96 A. 458 (Md. 1915), 14, Patterson v. City of Baltimore

Docket Nº:14.
Citation:96 A. 458, 127 Md. 233
Opinion Judge:PATTISON, J.
Party Name:PATTERSON et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
Attorney: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.
Case Date:December 16, 1915
Court:Court of Appeals of Maryland
 
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Page 458

96 A. 458 (Md. 1915)

127 Md. 233

PATTERSON et al.

v.

MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 14.

Court of Appeals of Maryland

December 16, 1915

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.

PATTISON, J.

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

Page 459

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...

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