Mayor of Baltimore v. Kane

Stockbridge, J., delivered the opinion of the Court. This is a proceeding instituted by the Mayor and City Council of Baltimore on the 15th June, 1912, in the Circuit Court for Baltimore County, to condemn certain land in the Gunpowder Valley for “augmenting and improving the municipal water supply of Baltimore City.” The answer of the defendants to the petition denies the necessity for the acquisition of the land for the purpose named, and this question was submitted to a jury in Baltimore County, which, by its verdict rendered on the 2Tth June, 1913, found the existence of the necessity, i. e., that the City was entitled to have the land, which verdict was followed by a judgment in accordance with the verdict on the 16th July, 1913. Thereafter an order was passed appointing appraisers to value the land desired to be acquired by the City, and their report was filed. Exceptions to the return of the appraisers, both by the Mayor and City Council and the land owners, followed next in order, and thereafter the City filed its suggestion and affidavit for the removal of the case under section 8 of Article IV of the Constitution.

The Circuit Court refused to grant the application for removal, and it is from the action of the Court in that respect, that the present appeal is taken. There is involved, therefore, but the single question, whether oiynot. a proceeding for the condemnation of land is such a one, as entitles either party upon making affidavit that he or it cannot have a fair and impartial trial in the Court in which the same may be pending, to have the case removed to some other jurisdiction. The issue is a narrow one and was fully and ably presented by counsel upon both sides, both in the oral arguments and in their briefs. ¹³⁷ The constitutional provisions, insofar as it is applicable to the present case, is as follows: “The parties to any cause may submit the same to the court for detrmination without the aid of a jury, and in all suits or actions at law, issues from the Orphans’ Court or from any court sitting in equity, and in all eases of presentments or indictments for offenses which are or may be punishable by death pending in any of the courts of law of this State having jurisdiction thereof, upon suggestion in writing under oath of either of the partites to said proceedings, that such party can not have a fair and impartial trial in the court in which the same may be pending, the said court shall order and direct the record of proceedings in such suit or action, issue, presentment or indictment, to be transmitted to some other court having jurisdiction in such case, for trial.” The vital words involved are “all suits or actions at law.” The contention upon behalf of the City may be summed up in a very few words, namely, That a proceeding of this character is an action at law, and that being an action at law, it comes within the terms of the constitutional provision giving a right of removal. It is not open to question in this State that a proceeding to condemn land is an action at law.

That has been distinctly held in the case of Ridgely v. Baltimore City, 119 Md. 567 , and earlier cases. The proceeding is not one according to the common law, and is in derogation of private right, and wholly dependent upon statutory regulation and provision. Fork Ridge Cemetery Co. v. Redd, 33 W. Va. 262 , cited in 1 Lewis on Eminent Domain (3rd Ed.), section 387. But in any case the proceeding is a judicial one, and involves the exercise of judicial power; 15 Cyc. 807; Ridgely v. Balto.

City, supra. In some jurisdictions it is held to be a proceeding in rem, but it is described with more accuracy in Chandler v. R. R. Commrs., 141 Mass. 212 , where it is said ¹³⁸ that, “it is not a proceeding in rem, although in some respects resembling such a proceeding.” It is rather in the nature of an inquest, to determine (1) the necessity upon the part of the City for the acquisition of the land described in the petition, and if this necessity is found to exist, then (2) the proper compensation to be paid to the owners for the land so to be taken. The power of the city to acquire lands for the purpose specified in the petition by resort to condemnation is fully conferred by Chapter 214 of the Acts of 1908, p. 649, and by section 6 of the Charter of the City, as framed in 1898, and the procedure to be followed in such cases was fully set out in the Acts above named, and Chapter 32 of the Acts' of 1912. That proceedure involved the application upon the part of the City to a justice of the peace of the county in which the lands were situate, to issue his warrant to the sheriff for the summoning of a jury, and then after certain other proceedings, it provided that “the said jury i shall reduce their inquisition to writing and shall sign and seal the same, and it shall then be returned by said sheriff to the clerk of the Circuit Court for said county, and be filed by such clerk in his office, and shall be confirmed by said