Baltimore & H. Turnpike Co. v. Northern Cent. Ry. Co.

• Decision Date: 28 February 1860
• Citation: 15 Md. 193
• Parties: BALTIMORE and HAVRE-DE-GRACE TURNPIKE COMPANY v. THE NORTHERN CENTRAL RAILWAY COMPANY.
• Court: Maryland Court of Appeals

15 Md. 193

BALTIMORE and HAVRE-DE-GRACE TURNPIKE COMPANY v. THE NORTHERN CENTRAL RAILWAY COMPANY.

Court of Appeals of Maryland.

February 28, 1860

A railroad company was proceeding, under its charter, to condemn part of a turnpike which the railroad was to cross; pending the proceedings, they were brought before the Superior court by a writ of certiorari, issued at the instance of the turnpike company, and the writ having been returned, was quashed. The charter of the railroad company provides for the confirmation of the inquisitions by the county courts, if no cause be shown to the contrary, and no appeal from the judgment of confirmation is provided for. Upon appeal from the order quashing the certiorari, HELD:

That the writ was properly quashed by the Superior court for want of jurisdiction over the subject-matter at that stage of the proceedings; the want of power in the railroad company to condemn the property, (if they had no such power,) could have been shown as cause against the confirmation of the inquisition.

Whether an appeal lies in cases of certiorari, may depend on the nature of the proceedings, and the object for which that remedy may have been invoked.

Where the court, on return of the writ of certiorari, is called upon to exercise a quasi appellate power in examining the proceedings of an inferior jurisdiction which has authority to act in the premises, the judgment is final and no appeal lies to this court.

But where the writ is sued out to test the power and jurisdiction of the inferior authority to act at all in the matter, the court to which the writ is returned acts in its ordinary common law capacity, and an appeal will lie.

Where the circuit court is clothed with a special jurisdiction, and no appeal to this court is provided for, the judgment is final, whether pronounced in the exercise of original jurisdiction, or in the nature of an appeal from some inferior authority.

Error to the Superior Court of Baltimore city.

It appears from the record in this case that by the Act of 1853 ch. 191, the appellee was authorised to make a lateral road from its main stem to tide water, and for that purpose to exercise all the powers given in its original charter, (Act of 1827, ch. 72,) and its supplements. In the exercise of these powers, the appellee finding it necessary, to cross the Turnpike of the appellant, had a warrant issued, under the provisions of the 15th section of the Act of 1827, ch. 72, for the condemnation of part of the appellant's turnpike in perpetuity, over which to construct such lateral road, and by virtue of this warrant, the sheriff summoned a jury for such condemnation. Thereupon, and before the warrant was fully executed, the appellant, a company duly incorporated by the Act of 1813, ch. 167, filed its petition in the court below for a certiorari to the sheriff, ordering him forthwith to return and certify this warrant and all his proceedings thereunder, to that court, to be read, adjudged and determined as to law and justice shall appertain. The writ was issued, and the sheriff having returned the same, and with it the warrant of condemnation, and what he had done thereunder, the appellee moved to quash the writ. This motion the court (LEE, J.) granted and remanded the warrant and proceedings to the sheriff to proceed thereunder, according to law. Thereupon, the appellant sued out the present writ of error to review this order of cassetur.

The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.

Geo. H. Williams and John Nelson, for the appellant:

The appellee, neither by its charter, nor any supplement, had any power given to it to condemn a franchise, and the jurisdiction, therefore, of the justice to issue the warrant, and of the sheriff to proceed under it, was usurped, and certiorari was the true remedy for the appellant. It is a proper remedy in any case in which an inferior authority is exceeding or usurping jurisdiction. The court in issuing it in such a case, is acting in its ordinary common law capacity, and an appeal from its action on the writ, lies in all such cases. The case of Crockett vs. Parke, 7 Gill, 238, was a case of a tenant holding over, and in which, under the Acts of Assembly in relation to that subject, an appeal lay to the county court, and its judgment on such appeal was final. But here the foundation of the writ is, that the inferior authority attempted to usurp jurisdiction --to do that which it had no authority to do--and is precisely similar to the case of Swann vs. Mayor & City Council of Cumberland, 8 Gill, 150, where it was held, that an appeal to this court would lie from the action of the court below on the certiorari. The motion to quash or dismiss this writ of error, cannot therefore prevail.

J. Mason Campbell for the appellee:

This was no case for a certiorari, and the court below was right in quashing it. The Act of 1827, ch. 72, sec. 15 (the charter of the appellee,) directs that an inquisition taken on a condemnation warrant shall be returned to the county court, where it shall be confirmed, if no cause is shown to the contrary. Full jurisdiction, therefore, is given to the county court to examine every posssible question, from the one that lies at the threshold of the proceeding--the power to issue the warrant--down to its close, and whether the same affect substance or form. There was no necessity, therefore, for a certiorari to accomplish what was provided for by means of the summary proceedings authorized by the court whose function it was to receive, examine, and, if right, approve and record the inquisition. The case of Swann vs. The Mayor & City Council...