Fitzwater v. Youghiogheny Hydro-Electric Corp.

• Decision Date: 13 January 1926
• Docket Number: 69.
• Citation: 131 A. 776,149 Md. 461
• Parties: FITZWATER ET AL. v. YOUGHIOGHENY HYDRO-ELECTRIC CORPORATION.
• Court: Maryland Court of Appeals

131 A. 776

149 Md. 461

FITZWATER ET AL. v. YOUGHIOGHENY HYDRO-ELECTRIC CORPORATION.

No. 69.

Court of Appeals of Maryland

January 13, 1926

Appeal from Circuit Court, Garrett County; Albert A. Doub, Judge.

"To be officially reported."

Proceeding by the Youghiogheny Hydro-Electric Corporation, on its application to the County Commissioners of Garrett County for an order to close a public road, in which George P. Fitzwater and others appeared as opponents. An order of the commissioners closing the road was affirmed by the circuit court, and from an order of that court overruling a motion of opponents to quash the proceedings, and a motion in arrest of judgment, opponents appeal. Order affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and WALSH, JJ.

Saul Praeger, of Cumberland (Asa T. Matthews and Playford A Naylor, both of Oakland, on the brief), for appellants.

Jesse N. Bowen, of Baltimore, and D. Lindley Sloan, of Cumberland (Fred A. Thayer, of Oakland, on the brief), for appellee.

BOND C.J.

The appellants contend that an order of the circuit court of Garrett county, closing two portions of a road in that county, under the provisions of article 25, § 142 et seq., of the Code of Public General Laws, is invalid because, in the original proceedings before the county commissioners, it was not made to appear that the persons who gave the public notice and filed the originating petition, were citizens of the county. Section 143 of article 25 provides that:

"Whenever any citizen of any county intends to petition the county commissioners for opening, altering or closing any road, he shall give thirty days' notice thereof in one or more of the newspapers published in the county."

And taking the effect of this to be that the right of petitioning is restricted to citizens of the county, it is contended that a showing of citizenship on the record is essential to the validity of an order closing a road, under the rule that all facts essential to the valid exercise of a special, limited jurisdiction must be made to appear on the face of the proceedings. Smith v. Goldsborough, 80 Md. 49, 59 30 A. 574; Cumberland Valley R. Co. v. Martin, 100 Md. 165, 166, 59 A. 714.

The Youghiogheny Hydro-Electric Corporation, incorporated under the laws of this state, is developing the water power of the Youghiogheny river and its tributaries in Garrett county, to generate electricity for public use; and as the impounded water would flood portions of several roads, including the one in question, notice was given by the corporation of intention to make application for the closing of all the roads to be flooded, and, in due course, a petition was prepared and filed with the county commissioners. The notice was signed "Youghiogheny Hydro-Electric Corporation, a Maryland corporation," and the petition was signed by 12 individuals and in the name of the corporation; but neither the notice nor the petition contained any statement of citizenship. Counter petitions were filed by the appellants, and after a hearing the county commissioners ordered the road closed as prayed, and executed an agreement with the Youghiogheny Corporation, which required the company to construct substitute ways. At the hearing, to meet an objection to the signature of the corporation. F. R. Corliss, an agent, added to the corporate signature on the petition: "By F. R. Corliss, Agent." On appeal to the circuit court, the appellants filed a motion to quash the proceedings, and, after a verdict of a jury for the closing of the road, filed a motion in arrest of judgment. The court overruled both motions and finally ordered the parts of the road in question closed. The appeal is grounded on error in the overruling of the motions. Both motions raise the one question of jurisdiction already stated.

The county commissioners attached to the record of their proceedings, and transmitted to the circuit court, the agreement executed by themselves and by the corporation, It recites the whole proceeding, and declares that, in consideration of the closing of the portions of the various roads, the corporation agrees with the county commissioners to construct the substitute ways as specified. The agreement and the order seem clearly to form one transaction, each essential to the other and inseparable from the other; and the agreement, in our opinion, was properly attached to the order, and formed a proper part of the record of the proceeding. And any facts shown in the agreement would be shown on the record of the proceeding. It recites that the corporation is formed under the laws of Maryland, and is engaged in the work of constructing the dam in Garrett county to impound water for development of electric energy for public use, that it has purchased several thousand acres of land for impounding the water, and that for the same purpose it is necessary to close specified portions of county roads. In Baltimore & York Turnpike Co. v. Crowther, 63 Md. 558, 572, 573, 1 A. 279, this court held it to be a general rule of law that the place of residence of a corporation is the place where its principal office is located, or where its principal operations are carried on. And, under that rule, the present corporation would, on the face of the record of the proceedings as they came from the county commissioners--to go no further now--appear to be a resident of the county where it gave its notice and filed its petition. The statute, however, refers to a petition, not by a "resident," but by a "citizen," of the county. The appellee assumes "resident" and "citizen" to be synonymous, within the meaning and purpose of the statute, and the appellants deny that they are so, and deny that a corporation can be included under the word "citizen."

The mere use of the word cannot be taken as determinative, because the word has more than one meaning. "The word 'citizen' has various meanings," said this court in Risewick v. Davis, 19 Md. 82, 93, "viz.: 'A native of a city; an inhabitant who enjoys the freedom and privileges of the city in which he resides; an inhabitant, a dweller in any city, town or place; a person, native or naturalized, who enjoys the privilege of exercising the elective franchise.' * * * In which of these senses the word was used in Acts 1795, c. 56 [the attachment law], does not appear from the cases above referred to. If the object of the law was, as some of the earlier cases indicate, an amelioration of the common-law process, or the protection of our own citizens from summary process, as well as to give them a remedy against debtors residing out of the process of the court, as others declare, the largest interpretation of the word would be most consonant to reason and justice; * * * hence 'citizen' would be synonymous with 'inhabitant or permanent resident' in a city or county, as all such are alike entitled to the most enlarged remedial process, and protection from summary proceedings, equally, with native or adopted citizens, enjoying the elective franchise, and the right of purchasing and holding real estate. This construction does not conflict with the provisions of Acts 1715, c. 40, but gives a cumulative remedy, adapted to the exigencies of trade and commerce, which would be otherwise much embarrassed by the delays of the law." It was therefore held that, in the restriction of the right of attachment to citizens of this state or of some other state, the word "citizen" included inhabitants or permanent residents.

And in Field v. Adreon, 7 Md. 209, 213, the court held that an unnaturalized Irishman, residing in Baltimore City, was a "citizen" within the meaning of a provision for attachments of the property of citizens absconding. "It certainly never could have been the intention of our Legislature," said the court, "to have made such an invidious distinction in favor of foreign citizens residing in our state, over our own resident citizens, as to exempt the former from being proceeded against as absconding debtors, while the latter were to be held subject to all the...