Steuart v. Mayor of Baltimore

7 Md. 500

• Court: Court of Appeals of Maryland
• Decided: June 15, 1855
• Status: Published

Opinion

Eccleston, J.,

delivered the opinion of this court.

'The 12th section of the act of 1817, ch. 148, appointed certain commissioners, with authority to have surveyed and laid off, within the limits of the city of Baltimore, all such streets, lanes and alleys, as they should deem proper and convenient, and to cause the same to be marked with so many and such durable marks as they should think necessary, to return plots with such survey and location, with proper explanations, to the register of the city.

The 13th section enacts: “That the said commissioners be, and they are hereby authorized, to contract for and lay out such and so many parcels of ground within the said city, as they shall judge convenient and necessary to be used for public purposes; and if the price demanded therefor shall be deemed reasonable by the Mayor and City Council of Baltic more, they are hereby authorized to purchase the same at the expense of the city, and such lots or parcels of ground shall be conveyed to the said Mayor and City Council, for the purposes aforesaid.”

Under this act what is known as Poppleton’s plat was made; and upon it is laid out or designated the lot or square then known as “Dr. Steuart’s,” which the appellant says has since been called “Maryland Square,” and through which the proposed extension of Baltimore street passes.

The appellant says this is a public square, made such under the proceedings of the commissioners appointed by the act of 1817, and that the city authorities have no power to open a street through it without closing up the square according to the act of 1838.

This square has never been used by the public for any purpose, but has constantly been held and occupied by the complainant, or those under whom he claims. And the only evidence, of any sort, tending to show this to be a public square, is Poppleton’s plat and the depositions of B. Mayer and N. Williams; which depositions speak of two boundary stones planted for the purpose of designating two points of the square. The record furnishes no proof of any contract between the owner of the property and the commissioners, or that any price was demanded therefor and assented to, or deemed reasonable by the Mayor and City Council, or that they had purchased the sqme, or that it had been conveyed •to them. Seeing that the owner of the property has held and .used it for his private purposes ; and perceiving no proof of any dedication of it to the public, except its having been laid out by the commissioners as described on their plat, and the setting up of two boundaries, it cannot be regarded as a .square for public purposes, contemplated by the act of 1817.

The case of Moale vs. The Mayor and City Council of Baltimore, 5 Md. Rep., 314, was decided upon the principle that ¡the proceedings under the act which gave rise to Poppleton’s plat, did not deprive the owner of the soil of his right to build upon, or to improve it, at his pleasure, although it might be .covered by the bed of an unimproved street, designated on the plat, provided he had not been allowed compensation for the same; and that whenever the city authorities might think proper to open such a street he would be entitled to damages, just as if the street had never been so designated. And that decision was made notwithstanding the first proviso in the J6th section of the act of -1817, which is: “That no person shall be entitled to damages for any improvements, 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.” Perceiving the injustice of this proviso the Legislature qualified it, to some extent, by the act of 1832, ch. 207. The language of the proviso, it will be seen, includes a street, lane or alley, but not a public square. If therefore the principle .of the decision is correct, in reference to a street, it cannot be less so in regard to a square. If this be true, the appellant had the same right to improve what he calls the Maryland Square, which he had to improve any other portion of his land within the limits of the city. And we see no reason why the city authorities have not the right to open a street through the same, in the same manner they have to open one through the private property of any other person. Nor can there be any necessity for them to close the square, for the plain and obvious reason that it never was a public square, in legal contemplation.

One of the grounds relied upon for reversing the order dissolving the injunction is, that the notice of the intended application to the Mayor and City Council to open and condemn the street is defective, in not describing with sufficient accuracy and distinctness the street designed to be opened. But we do not consider the notice defective in the particular referred to.

Another ground on which it is said the injunction should' be sustained is, that the proceedings in regard to opening the street are illegal and void, because they are not in conformity with the 46th section of the 3rd article of our present constitution, which declares : “The Legislature shall enact no law authorizing private property to be taken 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.” The appellant contends he has made no agreement in regard to compensation and that none has been awarded by a jury, consequently the proceedings on the part of the city authorities give him a right to relief by injunction.

