Baltimore Belt Railroad v. Baltzell

Robinson, J., delivered the opinion of the Court. This is a hill to restrain the appellant, a railroad company, from proceeding to condemn certain real estate held hy the appellees as trustees. The company’s powers of condemnation are derived from section 167, Article 23 of the Code, which provides in the first place, that the company may agree with the owner for the purchase of any property which may he needed for the construction of its road, and if the owner he an infant, non compos, or a married woman, or a non-resident, application may he made by the company to a justice of the peace, who shall thereupon issue his warrant to the sheriff of the county, requiring him to summon a jury of twenty, qualified to act as jurors under the laws of the State, to meet on the premises on a day named in said warrant, and from the panel thus selected, the company and the owner, may each strike off'four persons, and the remaining twelveshall actas “the jury of the inquest of damages.” It further provides that the jury shall reduce their inquisition to writing, and sign and seal the same, and that it shall then he returned hy the sheriff to the clerk of the Circuit Court, and shall he confirmed hy the Court at its next session, unless cause to the contrary he shown. This statute, it is contended, is in violation of the constitutional rights of the land-owner, as guaranteed ⁹⁹ hy the Constitution of this State, which declares that no one ought “to he deprived of life, liberty, or property hut hy the judgment of his peers or hy the law of the land;” and as guaranteed also by the Constitution of the United States, which declares that no State shall pass any law “to deprive any person of life, liberty, or property, without due process of law.” Fourteenth Amendment, Constitution of the United States. “ The law of the land” and “due process of law”.as here used, it can hardly he necessary to say, mean the same thing.

It is in violation of these constitutional limitations, it is argued, because no provision is made by the statute for notice to the owner; and that the taking of one’s property for a public use, without notice and an opportunity to he heard, cannot be considered “due process of law” within the meaning of the Constitution. Now, what constitutes “due process of law,” has been the subject of a good deal of consideration, not only hy the Courts of this and other States, but by the Supreme Court of the United States also, especially since the adoption of the Fourteenth Amendment, and after all that has been said find written, it may not be easy to define it, so as to embrace every case. Generally speaking, however, due process of law may be said to mean a course or mode of proceeding according “to the well settled maxims of law, and under such safe-guards for the protection of individual rights as such maxims prescribe for the class of cases to which the one in question belongs.” All agree that it does not “necessarily imply a regular proceeding in a Court of justice, or after the manner of such Courts.” Davidson vs. New Orleans, 96 U. S., 97 . On the contrary, in the leading case of Murray’s Lessee vs. Hoboken Land & Improvement Compy., 18 Howard, 272 , where the property of a defaulting public officer was sold under a distress warrant issued by the Secretary of the Treasury in pursuance of an Act of Congress, the ¹⁰⁰ proceeding was held to he due process of law, because it was in conformity with the usual and customary proceedings in such cases, recognized alike by the commpii law and the statute law of England.

After stating that the phrase was equivalent “to the law of the land,” and that its meaning was to he ascertained frqm the practice of the English Courts, and from the English statutes subsequent to the time of Magna Gharta, Mr. Justice Curtis says, “Though due process of law generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceeding, yet this is not universally'true. There may he and we have seen that there are cases under the law of England after Magna Gharta, and as it was brought to this country, and acted on here, in which process in its nature final, issues against the-body, lands, and goods of certain public debtors without any such trial. ’ ’ But there is a wide difference between the summary process sanctioned by the common law for the collection of -the public revenue, and the taking of one’s property under the power of eminent domain for a public use. And-we think it may he safely said that there never has been a time in the constitutional history of England, much less in this country, when one could be lawfully deprived of his property for public use without notice and an opportunity to he heard. There was, it -is true, an ex parte proceeding under the ancient writ of “ad quod damnum, ” issued by the Court of Chancery in pursuance of an Act of Parliament passed in 1299, by which the sheriff was directed to summon a jury to inquire whether a grant to a religious use would he to the damage of the king and others.

