Ridgely v. Mayor of Baltimore

Per Curiam: This is an appeal from a judgment of the Circuit Court for Baltimore County condemning certain lands of the appellants for use by the Mayor and City Council of Baltimore in the establishment and protection of a new and larger supply of water for the city. The questions raised at the trial below related to the validity of the Act of 1912, Chapter 117, under which the proceeding was conducted, and to the necessity of the particular condemnation for the purpose proposed. The rulings upon the latter issue, as to which exceptions were reserved, consisted in the granting of a prayer defining the petitioner’s rights in the premises under its charter, and in the refusal of an instruction that no legally sufficient evidence had been offered to sustain 'the applica ⁵⁷¹ tion. These exceptions have not been pressed on appeal, and in our opinion the rulings to which they refer were proper.

The questions argued were concerned with the validity of the statute referred to, and they are fully covered by the opinion of the learned Court below, upon the principles and reasoning of which we will rest our decision and affirm the judgment. The opinion is as follows (Bunios, J.) : The questions before the Court are presented by the issue raised upon the seventh paragraph of the amended answer, and by the demurrers filed by the petitioner to various paragraphs of the answers to the petition filed by the Mayor and City Council of Baltimore for a judgment of condemnation against the property described in the petition for the purposes mentioned. These questions are of more than ordinary importance, and have been fully and ably argued by the respective counsel. We have carefully considered the questions, and will state the conclusions to which we have arrived and will give some reasons upon which our decision rests.

It must be admitted that under Chapter 214 of the Acts of 1908 (p. 649), the petitioner, the Mayor and City Council of Baltimore, had the power to condemn the property described in the petition for the purposes therein stated. The real question in the case is whether the procedure for the acquisition of the property by condemnation shall be that provided by the Acts of 1908, Ch. 214 (p. 649), as amended by the Acts of 1912, Ch. 32, or by that provided by Chapter 117 of the Acts of 1912: This involves the question, which is presented by the pleadings, of the constitutionality of the last named act. It is obvious, if that act be valid, that the procedure for the acquisition of land in the State by condemnation must be that provided therein. It was the evident intention of the Legislature to provide by the act a new and exclusive method or procedure for the acquisition of private property for public ⁵⁷² use by condemnation.

This, we think, is plain from the language of the seventh section of the act, which declares that; “The State, and any municipal or other corporation, commission, board, body, or person, which, under the laws of this State, has the right to acquire property by condemnation, shall acquire such property, if condemnation proceedings be resorted to, in pursuance of and imder the provision of this article, anything in any other public general law or public local law or private or special statute to the contrary notwithstanding; 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.” If, therefore, the act be valid, the petitioner, having the power to condemn, properly instituted its proceedings under the provisions of the Act, and the petition which is filed was in all respects sufficient under section 2 of the Act. The land owners have assailed the validity of the Act for certain reasons, which may be grouped under the following heads: 1st. Because it violates section 3 of Article 29 of the Constitution, which provides “that every law shall embrace but one subject-matter, and that shall be described in its title.” 2nd. Because the provisions of the Act, requiring the Court to appoint appraisers, impose a non-judicial duty upon the Court. 3rd.

Because proper notice to the land owner is not provided, and that under the Act an owner might be deprived of his property without due process of law. 4th. Because the Act violates Article 3, section 40, of the Constitution, in that private property may be taken under it for public use without just compensation as agreed upon between the parties, or awarded by a jury being first paid or tendered to the party entitled to such compensation. ⁵⁷³ 5th. (a) Because the Act was not passed hy the Legislature as it appears in the printed laws of 1912. (6) Because it was not engrossed in both houses as required by the Constitution.

(c) Because an amendment to the bill striking out the provision relating to the appointment of appraisers was adopted by the Legislature, which amendment was omitted from the enrolled bill signed by the Governor. It is contended that the law as passed contained the following provision: “From any final judgment of the Court an appeal may likewise be taken within thirty days thereafter, but not afterward, and the record shall be sent up to the Court of Appeals within sixty days after the entry of said appeal.” Inasmuch as the enrolled copy, which was signed by the Governor and deposited with the Clerk of the Court of Appeals, omitted this provision as to the right of appeal from the final judgment, it is contended that the Act is null and void, and that the proceedings for condemnation instituted by the petitioner under it must fail. The first four reasons assume the Act to have been constitutionally passed, and assail its validity upon the grounds assigned. The last reason urged is that the Act as signed by the Governor was never constitutionally passed.

The Court is not concerned with the wisdom, expediency or policy of the law, or whether it is any improvement upon the old system of condemnation. These are political questions, exclusively committed by the Constitution to the judgment of the Legislature. The only questions we can decide are: 1st. Assuming the Act as signed by the Governor to have been constitutionally passed, had the Legislature power to pass it? 2nd.

