Moale v. Mayor of Baltimore

Le Grand, C. J., delivered the opinion of this court. We deem it but necessary to briefly state the principles which we think should govern the decision of this and all similar cases. • In the case of Alexander and other, vs. The Mayor and City Council of Baltimore, 5 Gill, 383 , the principle was distinctly enunciated, that it is a portion of the inherent sovereignty of the State, to appropriate to a public use the' property of individuals when public necessity or utility requires it, upon securing to the party a just compensation' for any injury he may sustain. This is hot an exercise of the taxing power, but an exer-" cise of the right of eminent domain as contradistinguished from it. These two powers although somewhat alike aré not the' same.

The distinction between them is clearly pointed out in a very able opinion of Justice Ruggles, in the case of The People, vs. Mayor &c. of Brooklyn, 4 Comstock, 423, 425. He says: “Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public bur-then. Private property taken for public use by right of eminent domain, is taken not as the owner’s share of contribution to a public burthen, but as so much beyond his sharer Special compensation is therefore to be made’in the latter case, because the government is a debtor for the property so taken; but not in'the former, because the payment of taxes is a duty and creates no obligation to repay, otherwise than in the proper application of the tax.” The case of Alexander vs. The Mayor and City Council of Baltimore, also establishes the constitutionality of a law providing for the opening of a street or road, which imposes alT the costs on those who are the more immediately bénefitedinstead of the community at large. ³²¹ These principles, together with those recognized in the case of White vs. Flannigain, 1 Md. Rep., 540 , furnish us with all that is necessary for the decision of this. In that case it was laid down, that where a party sells property lying within the limits of a city, and in the conveyance, bounds such property by streets designated as such in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies, necessarily, a covenant that the purchaser shall have the use of such streets.

We proceed to apply these principles to the Case before us. The appellant claims damages for the bed of Biddle street, according to its value, having reference to contiguous lots. On the other hand, it is said, he is entitled to but nominal damages, on the ground that the first proviso of the 16th sec. of the act of 1817, ch. 148, provides, “that no person shall be entitled to damages for any improvement, unless the same shall have been made or erected before the laying out or locating of such street, lane or alley, or part thereof respectively.” And it was in conformity to this view, that the court below instructed the jury that the appellant was only to be allowed for his lots in the bed of the street as unimprovable lots. This ruling of the court brings before us directly the constitutionality of the proviso to which we have adverted.

While it is clear that the sovereign power has the right to impose a tax in such amount as to it may seem meet, and also to appropriate private property to public uses, yet it cannot do the latter without making just compensation for it. The sacredness of the rights of property, is everywhere recognized by the spirit of the common law, Magna Charta and our Bill of Rights. Under our present Constitution, there could be no question, for it distinctly provides in its 3rd article, section 46, that compensation shall be made before the property is taken. Although the language of the Bill of Rights of 1776, is not so distinct, its spirit is equally as comprehensive so far as the right to indemnification is involved.

We hold, therefore, that it was not competent to the legislature to confiscate the property of the citizen, and we regard the provi ³²² sion- of the act of 1817. which denies to the proprietor the use' of his land, as nothing short of an act of confiscation, it has been said in reply to this view, that the owner of the bed of a street liable to be opened, would be more benefited by the enhanced value of his adjoining property, than he would be damaged by the appropriation of his property in the bed of the street. This view assumes as a fact that which in many eases is- not so. A person may not own any adjoining lot's; and if his property lying in the street can be taken without compensation, then it is confiscation and nothing else. It has now been thirty-seven years since the passage of the act-of 18Í7, and many of the streets designated on the plot of the city, have not as yet been opened.

How many years may elapse