Arnsperger v. Crawford
| Decision Date | 20 June 1905 |
| Citation | 61 A. 413,101 Md. 247 |
| Parties | ARNSPERGER v. CRAWFORD et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Frederick County; John C. Motter and James B. Henderson, Judges.
Proceeding for the establishment of a private road by William A Arnsperger against Anna M. Crawford and others. Commissioners were appointed to lay out the road, locate it, and assess damages to defendants. The county commissioners, after hearing objections, confirmed the award, and by their order granted the road to petitioner, from which defendants appealed to the circuit court, where the order was reversed and the proceedings quashed, from which order petitioner prosecutes a further appeal. Dismissed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE SCHMUCKER, and JONES, JJ.
Hammond Urner and Milton G. Urner, for appellant.
Jacob Rohrback, for appellees.
The question sought to be raised by this appeal is the constitutionality of the private road law of Maryland. The proceedings were commenced by the filing of an application by the appellant to the county commissioners of Frederick county, under the provisions of article 25, §§ 100 to 121, of the Code of Public General Laws, for a private road to run from a tract of land belonging to him in said county, and wholly bounded by the lands of other private owners, through the lands of the appellees, to the public road from Waynesboro to Sabillasville. The commissioners appointed to lay out such road located the same and assessed the damages to the appellees, and the county commissioners, after consideration of objections urged by the appellees to the inquisition, ratified and confirmed the inquisition and award, and by their order granted said private road to the appellant. From that order an appeal was taken by the present appellees to the circuit court for Frederick county, under section 121 of article 25, which gives such appeal, and provides that the judgment in the case shall be final between the parties. Upon the trial of that appeal, the circuit court, upon the motion of the appellants therein, quashed the proceedings in the case, upon the ground that sections 100 to 117 of article 25 are in conflict with the Constitution of Maryland and void, and that the county commissioners therefore had no jurisdiction to grant a private road, and the present appeal is taken from that order.
It is now moved to dismiss this appeal, and this motion must prevail. It is well settled in this state that, where the circuit court sits as an appellate court under statutory authority, no appeal will lie to this court from the judgment of the circuit court, unless expressly given by statute. In Rayner v. State, 52 Md. 365, it was insisted that the statute under which Rayner was convicted of violating a law restricting the right of fishery in the Potomac river was unconstitutional and void, and that there was therefore no jurisdiction, either of the justice before whom the charge was first heard, or of the circuit court on appeal, to try and decide it. The court there said that, whatever might be thought of the constitutional objections to the statute, it did not follow that the right of appeal was not validly given, or that the circuit court was not in the exercise of valid jurisdiction in hearing and deciding the case, and pointed out that "if, instead of the appeal under the statute, the party had applied for the writ of certiorari upon the specific ground of the unconstitutionality of the statute, and the consequent want of power and jurisdiction of the magistrate to proceed under it, the circuit court would then have been in the exercise not of the special limited jurisdiction, but of its ordinary common-law jurisdiction and from its judgment in the premises a writ of error or an appeal could have been prosecuted to this court." In Judefind v. State, 78 Md. 510, 28 A. 405, 22 L.R.A. 721, a member of the sect of Adventists, whose creed requires them to observe the seventh day of the week as a day of rest, was convicted before a justice of the peace for a violation of the law prohibiting work on Sunday, and upon appeal to the circuit court the conviction was sustained, whereupon he brought a writ of error to this court to test the constitutionality of the Sunday law, and the writ of error was quashed for the reason given in Rayner v. State, supra. In Moores v. Bel-Air Water Co., 79 Md. 391, 29 A. 1033, certain water rights of the appellant were condemned under the provisions of sections 248 to 253 of article 23 of the Code of Public General Laws, and, the inquisition and award being ratified by the circuit court for Harford county, the case was brought to this court by appeal, and also on writ of error, to determine the constitutionality of the statute authorizing the condemnation. The Maryland cases were very carefully reviewed, and the court being of the opinion that the water company had the right of eminent domain, and that the circuit court had jurisdiction over the condemnation proceedings, its order could not be reviewed, and the appeal was dismissed and the writ of error quashed. To the same effect are the cases of Hopkins v. P.W. & B.R., 94 Md. 257, 51 A. 404, and N.Y. Mining Co. v. Midland Mining Co. (decided in this court June 8, 1904) 58 A. 217, in both of which it was sought to review the action of the circuit court upon condemnation proceedings, providing for no appeal from such action, because of alleged constitutional objections to the statutes authorizing the condemnation. In the last-mentioned case the court said, "The inquiry here is not whether the court rightly decided, but whether it had the right to decide what it did decide." In view of these repeated decisions, it is clear that this appeal must be dismissed.
