City of Baltimore v. Concord Baptist Church, Inc.

• Citation: 262 A.2d 755,257 Md. 132
• Decision Date: 03 March 1970
• Docket Number: No. 235,235
• Parties: Mayor and CITY Council OF BALTIMORE et al. v. The CONCORD BAPTIST CHURCH, INCORPORATED et al.
• Court: Court of Appeals of Maryland

Page 132

257 Md. 132

262 A.2d 755

Mayor and CITY Council OF BALTIMORE et al. v. The CONCORD BAPTIST CHURCH, INCORPORATED et al.

No. 235.

Court of Appeals of Maryland.

March 3, 1970.

George L. Russell, Jr., City Sol., and Howard E. Wallin, Asst. City Sol. (Ambrose T. Hartman, Deputy City Solicitor, Baltimore, on the brief), for appellants.

Charles C. W. Atwater, Baltimore (Mylander & Atwater, David A. Carney, Henry Glick, Baltimore, on the brief), for The New Union Baptist Church, Inc. of Baltimore.

George F. Flentje, Jr., Baltimore, on the brief, for The Maryland Synod of the Lutheran Church in America.

Robert L. Sullivan, Jr., and Jan K. Guben, Baltimore, on the brief for The Calvary Baptist Church of Baltimore.

E. Stephen Derby, Baltimore (William L. Marbury, Baltimore, on the brief), for The Convention of the Protestant Episcopal Church of the Diocese of Maryland.

Charles J. Josey, Baltimore, for The Concord Baptist Church, Inc.

Submitted on brief by Francis X. Gallagher and Joseph G. Finnerty, Jr., Baltimore, for Lawrence Cardinal Shehan, Roman Catholic Archbishop of Baltimore.

Before HAMMOND, C. J., and BARNES, FINAN, SINGLEY and DIGGES, JJ.

SINGLEY, Judge.

Aware of the unique difficulties inherent in the condemnation of church structures, ¹ the General Assembly enacted § 9A 1(b) of Chapter 804 of the Laws of 1945. ² The provision survives, after a substantial modification made by Chapter 52 of the Laws of 1963 as Maryland Code (1957, 1967 Repl. Vol.) Art. 33A § 5(d) (the Act):

'Churches-The damages to be awarded for the taking of a structure held in fee simple, or under a lease renewable forever, by or for the benefit of a religious body and regularly used by such religious body as a church or place of religious worship, shall be the reasonable cost as of the valuation date, of erecting a new structure of substantially the same size and of comparable character and quality of construction as the acquired structure at some other suitable and comparable location within the State of Maryland to be provided by such religious body. Such damages shall be in addition to the damages to be awarded for the land on which the condemned structure is located.'

This case challenges the constitutionality of the Act.

In 1967, the Mayor and City Council of Baltimore (the City), faced with the necessity of acquiring two church properties for the construction of Interstate Route 70 N, instituted two condemnation proceedings in the Superior Court of Baltimore City: one against The Concord Baptist Church, Inc. (Concord) for the taking of its church property at 901-907 West Franklin Street and another against The New Union Baptist Church, Inc. (Union) for the taking of its church at 413-415 North Schroeder Street.

Filed with the petitions of condemnation in each case was a stipulation in which the parties agreed upon the fair market value of the property being taken ($115,000 in Concord's case; $50,000, in Union's) and upon the amount of damages which they arrived at under the Act ($159,650 in Concord's case; $125,000, in Union's). The City deposited in court in each case the smaller of the two amounts, which the churches, under the stipulation, were permitted to withdraw. The stipulation further provided that the constitutionality of the Act would be submitted for judicial determination, and that should the Act be found invalid, the churches' recovery would be respectively limited to fair market value. In the event that the Act were upheld, the parties agreed that the City would pay to each church the difference between fair market value and the amount of damages which the parties arrived at under the Act.

The City then moved for the consolidation of the Concord and Union cases and for trial of the legal issue of constitutionality. This produced a bumper crop of pleadings upon which we need touch only lightly. The Convention of the Protestant Episcopal Church of the Diocese of Maryland; Lawrence Cardinal Shehan, Roman Catholic Archbishop of Baltimore, and the Maryland Synod of the Lutheran Church in America (the Intervenors) were permitted to intervene and were appellees before us. The case was tried in February 1968, and was held sub curia.

About a month after the hearing, the City instituted proceedings against Calvary Baptist Church (Calvary) for the condemnation of the church property at 556-560 West Biddle Street. The parties entered into a stipulation similar to that used in the Concord and Union cases, except that there was no agreement as to the amount of damages which would be arrived at should the Act be upheld. On the City's motion, the Calvary case was consolidated with the Concord and Union cases.

