a question not for the Legislature, but for the judiciary. Lewis on Eminent Domain, sec. 158.

New Central Coal Co. v. Georges Creek Coal Co., 37 Md. 560 . The Legislature cannot make a particular use, either public or private, merely by so declaring it. If it could do so, “the constitutional restraint would be utterly nugatory,” as was said in-the case last cited. The Constitution does not define the term, “public use',” but leaves us to resort to the natural meaning of the words, and we think this meaning is clearly and correctly expressed by Mr. Lewis in sec. 165, in which he says, "public use means the same as use by the public” givingas his reasons for this conclusion the following: “First, that it accords with the primary and more commonly understood meaning of the words; second, it accords with the general practice in regard to taking private property for public use, in vogue when the ²⁵³ phrase was employed in the earlier constitutions; and third, it is the only view which gives these words any force as a limitation, or renders them capable of any definite and practical application.” There will be found two different views of the meaning of these words which have been taken by the Courts; one, there must be a use, or right of use by the public, or some limited portion of the public; the other that they are equivalent to public utility or advantage.

If the former is the correct view, the Legislature and the Courts have a definite, fixed guide for their action; if the latter is to prevail, the enactment of laws upon this subject will reflect the passing popular feeling, and their construction, will reflect the various temperaments of the Judges, who are thus left free to indulge their own views of public utility or advantage. We cannot hesitate to range this Court with those which hold the former to be the true view. We agree with the Pennsy vania Court (Farmers Market Co. v. Phil. R. R. Co., 10 Pa.

Co. Ct. 25 ) that'“the test whether a use is public or not, is whether a public trust is imposed upon the property, whether the public has a legal right to the use, which cannot be gainsaid, or denied, or withdrawn at the pleasure of the owner.” And we hold with the New York Court (Matter of Niagara Falls, 108 N. Y. 375 ), that “the expressions, public interest, and public use, are not synonymous; that the establishment of mills and manufacturies, the building of churches and hotels and other similar enterprises, are more or less matters of public concern, and promote, in a general sense, the public welfare. But they lie without the domain of public uses for which private ownership may be displaced by compulsory proceedings.” It was contended in argument, that in Maryland the latter of the two views above mentioned has been adopted, and in support of this contention, counsel cited the Bellona Company's case, 3 Bland, 457 , and Van Witsen v. Gutman, 79 Md. 411 . But we cannot agree with this contention. The former case was a bill for an injunction by the Bellona Company to restrain the Baltimore and Susquehanna R. R. Co. from condemning a right of way through the plaintiff’s lands, and ²⁵⁴ upon hearing the preliminary injunction granted was dissolved.

In that case, decided in 1831, there are, it is true, some expressions, which unexplained might give apparent color to the contention of the appellant in this case, but it must