It has been conceded, that the two cases of Alexander Sp Wilson, vs. The Mayor & City Council of Balto., 5 Gill, 383, and The Methodist Protestant Church against the same defendants, in 6 Gill, 391, fully recognize the constitutionality of the act of 1838, under which the city acted in this instance. But it is insisted, that those decisions cannot in any degree affect the rights of the complainant secured to him by the new constitution, adopted since those cases were decided. And this renders it necessary to enquire, whether those rights have been violated.

In the third section of the old bill of rights it was declared, “That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury according to the course of that law.” Notwithstanding this, the legislature passed laws at different times extending the jurisdiction of justices of the peace in matters of contract, and giving jurisdiction in matters of tort where they had none previously. These laws, of course, made no provision for trials by jury except on appeal to the county courts, and yet they were constantly acquiesced in and not considered as being repugnant to the bill of rights.

In several of our sister States where the right of trial by jury is guarded by constitutional enactment, it has been decided that laws passed subsequent to the adoption of the constitution, giving increased jurisdiction to justices of the peace, where there was no provision for a trial by jury except upon appeal,, are not unconstitutional. Morford vs. Barnes, 8 Yerger Rep., 444. Beers vs. Beers, 4 Conn. Rep., 535. McDonald vs. Schell, 6 Seargt. & Rawle, 240.

In the Connecticut bill of rights the language is, “The right of trial by jury shall remain inviolate.” And this provision was held not to have been violated by an act extending the jurisdiction of magistrates, before whom no trial by jury could be had but where an appeal was given, although an appeal bond was required. In delivering the opinion of the court, C. J. Hosmer says, “I am satisfied that the liberty of appeal in the case under discussion preserves the right of trial by jury inviolate, within the words and fair intendment of the constitution; and that no such unreasonable hardship is put on the appellant by the bond required for the prosecution of the appeal as to justify the assertion, that the right of trial by jury is in any manner impaired.”

In the case cited from Pennsylvania, the question was, whether a provision requiring payment of costs before an appeal could be taken was a violation of the constitution of the State ? The plaintiff in error contended it was, because the costs might amount to such a sum as a poor man could not pay, and then he would be deprived of a trial by jury. The court refused to hear counsel for the defendant in error and decided the case in his favor, declaring the act requiring costs to be paid was not unconstitutional.

These cases fully establish the principle, that where a law secures the trial by jury upon an appeal, it is no violation of a constitutional provision for guarding that right, although such law may provide for a primary trial without the intervention of a jury. This is upon the ground that the party, if he thinks proper, can have his case decided by a jury before it is finally settled.

It has been said these decisions can have no proper application to the present subject, because they relate merely to the private right of a citizen, whilst the provision of the constitution now under discussion is a restriction upon the exercise of public authority. But if it be so, it is a restriction for the protection’ of private property, and we do not perceive any real difference in principle between the two subjects so far as the rules of construction may be concerned. In truth, the first is a restraint upon legislative authority for the preservation of the right of each individual to a jury trial. The other prohibits the takingóf private property for public use without compensation first paid or tendered, after having been ascertained in one of the modes prescribed.

The act of 1838 gives authority to the Mayor and City Council of Baltimore “to provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley within the bbunds of said city, which, in their opinion, the public welfare or convenience may require; to provide for ascertaining whether any/ and what amount in value of damage will be caused thereby, and what amount of benefit will thereby accrue to the owner or possessor of any ground or improvements within or adjacent to said city, for which such owner or possessor ought to be' compensated or ought to pay a compensation.” It also authorizes them “to provide for granting appeals to Baltimore City Court from the decisions of any commissioners, or other persons appointed in virtue of any ordinance, to ascertain the damage which will be caused or the benefit which will accrue fo the owners or possessors of ground or improvements, by locating, opening, extending, widening, straightening or closing up, in whole of in part, any street, square, lane or alley Within said city, and for securing to every such owner and possessor the right, on application within' a reasonable time, to have decided by a jury trial whether any damage has been caused or any benefit has accrued to them, and to what amount.”

Under this act the Mayor and City Council passed the ordinance of 1850, No. 17, providing for the annual appointment of three commissioners for opening streets in the city. By the ninth section of which the right of appeal is given, providing for a trial by jury whenever any person shall be dissatisfied with the assessment of damages or benefits which shall be made by the board of commissioners.

The ordinance of 1853, No. 58, authorizing the opening of the street in controversy, and under which the proceedings complained of took place, was passed with express reference to the provisions of the act of 1838, and the ordinance of 1850. These proceedings are not, in our opinion, illegal and void under the present constitution.