Was the Act as signed by the Governor constitutionally passed ? First. — We will now consider the objections to the Act in tho order in which we have stated them. The Act relates in all its provisions solely to the procedure to be adopted and followed in all cases where the condemnation of private ⁵⁷⁴ property for public use is sought to be acquired, except in cases for the opening, closing, widening or straightening of highways. It does not confer the power of condemnation; but it seeks only to regulate the exercise of that power by persons or corporations who now have, or may be hereafter invested with it.

The object of the Act and the scope of all its provisions is to do, precisely what its title, as originally drawn, declared it was intended to do, viz: to reguilate the procedure for the acquisition of property for public use by condemnation, and the amendment to the title, which was wholly unnecessary, made in the Senate was not calculated to mislead any reasonable man as to the general scope of the Act. In our opinion, the subject-matter of the Act is sufficiently described in the title to gratify the requirements of the Constitution. It is only the subject of the Act that need be described in the title. There is no requirement that the means, the instrumentalities, or the procedure by which the subject of the Act are to be carried into effect shall be described in the title.

State v. Davis, 7 Md. 161 ; Parkinson v. State, 14 Md. 184 ; Baltimore City v. Flack, 104 Md. 107 ; Bond v. Baltimore, 116 Md. 683 , and other cases. Second. — The mode and manner of the exercise of the power of Eminent Domain is exclusively vested in the judgment and discretion of the Legislature, subject only to- the provisions of section 40 of Article 3 of the Constitution. The execution of the method provided for ascertaining the compensation to the owner for the property taken in a proceeding' pending in Court is a matter so closely associated with the administration of justice that the appointment of appraisers by the Court may be said to be a judicial act. Tt certainly cannot be said that it is so far non-judicial as to render the Act void for that reason.

Rone of the Maryland cases which deny the exercise of non-judicial powers to the Court have gone to the extent contended for in this case. The appointment is directed to be made in a pending. case - after the question of the right to condemn has been deter ⁵⁷⁵ mined, and the duties which the appraisers are directed to perform involve, the valuation to the owner of the land taken. Third. — Sections 3 and 4 of the Act are as follows: “3. Upon the filing of said petition, the Court, or any judge thereof, shall pass an order directing a summons to issue for the defendant to be served in the same manner as summons in actions at law, and returned by some day to be named in said order, not less than ten days nor more than twenty days from the day of the filing of said petition.

If any defendant be not summoned before the return day of the summons, the summons may be re-renewed from time to time, as often as the Court, in its discretion, may think proper; or, if any defendant is non-resident or unknown or returned non est twice successively, the Court shall order the sheriff to set up a copy of the summons for such defendant upon the property and shall order a notice to be published once a week for four successive weeks, in a paper published in the county where such property is situated, and also in one daily newspaper published in the City of Baltimore, if the proceedings be in a county; and if the proceedings be in Baltimore City, in two daily newspapers published in said City; requiring such defendant to appear in the said Court on or before a certain day to be named in the order, said day to be not less than thirty days nor more than sixty days from the date of the first publication of said order, and show cause why said property, or such defendant’s interest therein, should not be condemned as prayed in the petition.” “4. Every defendant summoned shall within fifteen days after the return day to which he is summoned, and every defendant appearing shall within fifteen days after such appearance file an answer showing causo, if any he has, why the property mentioned in the petition, or said defendant’s interest therein, should not be condemned as prayed. And every defendant against whom publication has been duly made, ⁵⁷⁶ as hereinabove provided, shall file such an answer within the time limited in such order or publication. “The Court shall have power for good cause shown to extend the time for answering. In default of answer within the time hereinabove provided, or any extension thereof which may have been granted by the Court, the Court shall enter judgment that said property, or the interests therein of the defendant or defendants so in default, be condemned. “The Court shall also render the same judgment upon the filing of an answer by any defendant or defendants, if such answer does not deny the right of the petitioner to have the property condemned.

In the event of an answer being filed denying the right of the petitioner to have the property condemned, the Court shall hear the question thus raised as to the right of the petitioner to condemn the property at an early date, to be specifically fixed by the Court; and in case any question of the fact is involved in the determination of that question either party shall be entitled to a jury trial, upon so electing, and either party may take testimony in open Court at such hearing in the manner usual in law cases tried before a jury or before the Court without a jury; and the same procedure shall cover as to the conduct of such hearing and reserving exceptions as in ordinary law cases.” Provision is also made for the appointment by the Court of a duly constituted guardian or committee or guardian ad litem to appear and defend for such defendants as may be under any legal disability. It is also provided by section 5 that after the award of the appraisers has been returned to Court notice by advertisement shall be given “twice a week for one week in two of the daily papers published in Baltimore City, or, where said property is situated in a county, by advertisement for one week in one paper published in said county, that such award ⁵⁷⁷ has been returned, and all persons having interest therein may show cause, if any they have, why the same shall not he confirmed during the ten days succeeding the filing of said award.” A condemnation proceeding for the acquisition of private property for public use has always been held to be a proceeding at law, and the Act under consideration does not change the proceeding into an equitable one. On the contrary, it recognizes its purely legal character. It provides that they shall be begun “on the law side” of the Court; that the summons for the land owners shall be served “in the same manner as summons in an action at law;” that the Court shall give “judgment” either condemning the property, or dismissing the petition; in the trial of any question of fact exceptions may be reserved “as in ordinary law cases;” the exceptions to the award of the appraisers, when heard by the Court or a jury, shall be tried and determined “in the same manner and governed by the same rules of law as to the admission of evidence and instructions to the jury, as now apply to the trial of appeals in cases growing out of the opening of highways;” the Court may send the jury to view the premises, and may strike out the verdict of the jury and grant a new trial; and the appeal allowed is from the “judgment”.

