Fitzwater v. Youghiogheny Hydro-Electric Corp.

131 A. 776, 149 Md. 461, 1926 Md. LEXIS 149

• Court: Court of Appeals of Maryland
• Decided: January 13, 1926
• Status: Published

Opinion

Bond, C. J.,

delivered the opinion of the Court.

The appellants contend that an order of the Circuit Court of Garrett County, closing two portions, of a road in that county, under the provisions of article 25, sections 142, et seq., of the Code of Public General Laws, is invalid because, in the original proceedings before the county compnissioners, ii was not made to appear that the persons who gave the public notice, and filed the originating petition, were citizens of the county. Section 143 of article 25 provides that, “whenever any citizen of any county intends to petition the county commissioners for opening, altering or closing any road, he shall give thirty days’ notice thereof in one or more of the newspapers published in the county.” And taking the effect of this to he that the right of petitioning is restricted to citizens of the county, it is contended that a showing of citizenship on the record is essential to the validity of an order closing' a road, under the rule that all facts essential to the valid exercise of a special, limited jurisdiction must be made to appear on the face of the proceedings. Smith v. Goldsborough, 80 Md. 49, 59; Cumberland Valley R. Co. v. Martin, 100 Md. 165, 166.

The Youghiogheny Hydro-Electric Corporation, incorporated under the laws of this State, is developing the water power of the Youghiogheny Eiver and its tributaries in Garrett County, to generate electricity for public use; and as tbe impounded water would flood portions of several roads, including tbe one in question, notice Was given by tbe corporation of intention to make application for tbe closing of all tbe roads to be flooded, and, in due course, a petition was prepared and filed with the county commissioners. Tbe notice was signed “Yougbiogbeny Hydro-Electric Corporation, a Maryland corporation,” and tbe petition was signed by twelve individuals, and in the name of tbe corporation; but neither tbe notice nor tbe petition contained any statement of citizenship. Counter petitions were filed by the appellants and, after a bearing, tbe county commissioners ordered tbe ro'ad closed as prayed, and executed an agreement with tbe Yougbiogbeny Corporation, which required tbe company to construct substitute ways. At tbe bearing, to meet an objection to tbe signature of tbe corporation, F. E. Corliss, an agent, added to tbe corporate signature on tbe petition: “By F. E. Gorliss, Agent.” On appeal to tbe circuit court, tbe appellants filed a motion to quash tbe proceedings, and after & verdict of a juiy for tbe closing of the road, filed a motion in arrest of judgment. Tbe court -overruled both motions and finally ordered tbe parts of the road in question closed. Tbe appeal is grounded on error in the overruling of tbe motions. Both motions raise tbe ■one question of jurisdiction already stated.

Tbe county commissioners attached to tbe record of their proceedings, and transmitted to the circuit court, tbe agreement executed by themselves and by tbe corporation. It :reoit©s tbe whole proceeding, and declares that, in consideration of tbe closing of tbe portions of tbe various roads, the corporation agrees with tbe county commissioners to construct tbe substitute ways as specified. Tbe agreement and tbe order seem clearly to form one transaction, each essential to tbe other, and inseparable from the other; and the agreement, in our opinion, wafe properly attached to tbe order, and formed a proper part of tbe record of tbe proeeeding. And any facts shown in the agreement would be shown, on the record of the proceeding. It recites that the corporation is formed under the laws of Maryland, and is engaged in the work of constructing the dam in Garrett-County to impound water for development of electric energy for public use, that it has purchased several 'thousand acres of land for impounding the water, and that for the same purpose it is necessary to close specified portions of county roads. In Baltimore and York Turnpike Co. v. Crowther, 63 Md. 558, 572, 573, this Court held it to be a general rule of law that the place of residence of a corporation is the place where its principal office is located or where its principal operations are carried on. And, under that rule, the present corporation would, on the face of the record of the proceedings, as they came from the county commissioners— to go no further, now — appear to 'be a resident of the county where it gave its notice and filed its petition. The statute, however, refers to a. petition, not by a; “resident,” but by a “citizen” of the counity. The appellee assumes “resident” and “citizen” to be synonymous, within the meaning and purpose of the statute, and the appellants deny that they are so, and deny that -a corporation can'be included under the word “citizen.”

