King v. Mayor of Rockville

MacDANIEL, J., delivered the opinion of the Court. Case No. 1396, September Term, 1981, William Lawson King, Cordelia E. King and William I. King, appellants, versus the Mayor and Council of Rockville, Maryland was consolidated for argument on appeal with Case No. 1407, September Term, 1981, William Lawson King and Cordelia E. King, appellants, versus Montgomery County, Maryland. For purposes of simplicity we shall hereafter refer to all appellants as appellants or Kings; Mayor and Council of Rockville, Maryland as Rockville; and Montgomery County, Maryland as Montgomery County. In both cases appellants question the constitutionality of the procedure whereby an ¹¹⁵ order of limited entry under § 12-111 (a) and (b) 1 of the Real Property Article (1981 Repl.

Vol.) of the Maryland Annotated Code was obtained from the Circuit Court for Montgomery County, permitting agents of Rockville and Montgomery County to enter upon appellants’ property for purposes of making a survey and obtaining other information relating to the acquisition or future public use of that property. Appellants do not directly attack the constitutionality of that statute which permits such an entry; they attack its application to them in these cases because, they contend, the notice given was served upon their lawyer, not them personally, and they were deprived, therefore, of a right to be heard before the order to enter was signed ex parte. Case No. 1396 (Rockville) Rockville notified the Kings that its respective agents would be entering upon the property of the Kings in order to perform "surveys, run lines, set stakes, markers and obtain ¹¹⁶ other information relating to the acquisition or future public use of the property” in accordance with R.P. § 12-111 (a), unless an objection was made. The Kings responded by stating that no survey parties, agents or other persons would be permitted to enter the property for any purpose.

On October 9, 1981, Rockville, pursuant to § 12-111 (b), obtained an order from the Circuit Court for Montgomery County granting permission to enter upon appellants’ land. Alleging a denial of constitutional due process, appellants contend that: "The circuit court erred and deprived the appellants of due process when it signed an ex parte order permitting entry upon the appellants’ land before the petition requesting that order was served upon the appellants or before the appellants were given an opportunity to respond to the petition.” On motion to dismiss the appeal, however, appellee points out that it has already performed its mission under the order being appealed, and that no further action can or will be taken by appellee pursuant to that order. Appellants reply that they are still subject to possible encroachments upon other sections of their land pursuant to the order. They also would have us address the constitutional issues they have raised by brief because it will aid them in a trespass suit for damages which they have filed regarding this case pursuant to R.P. § 12-111 (c). 2 At oral argument appellants conceded that not only had the survey and other work under the order been completed but the property has been taken and the road completed. ¹¹⁷ Appellee conceded that it has no intention, under color of the order, to enter upon other parts of the land in the future.

The purpose behind the issuance of the order having been achieved and completed, the question of its issuance is moot for purposes herein. We shall therefore vacate the order from which this appeal arose and grant the appellee’s motion to dismiss. Case No. 1407 (Montgomery County) As in the Rockville case, Montgomery County notified appellants of its intention to enter upon their land to perform surveys, etc. pursuant to § 12-111 (a) and were notified by appellants that no survey parties, agents or other persons would be permitted to enter upon the property for any purpose. On June 17, 1981, an order of court was issued granting appellee permission to enter upon appellants’ land pursuant to § 12-111 (b).

This order was hand delivered to counsel for appellants on June 16, 1981, and a "discussion” concerning the order took place in the judge’s chambers that same afternoon with all counsel present. 3 Unlike the Rockville case, Montgomery County has taken no action under the June 17, 1981, court order, thereby presenting to this Court a viable issue stated by appellants thusly: "Did the circuit court err and deprive the appellants of due process when it signed an ex parte order permitting entry upon the appellants’ land before the petition requesting the order was served [4] upon the appellants or before the appellants were given an opportunity to respond to that petition?” ¹¹⁸ In essence, appellants contend the ex parte order deprived them of due process of law in contravention of the Fourteenth Amendment to the Constitution of the United States and Article 24 of the Maryland Declaration of Rights. Before beginning the analysis of the due process question, it should be noted that the Court of Appeals has previously determined that Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment of the United States Constitution have the same meaning. Barry Properties v. Fick Brothers, 277 Md. 15 (1976). The due process question as it relates to § 12-111 has not been previously decided by the Maryland Appellate Courts.

Nor have we been referred to or found any federal cases directly on this issue. We can find guidance, however, in those cases which have dealt with due process challenges to the "advance take” or "quick take” method of land acquisition as authorized by Article III, § 40A of the Constitution of Maryland. The "quick take” or "advance take” method allows the sovereign to enter on and take immediate possession of private land upon tender to the owner of an amount estimated to be the fair market value of the land and improvements taken. The legion of cases and authorities make it clear that the Kings would have no federal constitutional right of notice in a condemnation proceeding.

See North Laramie Land Co. v. Hoffman, 268 U.S. 276 (1925); Georgia v. Chattanooga, 264 U.S. 472 (1924); Joslin Co. v. Providence, 262 U.S. 668 (1923); Bragg v. Weaver, 251 U.S. 57 (1919); 1 Nichols on Eminent Domain, § 4.102[1] (3d ed. 1976). This is so because the Supreme Court has repeatedly characterized the condemning authority’s decision on the necessity for a taking and the quantity to be appropriated as legislative and has, therefore, denied landowners the right to participate in that decision making process or to litigate on federal constitutional grounds the decision to condemn private property. See U.S. v. Welch, 327 U.S. 546 (1946); Joslin and Bragg, supra. In Joslin, supra, the Supreme Court at 678-79 stated: ¹¹⁹ "Finally, the validity of the act is challenged as denying due process of law, on the ground that the question of the necessity for the taking of the property has not been determined by the Legislature itself, but is relegated to the city to decide ex parte, without appeal or opportunity for hearing and decision by an impartial tribunal.

That the necessity and expediency of taking property for public use is a legislative and not a judicial question is not open to discussion (citation omitted). Neither is it any longer open to question in this court that the Legislature may confer upon a municipality the authority to determine such necessity for itself, (citation omitted). The question is purely political, does not require a hearing, and is not the subject of judicial inquiry.” In a case involving an "attack” on a statute not requiring a hearing prior to a "quick take,” the Supreme Court in Rindge Co. v. County of Los Angeles, 262 U.S. 700 (1923), at 709 said: "... this statute is not in conflict with the Fourteenth Amendment, either because it fails to provide for a hearing by the landowners before such resolution is adopted, or otherwise. The necessity for appropriating private property for public use is not a judicial question.

This power resides in the Legislature, and may either be exercised by the Legislature or delegated by it to public officers. 'Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions no matter who may be charged with their decision. . . .’ (citation omitted).” The Supreme Court cases make it clear that the decision of what property to condemn and the necessity for it are legislative determinations. Notwithstanding the abundance ¹²⁰ of authority upholding the denial of hearings in eminent domain proceedings appellants allege the proceedings here had not yet reached that stage and they were therefore entitled to a hearing. To support their argument that they are entitled to a hearing, the Kings cite Mackie v. Town of Elkton, 265 Md. 410 (1972).

In that case suit was instituted by the Mayor and Commissioners of the Town of Elkton to obtain an order of court pursuant to Art. 33A,