Dunne v. State

Digges, J., delivered the opinion of the Court.' This case comes before us on appeal by Anna Bartsch Dunne from an order of the Circuit Court fotr Montgomery County sustaining a demurrer interposed by the State of Maryland to a paper writing filed by the appellant in that coxtrt. While the paper writing in question is somewhat lengthy, a proper consideration as to its character and purport requires that its pertinent provisions be fully stated. They are: “No. 18 Appearances. Nov. Term, 1931.

Anne Bartsch Dunne v. The State of Maryland. State of Maryland, Montgomery County, to- wit: Anna Bartsch Dunne, by her attorneys, E. Barrett Prettyman and Preston C. King, Jr., and proceeding under the provisions of section 40 of article 91 of the Code of Maryland, sues the State of Maryland, for that, on, to wit, June 21, 1928, and for some time prior thereto-, said Anne Bartsch Dunne was the owner, in fee simple, of the following described land, lying in Montgomery County Maryland.” (Then follows a detailed description of the property.) “And that the State of Maryland, through its agent, the State Hoads Commission, exercising its power of eminent domain, on, to wit, June 21, 1928, took possession of and appropriated for public use the aforesaid land belonging to said Anna Bartsch Dunne for the purpose of widening certain existing roads, to- wit, Brookeville and Colesville Pikes, and thereafter the State of Maryland, acting through its said agent, the State Hoads Commission, laid out and opened upon the said land a public road, and that in so doing said State of Maryland completely changed the character and contour o-f said land by grading, excavating and covering it with concrete so that it cannot be restored to its original character and contour, and that for the purpose of widening the existing roads, and laying and opening upon the said land a public road as aforesaid, the State of Mary ²⁷⁷ land, through its agent, the State Roads Commission, cut down, removed and destroyed certain fences, hedges, trees and shrubbery then being upon said land and belonging to said Anna Bartsch Dunne; that the amount of damages suffered by said Anna Bartsch Dunne by reason of the aforesaid taking and appropriation, being just compensation for the property thus taken and appropriated, was the sum otf Eifty-three Thousand Five Hundred Seventy-six Dollars and Eifty-four Cents ($53,576.54); that in violation of the Constitution of Maryland and the Fourteenth Amendment of the Constitution of the United States of America, no condemnatioin proceedings or any other proceedings of any sort were had respecting the taking and appropriation of the aforesaid land and/or property; that said Anna Bartsch Dunne was not afforded any opportunity whatsoever to be heard in respect to the aforesaid taking and appropriation of the aforesaid land and/or property; that said Anna Bartsch Dunne did not consent or agree, in any manner whatsoever, directly or indirectly, to the aforesaid taking and appropriation of the aforesaid land and/or property without compensation therefor; that said Anna Bartsch Dunne has not been paid or1 tendered any compensation whatsoever in any manner by the State of Maryland or any of its agents or by any other person or persons for the taking and appropriation of the aforesaid land and/or property; that the aforesaid agent of the State of Maryland, the State Roads Commission, did not cause to be prepared any report, either preliminary or final, or any plat or plats, showing either the description, quantity and/or nature of the property taken, the amount of damages awarded therefor, the amount of benefits assessed to the adjoining land, the names of the persons interested in the property taken or benefited with their respective estates and interests therein, and/or the damages and benefits awarded or assessed to- each; that said State Roads Commission did not by advertisement inserted in any newspapers published in the County where the land lies, give notice to the parties interested that such reports were open to inspection at the office of the Commission or that such ²⁷⁸ reports had been deposited with the clerk of the circuit court of the county in which the property taken lies; that the State of Maryland has consented to be sued in this court in these proceedings in respect to the subject-matter herein involved, such consent appearing in section 40 of article 91 of the Code of Maryland; that said Anna Bartsch Dunne has no remedy in the premises other than in this proceeding. Wherefore, the premises considered, Anna Bartsch Dunne prays that process issue from this Honorable Court directing the State of Maryland to appear herein on or before the next appearance day, and that the Court shall require the State of Maryland to pay the costs of this proceeding in this court; and Anna Bartsch Dunne further prays that the eoturt shall issue its order requiring the said State Roads Commission, agent of the State of Maryland, to pay into this court the sum of Fifty-three Thousand Five Hundred Seventy-six Dollars and Fifty-four Cents ($53,576.54), being the amount due to said Anna Bartsch Dunne, and that thereupon the Court shall order such sum to be paid frotar the court to the said Anna Bartsch Dunne; and Anna Bartsch Dunne further prays that if the said State of Maryland shall upon issuance of the process of this court fail to appear as summoned, the court shall issue its judgment and execution thereon against the said State of Maryland for the sum of fifty-three thousand five hundred seventy-six dollars and fifty-fotar cents ($53,576.54); and Anna Bartsch Dunne further prays for such other and proper relief as may be necessary or desirable in the premises.” The demurrer admits, for the purpose of this appeal, the statement of facts above alleged, but not any conclusions of law therein contained. It will be seen that the appellant alleges that the proceeding is instituted under the provisions of section 40 of article 91 of the Maryland Code; that she sues the State of Maryland; that she was, on June 21st, 1928, and had been for some time prior thereto, the fee simple owner of the land described; that the State of Maryland, through its agent, the State Roads Commission, exercising its power of eminent domain, on June 21st, 1928, ²⁷⁹ took possession of and appropriated for public use the said land of the appellant for the purpose of widening certain existing roads; that the State, acting through said agent, laid out and opened upon said land a public road, and by so doing changed the character and contour of the land by grading, excavating, and covering it with concrete, so. that it cannot be restored to its original character and contour, and further cut down, removed, and destroyed certain fences, hedges, trees, and shrubbery then being upon said land belonging to the appellant; that the amount of damages suffered by the appellant by the taking and appropriation, being just compensation for the property taken, was the sum of $53,-576.54; that, in violation of the Maryland Constitution and the Fourteenth Amendment of the Constitution of the United States, no condemnation proceedings or any other proceedings of any sort were had respecting the taking and appropriation of said property; that the appellant was. not afforded any opportunity to be heard in respect to the appropriation of said property, and that she did not consent or agree in any manner whatsoever, directly or indirectly, to the taking and appropriation without compensation therefor; that she has not been paid or tendered any compensation by the State or its agents, for the taking of said property.