It would, therefore, seem that the Legislature intended to preserve the strictly legal character of the proceedings. There is certainly nothing to indicate that it was the intention to change the proceeding from an action at law to one in equity to be governed by the rules of equity, pleading and practice. The judgment contemplated by the Act, as in all other condemnations where private property is taken for public use, is not a judgment in personam, but it is a judgment against the property sought to be condemned. It is strictly a judgment in rem.

It is, therefore, difficult to understand, in the light of a provision for personal summons, and notices by publication to non-resident owners, etc., contained in the ⁵⁷⁸ Act and which' we have quoted, how it can he said that property can he or might he taken under it without due process of law. The rule is well settled that constructive notice by publication is sufficient to support a judgment in rem as against non-resident, unknown persons, or persons who cannot be found. If this were not so, the Courts would be powerless in many cases to deal with the sale or partition of property of non-resident and unknown defendants, or to decree specific performance of contracts relating to real estate in which such defendants may be interested. But this is constantly done by the Courts under acts providing for such notice.

In Pennoyer v. Neff, 95 U. S. 714 , in which the question of jurisdiction in cases of service by publication was considered by the Court, it was said: “Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem.” In Huling v. Kaw Valley Railroad and Improvement Company, 130 U. S. 559 , where proceedings for the condemnation of land under a statute for railroad purposes was under consideration, Judge Miller, speaking of the sufficiency of notice to a non-resident by publication, said: “Of course, the statute goes upon the presumption that, since all the parties cannot be served personally with such notice, the publication which is designed to meet the eyes of everybody, is to stand for such notice. The publication itself is sufficient if it had been in the form of .a personal service upon the party himself within the county. ISTor have we any doubt that this form of warning owners of property to appear and defend their interest, where it is subject to demands for public use when authorized by statute, is sufficient to subject the property to the actions of the tribunals appointed by ⁵⁷⁹ proper authority to determine those matters.

The owner of real estate, who is a non-resident of the State within which the- property. lies, cannot evade the duties and obligations which the law imposes upon him in regard to such property, by his absence from the State. Because he cannot be reached by some process of the Courts of the State, which, of course, have no efficacy beyond their own borders, he cannot therefore hold his property exempt from the liabilities, duties and obligations which the State has a right to impose upon such property; and, in such cases, some substituted form of notice has always been held to be a sufficient warning to the owner, of the proceedings which are being taken under the authority of the State to subject his property to those demands and obligations.” This doctrine was announced and applied in a suit for the specific performance of a contract in Hollander v. Central Metal Company, 109 Md. 131 . When the provisions of the act are examined in the light of the principles announced in these cases, we think they provide reasonable and sufficient notice to every one interested in the property, and a full opportunity to be heard both upon the question of the right to condemn and the amount of the award of the appraisers. Fourth. — The contention that the act violates section 40, Article 3 of the Constitution, is based upon the provisions of the act relating to the award to be made by the appraisers.

Unless the condemning party and the land owner can agree, the property can only be taken after an award by a jury of just compensation and payment, or tender of the' compensation so awarded by the jury. The method provided by the Act for ascertaining compensation is as follows: “The lower Court shall appoint as appraisers three inhabitants of the city or county where such property is situated, not in any wise interested in the property to be condemned, nor related to the owner or owners thereof, each of whom shall, before acting, make oath before the clerk of said Court, or before any officer ⁵⁸⁰ duly authorized to take affidavits, that he will justly, impartially value the property described in the aforesaid petition, and the interests of the several owners thereof, and as soon as conveniently may be the said appraisers shall assess the value of the property or the interest or estate therein sought to be condemned, and apportion the same among the various owners thereof, according to the values of their respective interests, and return to said Court their award of the value of the said property and of the respective interests of the several owners thereof under their hands and seals * * * The said award shall lie in the Court ten days, subject to exception, and either the petitioner or any of the defendants or any owner or reputed owner of any interest in the property sought to be condemned,