Herzinger v. Mayor & City Council of Baltimore

• Decision Date: 01 October 1953
• Docket Number: No. 3,3
• Citation: 203 Md. 49,98 A.2d 87
• Parties: HERZINGER v. MAYOR & CITY COUNCIL OF BALTIMORE, etc. ,
• Court: Maryland Court of Appeals

Page 49

203 Md. 49

98 A.2d 87

HERZINGER v. MAYOR & CITY COUNCIL OF BALTIMORE, etc.

No. 3, Oct. Term, 1953.

Court of Appeals of Maryland.

July 2, 1953.

Charles F. Stein, Jr., and George Washington Williams, both of Baltimore, for appellant.

John R. Cicero, Asst. City Sol., Baltimore (Thomas N. Biddison, City Sol., Edwin Harlan, Depty. City Sol., and W. Thomas Gisriel, Asst. City Sol., Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from judgments rendered in the Superior Court of Baltimore City in three condemnation cases. A motion to dismiss the appeals was filed by the city on the ground that no bills of exceptions were signed by the trial court or transmitted to this court in the record. We heard argument on this motion in advance of the hearing of the appeal and on April 23, 1953, overruled the motion in a per curiam. We shall now state the reasons for that action.

Section 13, Article 33A, Code of 1951, provides for appeal to this court from a judgment in a condemnation case, 'within ten days from the date of said judgment, and all bills of exceptions desired by such appealing party shall be prepared and presented to the Court to be signed, on or before the expiration of twenty days from the date of said judgment, * * *' with authority in the court to extend the time for ten days, and that the record 'in any event shall be filed with the Clerk of the Court of Appeals of Maryland, within thirty days from the date of the entry of such appeal.' It is conceded that the appeal was entered within ten days from the entry of judgment and the record was transmitted within thirty days from the entry of appeal, but no bills of exceptions were prepared or submitted to the trial judge.

The city relies strongly upon the case of State Roads Commission v. Lassiter, 196 Md. 552, 77 A.2d 16, in which we held that the special statutory provisions as to time of appeal and for transmission of the record in condemnation proceedings were not repealed by Rule 2 of this court, which fixed the time for appeal and transmission of the record in actions at law and in equity at thirty and sixty days, respectively. We recognized that we had the power, under Sections 18 or 18A, Article IV of the Maryland Constitution, to modify or repeal statutory provisions as to time of appeal and for transmission of the record, but pointed out that repeals by implication are never favored, particularly in a field where authority to deal with the subject matter is shared with the legislature.

We think the case is distinguishable. Rule 17 of this court, first adopted in 1945, abolished the necessity for bills of exceptions by providing that 'Formal exceptions to rulings or orders of the court are uncessary'. Rule 18 also provided for designation by the appellant of the portions of the record to be transmitted on appeal, and provided that 'It is not necessary for the record on appeal to be approved by the lower Court or judge thereof, * * *.' Rule 18 has now been modified by the new Rule 10, adopted June 1, 1953, to permit appeal on original papers, but Sec. 4 of Rule 10 repeats the language quoted. Thus, the whole practice relating to bills of exceptions has been altered at its source. Section 4 of Article 33A of the Code of 1951 provides that in condemnation cases, where the court is exercising a special statutory jurisdiction, 'all demurrers, motions and other proceedings therein, except as otherwise herein provided, shall be disposed of in accordance with the rules and practice in said Court now governing in the trial of other civil cases at law.' In the light of this conformity provision, we think the necessity for bills of exceptions in condemnation cases, upon which the twenty-day limitation in Section 13 was predicated, no longer exists.

The appellant contends that the court erred in overruling his demurrer, and sustaining exceptions to his demand for particulars and exceptions to his interrogatories. The petition alleged briefly that the city was 'duly authorized by Ordinance of the Mayor and City Council, No. 1374, approved July 12, 1950, to acquire the property hereinafter described for Public Redevelopment Purposes.' It alleged that for this purpose it was necessary to acquire the properties described, and it was unable to agree with the owners upon a price. It prayed that the property be condemned in accordance with the requirements of law and the procedure prescribed by Article 33 A of the Code. The demurrer was on the grounds that the ordinance referred to in the petition did not refer to 'the authority, if any, upon which it is based'; that if based on Ordinance No. 718, approved June 2, 1949, the formulae set out therein for the exercise of delegated powers are so vague and indefinite that any taking thereunder would be in violation of the due process and other clauses of the federal and State constitutions; and that to the extent that the taking is for a private purpose, it violates the fourteenth amendment.