The doctrine established by the practice in Maryland, and by the decisions in other States, which have been referred to, in regard to the highly valued privilege of trial by jury, we think will fully justify us in saying there is nothing in our present constitution which prohibits the Legislature from passing a law authorizing private property to be taken for public purposes, if provision is made for compensation first to be paid or tendered to the owner, the ascertainment of which is to be made by contract with him, or by the assessment of commissioners, giving to the owner the right to appeal from their decision, and securing, to him a trial by jury before the appellate tribunal, provided the appeal be taken within some specified reasonable time. And, in our opinion, if the owner should not appeal within the time prescribed, and the compensation assessed should be paid or tendered, the property might then be taken for public use. Under such circumstances the neglect or refusal to appeal would very properly be considered as a waiver or abandonment of the right to have the damages awarded by a jury, and as an agreement, on the part of the owner to accept the compensation proposed by the public, by means of the assessment. If this is a proper construction of the constitution in reference to a law which may now be passed, then, so far as the provisions of the act of 1838, and the ordinance of 1850, are not inconsistent with the power of the Legislature in reference to a future law, they are not unconstitutional and void; for the 3rd article of the declaration of rights continues in operation all acts and parts of acts of Assembly in force on the first Monday of November 1850, except such as have since expired, or were altered by the constitution, or have been changed or repealed by subsequent legislation.

Under the proceedings for opening the proposed street, compensation to the appellant has been assessed by commissioners. We have seen that the act of 1838, and the ordinance of 1850, gave him a right to appeal from the decision of the commissioners, and to have his compensation awarded by a jury, if he had desired to do so. This he declined doing, and by waiving that right he has virtually agreed to take the proposed compensation. His failure to appeal is not the only evidence of an agreement to accept the damages assessed, for the appellant has received, voluntarily, a large portion of the amount allowed him, by applying the same in discharge of the benefits assessed upon his property. We have said voluntarily received, although it has been insisted that he applied a portion of the damages in payment of benefits, not voluntarily, but by compulsion, for the purpose of saving his property from being sold. If, as it is contended, because the proceedings were illegal and void, the appellant had a right to enjoin them, most undoubtedly he had an equal right, before his application of the damages in discharge of ihe benefits, to have prevented, by injunction, the sale of his property for the payment of benefits. The same illegality which would authorize the interposition of the strong arm of a court of equity to stop the opening of the street, would surely justify the exercise of the same power to prevent the city authorities from compelling payment for benefits assessed on account of the supposed increased value of property, by the opening of the street. If the proceedings were illegal, no sale could have been made under them for benefits, if proper steps had been taken to prevent it, and a payment under such circumstances, would be voluntary; especially so when, as in this case, no advertisement or notice of such a sale had been published or given. And if the proceedings were not illegal, but valid, it is a matter of no importance whether the payment was voluntary or not.

Prohibition against taking private property until payment ,or tender of compensation is first made, and the right to have ,the amount of compensation settled by a jury or by agree? ment, are the important rights designed to be secured to the owners of property .by the present constitution. And although the proposed street has been surveyed, the survey reported, pnd the damages and benefits assessed, yet the appellant’s land has not been taken, in the legal sense of that word. Bonaparte vs. The Camden & Amboy Railroad Co., 1 Baldwin's C. C. Rep., 226. The constitutional prohibition against taking private property for public use, until compensation is first paid or tendered, means taking the property from the owner, and actually applying it to the use of the public. It does not mean the preliminary measures necessary in such cases. To hold that .compensation must be paid or tendered, before a survey should be made, or other preparatory steps taken, would be a construction of the constitution not required by its language, or necessary for the protection of private rights. It is quite a sufficient protection, if the owner is secured in the use and enjoyment of his property until the damages he may sustain are constitutionally ascertained, and paid or ten? dered. And until then, we think, a street cannot be opened or used, but an entry to grade, or to prepare the gropnd for that purpose, would b.e illegal; and the persons sp entering would be responsible, jn damages, to the owner of the property.

So far as .the proceedings on the part of the appellees have gone, we do not perceive such illegality in them as will sustain the injunction, therefore the prder dissolving it will be pijirmed, and the bill dismissed with costs to the appellees.

Order affirmed and hill dismissed.