And this writ was in the course of time used in the condemnation of private property for public uses. And, although the writ issued upon an ex parte application, yet, if the inquisition was found, ¹⁰¹ and the property condemned without notice to the owner, this in itself constituted a sufficient ground for setting aside the inquisition. As far hack as Vennor’s Case, 8 Atkyns, 766, where an application was made to quash the writ, Lord Hardwicke said: “The only proper question is whether there has been any surprise in the execution of this writ on the persons petitioning, hypreventing them from laying evidence before the jury at the time of the inquisition, or before the justices, on the appeal. ” And this writ, it appears, was also used during the colonial government, especially for the condemnation of mill-seats and other like public uses, but the inquisition as found, was always subject to he set aside for any reason that would have been sufficient to quash the writ at common law. So whatever conflict of opinion there may have been in the case of Mayor, &c., of Baltimore vs. Johns Hopkins Hospital, 56 Md., 1 , and in the case of Ulman vs. Mayor, &c., of Baltimore, et al., 72 Md., 587, 609 , on the part of this Court as to the necessity of notice in the exercise of the taxing power, we all agree that in taking property under the power of eminent domain, the owner is entitled to notice, and the opportunity to be heard.

And the learned Judge below, and Mr. Lewis in his treatise on Eminent Domain, have both fallen into error in construing the case of the George’s Creek Coal and Iron Company vs. New Central Coal Company, 40 Md., 425 , as a decision to the contrary. In that case the land owner not only had notice, but was heard by the jury of inquest, and the inquisition was set aside by the Court for the reasons set forth in the petition filed by the owner. Subsequently, the Court directed a new inquisition, and the owner moved to quash the new writ •bh the ground that it was issued by the Court without hbtice, and upon this motion the Court decided that the Owner was not entitled as matter of right to notice, either Of the original application to the justice of the peace or of ¹⁰² that to the Court for a new inquisition when the first had been set aside. But the question whether the owner was. entitled to notice upon the execution of the writ and the condemnation of the property was not presented hy the record, nor was it considered hy the Court.

And so-in Western Maryland R. R. Co. vs. Patterson, 37 Md., 125 . The property had been condemned and the damages had been awarded, and the inquisition had been returned to-the Superior Court, and a hill was filed in 'equity hy the owner to restrain the Superior Court from confirming the inquisition, not on the ground of want of notice, hut because the inquisition condemned a fee simple interest, and for other reasons. And the Court decided that the-Superior Court had jurisdiction of the subject-matter, with power to confirm or set aside the inquisition, and there was no ground for the interference of a Court of equity. In delivering the opinion of the Court Judge Bowie, however, does say, that no summons or notice to the owner is in most cases provided, but this. side-remark is not to be construed as a decision of this Court that notice was not in such cases required.

This question was not before the Court. Being then of opinion that the owner is entitled to notice, and the opportunity to be heard, the question is whether the statute now under consideration is invalid, because it fails to-provide for such notice. And in considering this question we cannot overlook the historical argument, as it may he termed, which was pressed with so much force by the-counsel of the appellant. They have, with commendable industry, collected a long string of statutes, beginning-with the earliest colonial legislation and coming down to the present time.

And passing hy the earlier acts for the condemnation of mill-seats and other like uses, we find that all the great works of public improvements in this State — the Chesapeake and Ohio Canal Company, the Baltimore and Ohio Railroad Company, .the Balti ¹⁰³ more and Washington Railroad Company, the Baltimore and Susquehannah Railroad Company, the Annapolis and Elk Ridge Railroad Company, in fact, nearly all the railroads and turnpike roads, — have been built under powers of condemnation substantially the same as conferred by Section 167 of Art. 23. The Reports of this State are filled with cases, in which these charters and the condemnations under them have been the subject of judicial consideration, and these cases have been argued by the most eminent and learned counsel in the State, and it does not appear that it ever occurred to the Court or to the counsel that such condemnations were invalid, because the statutes under which they were made did not provide notice to the owner. But not only in this State, hut in the District of Columbia, we find works of internal improvements constructed and property condemned under Acts of Congress substantially the same in terms as the one now before us. And condemnations under these Acts have been a fruitful source of litigation, not only in the Circuit Court, but in the Supreme Court* and, though the Constitution declares that Congress shall pass no Act depriving any person of property, lCwithout