If we were authorized to review the action of the circuit court in this case, we would affirm its order; and we deem it proper to state the reasons for our view, in order that there may be no diversity on confusion of ruling upon this question in the different judicial circuits of the state:
Section 40 of article 3 of the Constitution of Maryland provides "The General Assembly shall enact no law authorizing private property to be taken for public use, without just compensation, as agreed upon between parties, or awarded by a jury, being first paid or tendered, to the party entitled to such compensation;" and article 23 of the Declaration of Rights declares that "no man ought to be taken, or imprisoned, or disseised of his freehold liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." There is no prohibition in express terms against taking private property for private use to be found either in our Constitution or Declaration of Rights, nor can it be justly held that any is needed, although such a prohibition is contained in the Constitutions of Alabama, Colorado, Georgia, Louisiana, and Missouri. The implied prohibition contained in section 40 of article 3 is too clear to be questioned. As was said in Bloodgood v. Mohawk R.R., 18 Wend. 9, 31 Am.Dec. 313, in construing similar language, "these words must be construed as equivalent to a constitutional declaration that private property, without the consent of the owner, shall be taken only for the public use, and then only upon just compensation." In Taylor v. Porter, 4 Hill, 147, 40 Am.Dec. 274, Judge Bronson, speaking for the Supreme Court of New York, preferred to rest the prohibition upon that section of the Constitution of New York which forbids that "any freeman should be disseised of his freehold, but by lawful judgment of his peers, or by the law of the land, and that no person should be deprived of life, liberty or property, without due process of law," and said that the words "law of the land" and "due process of law" could not and did not mean "a statute passed for the purpose of working the wrong." But whatever may be thought of the true ground upon which the conclusion should be placed, Judge Cooley says in his Const.Lim. (6th Ed.) 651, "It is conceded on all hands that the Legislature has no power in any case to take the property of one individual and pass it over to another, without reference to some use to which it is to be applied for the public benefit;" and Judge Alvey, in New Central Coal Co. v. Georges Creek Coal Co., 37 Md. 559, said, "This constitutional prohibition is but declaratory of the previously existing universal law, which forbids the arbitrary and compulsory appropriation of any man's property to the mere private use of another, even though compensation be tendered." It has never been anywhere held that this can be done, so that our only inquiry here is whether this particular use is a "public use," within the meaning of the Constitution. When this is determined, the question before us is solved; and all the authorities hold that whether a use is public or private is a question not for the Legislature, but for the judiciary. Lewis on Eminent Domain, § 158; New Central Coal Co. v. Georges Creek Coal Co., 37 Md. 560. The Legislature cannot make a particular use, either public or private, merely by so declaring it. If it could do so, "the constitutional restraint would be utterly nugatory," as was said in the case last cited. The Constitution does not define the term "public use," but leaves us to resort to the natural meaning of the words; and we think this meaning is clearly and correctly expressed by Mr. Lewis in section 165, in which he says, " 'Public use' means the same as 'use by the public,' " giving as his reasons for this conclusion the following: "That it accords with the primary and more commonly understood meaning of the...
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