It is. further alleged that the State Roads Commission, as agent of the State, did not do any of the acts prescribed by section 40 of article 91; that the State has. consented to be sued in these proceedings in respect to the subject-matter therein involved, such consent appearing in said section 40 of article 91 of the Code; and that the appellant has no. remedy other than in this proceeding. The writing then goes on to pray that certain things be done-, substantially in the form of the prayers of a bill in equity, which are: (1) That the court issue process directing the State of Maryland to appear in the proceedings, before the next appearance day, and that the court require the State to pay the costs of the proceeding in that court; (2) that the court issue its order requiring the State Roads. Commission, agent of the State of Maryland, to pay info the court the sum of $53,576.54, being the amount ²⁸⁰ due to the appellant, and thereupon the court shall order such sum to be paid from the court to the appellant; (3) that if the State shall, upon the issuance of the process of this court, fail to appear as summoned, the court shall issue its judgment and execution thereon against the State for the sum of $53,576.51; and (!) such other and proper relief as may be necessary or desirable in the premises. This is certainly a novel proceeding in this 'State, and we have been referred to none elsewhere in any way analogous.

Nevertheless, if the proceeding is a legal one, its novelty can constitute no ground for its rejection. The proceeding institutes a suit against the State of Maryland, and it needs no citation of authority to hold that this cannot be done unless consent has been given by the sovereignty. This is admitted by the appellant; but her contention is that the necessary consent has been given by the State in the enactment of section 101 of article 91 of the Code. The text of that section is: “Whenever, for the purpose of building a new road or widening any existing road or crossing .the tracks of any railroad, it shall become necessary to condemn any land or water or any interest in, imder or over the same which the State Roads Commission is authorized to- acquire under the preceding sections of this article; it shall and may be lawful for said commission to proceed as follows: The commission shall cause to be prepared a preliminary report, with such plat or plats as may be necessary and showing: (a) The description, quantity and nature of the property to be taken; (b) the amount of damages awarded therefor; (c) the amount of benefits assessed to the adjoining land (which shall not exceed the damages awarded and costs of condemnation), and which in case of a railroad crossing shall be governed by the section of this sub-title for such eases provided; (d) the names of the persons interested in the property taken or benefited, with their respective estates and interests therein (and if any such estates or interests shall belong to the unknown heirs of any deceased owner, the report shall so state) ; (e) and the damages and benefits awarded or assessed ²⁸¹ to each.

Upon completion of such report the State Roads Commission shall, by an advertisement inserted twice successively in one or more newspapers published in the county where the land lies, give notice to the parties interested (naming them) that such preliminary report is open to inspection at the office of the commission, and that during a period of fifteen days from the date of the first publication of such notice the commission will hear objections and make sncb corrections as may be proper. After the expiration of said period of fifteen days a final report, including such plat or plats as may be necessary, shall by the commission be deposited with the clerk of the circuit court for the county in which the property to be taken lies; and thereupon the commission shall, by advertisement inserted three times successively in one or more newspapers published in said county, give notice to the parties interested (naming them) that such final report has. been deposited, and that after the expiration of twenty-one. days from the date of the first publication the said report will become (and the same shall become) absolute and final as against all persons who shall not in the meantime have appealed therefrom to such circuit court. Every such appeal shall, upon order of the appellant’s attorney be docketed as a separate case in the name of the appellant against the State of Maryland. Accompanying such order shall be a statement of the grounds, upon which the appeal is based, and every such appeal shall be beard as promptly as may be on such day as the court shall fix.