The mere use of the word cannot be taken as determinative, because the word has more than one meaning. “The word ‘citizen’ has various meanings,” said this Court in Risewick v. Davis, 19 Md. 82, 93, “viz: ‘A native of a city, an inhabitant who enjoys the freedom and privileges of the city in which he resides, an inhabitant, a dweller in any city, town or place; a person native or naturalized, who enjoys the privilege of exercising the elective franchise.’ * * * In which of these senses the word was used in the Act of 1795, ch. 56, (the attachment law), does- not appear from the cases above referred to. If the object of the law; was, as some of the earlier eases indicate, an amelioration of the common-law process, or the protection of our own citizens from summary process, as well as to give them a remedy against debtors residing out of tbe process of tbe court, as-other's declare, the largest interpretation of the word would be most consonant to reason and justice * * * hence citizen would be synonymous with ‘inhabitant or permanent resident’ in a city or county, as all such are alike entitled to the most enlarged remedial process, and protection front summary proceedings-, equally, with native or adopted citizens, enjoying the elective franchise, and the right of purchasing and holding real estate. This construction does not conflict with the provisions of Act 1715, ch. 40, but gives a cumulative remedy adapted to the exigencies of ‘trade and commerce which would otherwise be much, embarrassed by the delays of the law.” It was therefore held that in the restriction of the right of attachment to citizens of this state' or of some other state, the word “citizen” included inhabitants or permanent residents. And in Field v. Adreon, 7 Md. 209, 213, the Court held that an unnaturalized Irishman, residing in Baltimore City, wats a “citizen” within the meaning of a provision for attachments of the property of citizens absconding. “Tt certainly never could have been the intention of our Legislature,” said the Court, “to have made such an invidious distinction in favor of foreign citizens residing in our State, over our own resident citizens,, as to exempt the former from being proceeded against as absconding debtors, while the latter were to be held subject to all the penalties; of the attachment laws 'against debtors absconding to evade their creditors. * * * A party may not be a citizen for political purposes, and yet be a citizen for commercial or business purposes.” State v. Trustees, 11 Ohio, 24, 27; McKenzie v. Murphy, 24 Ark. 155, 159;. Bacon v. Board of State Tax Commrs., 126 Mich. 22.

The word is found used in many clauses, statutory and constitutional, especially those of earlier years, which have established general rights and obligations. For instance, the clause in the Bill of Eights of Maryland concerning liberty of the press (article 40) provides, “that every citizen uf the State ought to be allowed to speak, write, and publish Ms sentiments on -all subjects, being responsible for tbe abuse of that privilege.” Tbe Compact of 1785 between Virginia and Maryland, with which the Court has had to deal in another case at this term, secures to “citizens” of the two states rights in the ownership of property on the shores of the Potomac River. Articles in the Code pertaining to rights in ferries and fisheries provide, in words, for “citizens,” “residents,” or “inhabitants.” Article 37, section 1; article 39, section 19; article 72, section 111; article 92, section 4. The Court has never been called upon to construe the words in any of these clauses. Put the expression in the Bill of Rights, which, taken alone, is even more restrictive, “that no man ought to be taken or imprisoned or disseized * * or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the Land,” has been treated as including corporations. Regents of Univ. of Md. v. Williams, 9 G. & J. 365, 412. And the same breadth has been given it in other provisions. Laurel Canning Company v. Baltimore & Ohio Railroad Company, 115 Md. 638, 642. Chancellor Bland, in Cape Sable Company’s Case, 3 Bland, 606, 656, held that corporations came within the spirit, if not the letter, of a statute (Acts, 1801, ch. 74, sec. 11), which prohibited the arrest of “any inhabitant out of the county where he or she doth reside.” On the other hand, there are references to citizens or individuals which obviously cannot be construed to include corporations. Snob are those in the constitutional provisions regarding the holding of public offices, (article 35 of the Bill of Rights), religious freedom (article 36), -and the elective franchise (article 1 of the Constitution).

Corporations organized under the laws- of the several states have been held to he included within the phrase “citizens of the United States,” in an Act of Congress concerning -claims arising from Indian depredations, and within “citizens of the United States and those who have declared their intention to become such,” in a statute giving a, right to purchase mineral deposits in the public lands. The Baltimore Insurance Company was included in the benefits provided by the French Spoliation Act of January 20, 1885, for “citizens of the United States or their legal representatives.” And the same comprehensive, effect has been given to similar expressions in treaties. United States v. Northwestern Express Co., 164 U. S. 686, 688. Ramsey v. Tacoma Land Co., 196 U. S. 360.