We think the demurrer was properly overruled. The ordinance referred to in the petition accurately described the area wherein the appellant's properties were located, saving and excepting out of the area certain portions not in question, and declared that 'it is necessary to acquire by purchase or by condemnation, for redevelopment purposes, the pieces or parcels of land with the improvements thereon * * *', including the appellant's properties. The petition complied with the statutory requirements set out in Sec. 1, Article 33A of the Code. We are aware of no rule of pleading that requires the city, in acting in reliance upon an ordinance, to justify the validity of the ordinance. In Mayor and City Council of Baltimore v. Ulman, 79 Md. 469, 484, 30 A. 43, 46, it was said that even 'a misrecital in an ordinance of the source of the power of the municipality could not affect its validity, if in point of fact the power to enact it existed.' The demurrer, of course, admits the facts well pleaded, of which the enactment of the ordinance in due course is one. It is entitled, at least, to presumptive validity at this stage of the pleadings, Again, as a matter of pleading, the city was not bound to allege the chain of legislative or constitutional authority in which Ordinance 1374 was the last link. The validity of Ordinance 718, setting up the Redevelopment Commission, was not reached by the demurrer. Nor could the question of private taking be raised on demurrer, in the face of the allegation of the petition that the city was duly authorized by the Ordinance to acquire the property for public redevelopment purposes, which is, presumptively at least, a proper one.

It may be noted that there was no demand for a bill of particulars until after the demurrer had been overruled, so that in considering the demurrer the particulars were not before the court. This fact, however, would not bar the demand for particulars, before pleas were filed, in order to restrict the plaintiff's proof at the trial and enable the defendant to frame his defense. Markoff v. Kreiner, 180 Md. 150, 23 A.2d 19. In response to the demand, the city stated that it was relying upon Article XIB of the Maryland Constitution, Section 6, Subsections (2) and (14A) of the City Charter, Article 33A of the Code, and Ordinances Nos. 1374, 718 and 860. It declined to give further particulars, and the appellant excepted. We find no error in the court's action in overruling the exceptions. We think the city was entitled to stand upon the regularity of the enactments, as a matter of pleading.

The appellant then filed an answer admitting the allegations of the petition as to both authority and necessity, but alleging that the 'value, price or amount offered' constituted an illegal and unreasonable taking, and that 'it does not appear from said Petition that the conditions precedent and other requirements of the alleged Ordinance and Law have been complied with,' and that the taking 'for the purpose alleged in the Petition and the reasons set forth in Section 4(a) * * * of Ordinance 718, * * * would be in violation of the Fourteenth Amendment to the Constitution of the United States, * * *.' At the trial the court permitted him to amend his answer so as to deny the authority and necessity. The appellant complains that the court refused to require the city to answer certain interrogatories after the answer was filed but before its amendment.

It may be noted that the answer, as originally filed and at the time of the court's ruling, did not raise the issue that the City Council's action in adopting the ordinances was arbitrary, unreasonable or beyond its constitutional power. The admissions of authority and necessity, and the challenge only to the allegations in the petition, would seem to indicate that the appellant was questioning the legal sufficiency of the allegations and not seeking to raise issues of fact. The interrogatories were addressed to the methods pursued by the Redevelopment Commission, rather than to ultimate questions of fact. We do not suggest that under other circumstances, or where the issue is properly raised, interrogatories are not a proper method of ascertaining the findings of a city agency upon which legislative action is taken. The discovery contemplated by our rules is designed to permit inquiry into the facts underlying an opponent's case as well as to bolster one's own. Barnes v. Lednum, Md., 79 A.2d 520, 524. We find no abuse of discretion in the court's action in sustaining exceptions to the demand for interrogatories, under the pleadings in the instant case.

When the case came to trial, the city stood on the constitutional and statutory provisions and the ordinances enacted pursuant thereto as making out a prima facie case. The constitutional power to condemn for redevelopment purposes is derived from Article XIB of the ...