Wade v. Saint Mary's Industrial School

43 Md. 178, 1875 Md. LEXIS 100

• Court: Court of Appeals of Maryland
• Decided: June 23, 1875
• Status: Published

Opinion

Brent, J.,

delivered the opinion of the Court.

This appeal is from a decision of the Circuit Court for Baltimore County making perpetual a preliminary injunction, which had been granted at the filing of the bill, to restrain the appellants from proceeding to construct a road, designated as Wilkins’ Avenue, through the lands of the appellee.

The proceedings to construct and ojien this avenue as a public highway had been commenced and were being carried on under the provisions of the Act of 1870, ch. 309, a public local law relating to roads in Baltimore 'County. Section 16 of that law requires the County Commissioners, when objections are filed, as was done in this case, to the action of the board of road supervisors, to issue their warrant to the sheriff, directing him to summon a jury to meet upon the premises to hear and determine the question of damages. This warrant had been issued, but before the time appointed for the meeting of a jury all further proceedings were restrained by the service of the injunction.

That the action of a jury is essential to complete the steps necessáry to be taken towards opening the road in question through the lands of the appellee, is conceded.

It has not been attempted to sustain the proceedings of the appellants under any other law but the Act of 1870, above referred to, and it is very clear if the power and authority, claimed and attempted to be exercised by them in the steps taken, are not conferred by its provisions, they nowhere exist.

Upon examination we find that this law has been wholly’ repealed by the Act of 1874, ch. 274, and that the latter Act lias adopted and introduced a totally different mode, for the opening of roads in that county, from the one required and directed by the Act of 1870. In the repealing law there is no saving clause in favor of proceedings which were in fieri, and incomplete under the law of 1870, or any re-enactment by which proceedings can be supplemented, so as to render what had already been done complete and final. The consequence is, that in this state of the road laws of that county, the appellants are without authority of any existing law to proceed, in the manner complained of in the bill, to construct the road in question. It will not be denied that the appellee would be entitled to the aid of a Court of Equity in restraining the appellants, if the law of 1870, assuming it to be in force, did not provide a constitutional mode for condemning the land in question to public uses, and a fortiori is this the case, if the law, being repealed, has no longer any existence.

(Decided 23rd June, 1875.)

It is a settled doctrine, that Courts in deciding questions arising before them, will look to the law as it is at the time, and are not to be governed by what it may have been — unless proceedings under a prior existing law had been complete, or rights had become vested. This principle has been held to apply as well to cases before an Appellate Court, as to those that are pending in Courts of original jurisdiction. United States vs. Schr. Peggy, 1 Cranch, 110; Price, et al. vs. Nesbitt, et al., 29 Md., 264; Atwell vs. Grant, 11 Md., 104; State vs. Norwood, et al., 12 Md., 206; Keller vs. State, 12 Md., 326.

As in this view of the law, the decree of the Court below must be affirmed, it becomes unnecessary to examine the many other questions presented in the case.

Decree affirmed.