Smith v. State Roads Commission

Smith, J., delivered the opinion of the Court. In this case the parties are able to agree that there is a front-foot benefit charge in the amount of $2,364.11 due appellee Washington Suburban Sanitary Commission (Sanitary Commission). The dispute is between appellants, Alfred H. Smith et ux. (Smith), who believe it should not be deducted from a jury’s condemnation award, and appellee State Roads Commission of Maryland, which does not wish to be in the position of paying twice, once in the jury’s award and a second time directly to the Sanitary Commission.

We shall affirm the order of the circuit court judge who held the sum deductible from the jury’s award. Deciding the case as we do on its merits, we shall overrule the motion of the State Roads Commission to dismiss the appeal. Under the “quick take” provisions of Code (1957) Art. 89B the State Roads Commission on April 5, 1968, filed a petition naming as parties defendant only Mr. and Mrs. Smith. Deposit of $149,180.00 was made in the circuit court.

Pursuant to the provisions of § 14 of Article 89B the property owners were permitted to withdraw the sum paid into court. Thereafter a condemnation petition was filed by the State Roads Commission naming as defendants Mr. and Mrs. Smith, the County Commissioners for Prince George’s County, and the Sanitary Commission. The State Roads Commission sought a fee simple title. ⁴²⁰ The Sanitary Commission filed an answer stating, in part, that it had levied front-foot benefit charges against the property described in the proceeding, that there was then due a balance of $2,364.11 “being that portion of the front-foot benefit charges levied”, and that “under the provisions of Chapter 120, Acts of 1956”, a separate award should be made to it in that amount. The inquisition in its preamble clearly represented the Sanitary Commission as one of the defendants.

It stated in pertinent part: “It is necessary for the Plaintiffs to acquire the said property and that the damages to be sustained by the defendants to this cause for their fee simple interest and estate in and to the parcel of land hereinbefore particularly described, and the property, rights and easements, as set forth in the Petition is the sum of $225,000.00.” (emphasis added) No separate award to the Sanitary Commission was made. An order was passed for the payment to it of the sum of $2,364.11 prior to the deposit by the State Roads Commission of the difference between its original deposit and the award returned by the inquisition plus interest. When payment was made to Smith there was deducted from this additional deposit the $2,364.11 claimed by the Sanitary Commission, although no remittance was made to it. Smith moved to set aside the order directing payment to the Sanitary Commission, thus provoking this controversy.

Smith fashions his argument that the Sanitary Commission is not entitled to payment of the front-foot benefit charges out of the jury’s award by pointing to § 225 of Art. 89B which provides that when the State Roads Commission acquires property “subject to front-foot or other assessments levied by a special tax district, the principal unpaid remaining sum of said assessment * * * shall become due and payable to the said special tax district, and said sum shall become a lien against said property.” Smith argues that the assessment coming due ⁴²¹ under this section is a prospective tax that would not be due except for the fact that the property is being acquired by eminent domain proceedings. He points out that § 225