In State u. Trustees, 11 Ohio, 24, it was held that, as used in an act relating to the acquisition of public lands by religious societies, requiring such societies to furnish a list of the names of their members, specifying that they were citizens of the particular township', the word “citizen,” was synonymous with resident. “It can hardly be believed,” said the court, “that the Legislature, in using the word ‘citizen,’ in this statute, intended to make a distinction between native or naturalized citizens, and resident aliens. Why should such a distinction be made? Is there not as much need of religious instruction in the one dase as the other ?” And in McKenzie v. Murphy, supra, a statutory reservation of a homestead exemption to “every free white citizen of this state, male or female, being a householder or head of a family,” was held to include aliens domiciled in the state. In Attorney-General v. Police Commissioners, 30 R. I. 212, a statute providing for liquor licenses, to “citizens resident within this state,” was held, because of the legislative construction, to include corporations which the General Assembly had created for the express purpose of engaging in the liquor business. On the other hand, the word .“citizen,” in a statute denoting the persons who might sign petitions for change in school district boundaries, was held to mean an elector. School Dist. No. 11 v. School Dist. No. 20, 63 Ark. 543. And another requiring1 that fifteen bona fide citizens sign a petition to initiate a proceeding’ to compel railroads to make connections, was held to exclude corporations. St. Louis & S. F. R. Co. v. State, 120 Ark. 182.

What the word comprehends in particular statutes must be sought, then, in the purpose and intent underlying each. “These considerations,” said Mr. Justice White, in United States v. Northwestern Express Co., supra, “give rise to an ambiguity which we must solve, not by reference to a mere abstract technicality, but by that cardinal rule which commands that we seek out and apply the evident purpose intended to be accomplished by the law-making power.” And this purpose must be found by ascertaining the nature of the private interests to be affected, and for which it may be assumed the Legislature intended to provide, and the nature of the public interest which it may be assumed the Legislature intended to protect and promote.

The opening or closing of a road would seem to he a matter affecting all residents of the county alike, all those;, that is, who may he entitled to have their convenience considered and promoted by the local government, and appears to have no especial relation to the political rights of individuals in the county. Outside of political rights, corporations in the county stand on substantially tbe same footing as individuals. They own property, pay taxes, and share proportionately in all the burdens of government; engage in the business activities of the- county, and are entitled to have their convenience given equal consideration. From the side of the private interests to> be affected, there would seem, then, to be no reason for excluding corporations from making the application to the county commissioners, and inaugurating the proceeding in which the wisdom and propriety of opening or closing a road is to be determined. And there would seem to be no public interest to require it.' To construe it that way would he to suppose that in this day of widespread use of the corporate form of organization, notwithstanding the general equality of corporations in respect to1 rights not political, if the land to1 be affected is owned by corporations, or if the activities to be served, however beneficial they may be to the people of the county, are to he conducted by corporations, the county commissioners are not to receive applications in the corporate name. Practically, it would be to suppose that tbe Legislature intended, in such cases, to insist upon application under the borrowed names of indivictuals. And it seems to us unreasonable- tO' suppose that tbe Legislature meant to- require sucb a profitless formality.

Our opinion is that tbe purpose and intention of tbe Legislature is not to- be so narrowly construed, and that tbe Yo-ughiogheny Corporation was, on tbe record before tbe county commissioners, entitled to make, in its own name, tbe application on wbicb tbe commissioners proceeded. Tbe dc-lay in adding tbe name of tbe agent signing, so far as that may bave been necessary, was immaterial. Tbe rule- wbicb requires tbe jurisdictional facts to appear is not a rule of pleading or one concerned witb particular documents, at particular stages of tbe proceedings; tbe requirement is merely that some-wbere in tbe record tbe courts shall find assurance- that tbe action taken was in a proceeding in wbicb sucb action was authorized by law. Smith v. Goldsborough, supra; Cumberland Valley Railroad Company v. Martin, supra.

Order afjvt'med, with costs to the appellee.