Patterson v. City of Baltimore
| Decision Date | 16 December 1915 |
| Docket Number | 14. |
| Citation | 96 A. 458,127 Md. 233 |
| Parties | PATTERSON et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; James P. Gorter, Judge.
Petition by Laura Patterson and another, and Laura Patterson as trustee, against the Mayor and City Council of Baltimore for compensation for the opening of a street. From the judgment petitioners appeal. Reversed and remanded.
Arthur W. Machen, Jr., and Ward B. Coe, both of Baltimore, for appellants.
George Arnold Frick, Asst. City Sol., of Baltimore (S. S. Field City Sol., of Baltimore, on the brief), for appellee.
We are called upon by this appeal to review the rulings of the Baltimore city court at the trial of the appeal taken by Laura Patterson and Sidney T. Dyer, and Laura Patterson trustee, appellants in this court, from the award of the commissioners for opening streets in the city of Baltimore by which damages were awarded and benefits were assessed to said appellants in the matter of the opening of Twenty-Fifth street from the east side Greenmount avenue to the west side of Harford avenue, under Ordinance No. 416 of the Mayor and City Council of Baltimore, approved December 9, 1909.
The first question presented by the record is whether the city was entitled to have the issues presented by the aforesaid appeal to the Baltimore city court tried by a jury. The petitioners, having waived their right to a trial by jury, asked that the issues be tried by the court, whereupon the city, through its solicitor, announced that it had not waived its right to a jury trial, and asked that a jury be impaneled to try the case. The court overruled the application of the petitioners, and, as directed by the court, a jury was impaneled, and the case tried by it. It is contended by the appellants that in these cases the right of trial by jury, under the Constitution and statutes of this state, is lodged only in the landowners, and that the city has no such right, either under the organic or statute law of the state.
The Constitution of Maryland (section 40, art. 3) provides that:
"The General Assembly [of Maryland] 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."
This section of the Constitution, in respect to the question here raised, has never been passed upon by this court, and, so far as we are able to discover, such question has never been presented for its consideration.
The counsel in the case have cited expressions of this court found in its previous opinions in support of their respective contentions, but such expressions, we think, fail to show any decided views upon the question, and we think it unnecessary to pass upon it at this time in deciding the questions presented by this appeal. The inhibition found in this clause of the Constitution does not prohibit the enactment by the Legislature of a law conferring such right of jury trial upon other, or all, parties to condemnation proceedings.
By the city charter (chapter 123 of the Acts of 1898) the commissioners for opening streets are charged with the duty of "opening, extending, widening, straightening or closing any street, lane, alley or part thereof situated in Baltimore city whenever the same shall be directed by ordinance to be done," and in so doing they are to assess benefits to those who are benefited thereby, within the meaning of the statute, and are to award damages to those whose lands are taken for such public use.
It is further provided by the charter (section 179) that:
"The mayor and city council of Baltimore or any person or persons, or corporations, who may be dissatisfied with the assessment of damages or benefits, as hereinbefore provided, may *** appeal therefrom by petition, in writing, to the Baltimore city court, praying the said court to review the same, *** and the said city court shall have full power to hear and fully examine the subject, and decide on the said appeal; *** and the persons appealing to the Baltimore city court, as aforesaid, shall be secured in the right of a jury trial, and the said court shall direct the sheriff of Baltimore city to summon twelve or more persons qualified to be jurors, and shall impanel any twelve disinterested persons, so summoned, or attending the court, to try any question of facts, and if necessary to view any property in the city, or adjacent thereto, to ascertain and decide on the amount of damage or benefits, under the direction of the court."
Prior to the act of 1898 the right of appeal to the city court from the action of the commissioners for opening streets was not given by statute to the mayor and city council, but was confined to those generally termed in such proceedings as the "landowners," or those to whom benefits are assessed or to whom damages are awarded, but by the present city charter (section 179 aforesaid) such right of appeal is also conferred upon the mayor and city council.
It is, however, contended by the petitioners that, although the right of appeal is lodged in the city, the right of a jury trial is not conferred upon it by the statute, even though the appeal be taken by the city. This contention is based upon the expression in the statute that "the persons appealing to the Baltimore city court, as aforesaid, shall be secured in the right of a jury trial"; it being contended by the petitioners that the mayor and city council, a municipal corporation, is not included in the term "persons," and therefore no right of jury trial is conferred upon it.
It is said in Lewis on Eminent Domain (3d Ed.) § 790, that, and by the Code of Public Civil Laws of this state (1912) art. 1, § 14, it is specially provide that the word "persons" shall include corporations unless such a construction of the statute would be unreasonable. To construe the word "persons" in the statute before us as including a municipal corporation, is not at all unreasonable, and it should therefore be so construed.
The further contention is made by the petitioners that the city has not the right of jury trial when the appeal is taken by the landowner, even though it be held that the city has such right when the case is in court upon its own appeal. This contention is also based upon the above-quoted language of the statute which is construed by the petitioners as giving the right of jury trial only to those taking the appeal. As we have said, the landowner or the city, or both, may, under the statute, appeal to the Baltimore city court from the award of the commissioners for opening streets when dissatisfied with such award, and it is difficult to understand just why or for what reason this right is lost to the city when it is brought into court on appeal by the adverse party.
In this case the petitioners appeal because they are dissatisfied with the award. Their object in...
To continue reading
Request your trial