At this stage of the matter, the City, Charles L. Benton, individually and as the City's Director of Finance, and Hyman A. Pressman, individually and as the City's Comptroller brought a declaratory judgment proceeding against Concord, Union, Calvary and the Intervenors, in which they sought to have the Act declared unconstitutional, and later moved to have the declaratory judgment action consolidated with the condemnation cases. When an order staying the declaratory judgment case was signed, but never entered, Messrs. Benton and Pressman moved in their official capacities to intervene in the condemnation cases.

On 21 May 1969, the court below entered an order rescinding the stay of the declaratory judgment action; consolidating the declaratory proceeding with the condemnation cases; permitting Mr. Benton and Mr. Pressman to intervene in the condemnation cases; denying Concord's motion to dismiss which had averred that the City lacked the standing to raise the issue of constitutionality; and finally, holding the Act to be constitutional and the churches to be entitled to damages determined (in Calvary's case, to be determined) in accordance with the Act.

The City and Messrs. Benton and Pressman took and appeal, urging that the Act should have been declared unconstitutional because it imposes an unreasonable limitation on the State's right of eminent domain and violates the Fourteenth Amendment to the Constitution as well as Articles 19 and 23 of Maryland's Declaration of Rights and the Establishment Clause of the First Amendment.

Concord, Union and the Intervenors have cross appealed, assigning as error the lower court's failure to grant Concord's motion to dismiss for want of standing, in which those appellees had joined.

(i) Standing

The lower court found that Concord, Union and Calvary, by entering into the stipulations, had, in effect, submitted the constitutional issue for decision. Entirely apart from this, however, Messrs. Benton and Pressman had sought declaratory relief and had later intervened in their individual and official capacities, as the City officials charged with the duty of acquiring property and paying for it. Theirs was the dilemma faced by public officials 'either in refusing to act under a statute (they) believe to be unconstitutional, or in carrying it out and subsequently finding it to be unconstitutional,' recognized in Pressman v. State Tax Comm., 204 Md. 78, 102 A.2d 821 (1954) and in Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). See also, Borchard, Declaratory Judgments (2d Ed. 1941) at 771. Additionally, where the issues presented are of great public interest and concern, the interest necessary to sustain standing need only be slight. Horace Mann League, etc. v. Board of Public Works, 242 Md. 645, 653, 220 A.2d 51, cert. den. 385 U.S. 97, 87 S.Ct. 317, 17 L.Ed.2d 195 (1966); Baltimore Retail Liquor Package Stores Ass'n v. Board of License Com'rs, 171 Md. 426, 189 A. 209, 109 A.L.R. 1253 (1937); see also Hammond v. Lancaster, 194 Md. 462, 71 A.2d 474, 483 (1950).

In holding that the individual appellants had standing, we are not overlooking the principles that the City, as a creature of the State, possesses no power which it may invoke against the State, even on constitutional grounds, Duvall v. Lacy, 195 Md. 138, 73 A.2d 26 (1950); Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933); United States v. Railroad Co., 84 U.S. (17 Wall.) 322, 21 L.Ed. 597 (1873), but compare Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), and may have even less right to challenge the constitutionality of a statute under which it is proceeding. Creative Country Day School v. Montgomery County Bd. of Appeals, 242 Md. 552, 568, 219 A.2d 789 (1966). Nor are we unmindful of the contention that a claim of unconstitutional discrimination may be asserted only by a person discriminated against. Simpson v. County Bd. of Appeals for Montgomery County, 218 Md. 222, 146 A.2d 37 (1958).

We conclude that there is no reason why Concord's motion to dismiss should have been granted.

(ii) The Constitutional Issue

If the Act were to be interpreted as the City and the lower court construed it, i. e., as requiring that the damages awarded be in an amount equivalent to the cost of reproduction or replacement of the improvements to which is to be added the value of the land, and paid only for church structures and not for other service properties, it may well be that grave constitutional issues would be raised both under the First Amendment (establishment of religion) and the Fourteenth Amendment (equal protection) to the United States Constitution and Articles 19 and 23 of the Maryland Declaration of Rights. It is conceivable that in most cases, an amount which exceeded fair market value could be paid to a church which would be under no duty to replace the facility condemned. While it may be argued that a condemning authority may select certain property owners and pay them an amount in excess of fair market value, 4 Nichols, Eminent Domain § 12.1(3) (Rev. 3d Ed. 1962) at 32-33, such a classification, to be constitutionally permissible must be reasonable, ...