The appellant shall be entitled to have the amount of his damages or benefits assessed by a jury, and shall have the right to appeal to the Court of Appeals on any question of law involved. At every such inquisition the State shall proceed as if party plaintiff, and the costs in the circuit court shall be paid by the State. If no such appeal from the report of the commission shall be taken, or when all such appeals have been finally disposed of, it shall be lawful for the State Roads Commission (if for any reason such course may become necessary) to pay into court, under an order of the judge thereof, the amount due to any person in interest, and there* ²⁸² upon the title to the property so paid for shall be vested in the State of Maryland. In addition to publishing the notice of the preliminary report herein provided for, the commission shall cause a printed copy of such notice to be mailed to the persons interested, SO' far as their postoffice addresses are known or can reasonably be ascertained; provided, however, that such action shall not be deemed a pre-requisite to the validity of the proceeding.

If any of the parties in interest residing in this state are within the age or non compos mentis or other contractual disability and are not represented by a guardian, committee or trustee, it shall be the duty of the commission to certify such fact to the court at the time of filing its final report, and thereupon the court shall make such order for the protection of the rights of such person under disability as may be proper.” •Section 40 is a section of the subtitle “Public Roads” of article 91, and it is to be noted that it provides that whenever the State Roads Commission is authorized, under the preceding sections of article 91, to acquire land for the purpose of building a new road or widening an existing road, “it shall and may be lawful for said commission to proceed as follows.” It authorizes the State Roads Commission to acquire the necessary property in the manner prescribed in that section, but does not compel or obligate it to proceed thereunder; nor is it the exclusive method, for, by the provisions of section 28 of article 91, the State1 Roads Commission may “acquire for the State 'of Maryland, by agreement, gift, grant, purchase or condemnation proceedings as prescribed by sections 203 to 209, inclusive, or by sections 331 to 337, inclusive, of article 23 of the Annotated Code of Public General Laws, any private road or roads whatsoever, or private property or rights of drainage for public use, whether belonging to private individuals or to turnpike companies or other corporations, and including any avenues, roads, lanes or thoroughfares, rights or interests, franchises, privileges or easements, that may be, in its judgment, desirable or necessary to complete said system of roads ' to carry out the purpose of this act.” ²⁸³ Sections 203 to 209, inclusive, of article 23 fix the procedure to be followed by railroads in condemnation proceedings; and sections 331 to 337, inclusive, of article 23 provide a procedure for condemnation by other corporations incorporated under the laws of Maryland, which are authorized to acquire land by condemnation. Both of these procedures, that is to say, condemnation by railroads and other corporations., have been superseded by the enactment of article 33A of the Code, title “Eminent Domain.” Article 33A does not exclude the use of those two modes of procedure when the condemnation is for highway purposes, because by the explicit terms of section 15 of article 33A it is: “Provided, however, that nothing in this article contained shall apply to or change the present law or procedure for the opening, closing, widening or straightening of highways.” This court has had occasion to pass, upon the effect of the quoted exception. Brady v. Road Directors of Allegany County, 148 Md. 493 , 129 A. 682 ; Hubbard v. Baltimore, 158 Md. 46 , 148 A. 128 ; Koehler v. State Roads Commission, 125 Md. 444 , 94 A. 16 . In the last-mentioned case the State Roads Commission instituted condemnation proceedings under the provisions of chapter 141 of the Acts of 1908, being now section 28 of article 91 of the Code.

Objection was there made that the proceedings, were null and void for the reason that the method of condemnation employed had been repealed by article 33A of the Code; and it was expressly held, construing and applying the language of the exception contained in section 15 of article 3 3A, that that article in no wise impaired, affected, or changed the procedure provided in section 28 of article 91 of the Code, when property was sought to- be condemned for highways. It is therefore clear that all of the methods of procedure for condemning property for highway purposes by the State Roads Commission, contained in article 91 of the Code, are in full force and effect and may be resorted to by the State Roads Commission. The paper writing of the appellant first alleges that the State of Maryland, through its agent the State Roads Commission, exercising its power of eminent domain, appropri ²⁸⁴ atecl for public use tbe appellant’s property; and later alleges that, in violation of tbe Constitution of Maryland and tbe Fourteenth Amendment of the Constitution of the United States, no condemnation or any other proceedings of any sort were had respecting the taking and appropriation of the aforesaid property. In effect, the contention by the appellant is that because the .State Roads Commission, a state agency, appropriated her property, it was exercising the State’s right of eminent domain, even though no act had been done by