Norris v. City of Baltimore

• Decision Date: 14 June 1876
• Citation: Norris v. City of Baltimore, 44 Md. 598 (Md. 1876)
• Parties: WILLIAM HENRY NORRIS and others v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

44 Md. 598

WILLIAM HENRY NORRIS and others v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

June 14, 1876

APPEAL from the Baltimore City Court.

The appeal in this case was taken from an order of the Court below, of the 26th of February, 1876, dismissing the appellants' petition for a mandamus. The facts of the case are sufficiently disclosed in the opinion of this Court.

The cause was argued before BARTOL, C.J., MILLER and ROBINSON J., and the decision was participated in by BRENT and ALVEY J.

Robert D. Morrison and H. Clay Dallam, for the appellants.

In most cases the question arises as to when the property is "taken." Most of the judicial decisions heretofore have held that the property is not ""taken" until it is actually used for the purpose for which it is condemned. That until then the title remains in the owners. But the Supreme Court of the United States, in Pumpelley vs. Green Bay Co., 13 Wall., 177, seems to have become dissatisfied with the technical and narrow principle which they originally laid down in Balto & Susq. R. R Co. vs. Nesbitt, 10 How., 395. They therefore recognize that these Constitutional provisions are inserted to protect the individual against the community, and are to be favorably construed in behalf of owners. They therefore held that if the just rights of ownership are interfered with, then this result should impose the obligation of having taken the property on the party who effects this interference.

This was not a verdict in an ordinary action for indebtedness, in which cases they are not final and certain so as necessarily to bear interest. Baltimore City Pass. Railway Co. vs. Sewell, 37 Md., 443.

If in such cases the law under which they had been instituted had provided that the verdicts should be "final and conclusive in every respect," it is conceived that this Court would have ruled differently in the cited case.

The grounds and principles in ordinary contentions as to whether interest is chargeable, have no application here, or at most only analogically. This is a distinct and peculiar contract, and is governed altogether by the law regulating sales of real estate, especially as affected by the constitutional clause that "just compensation" shall be made to the compulsory vendor. It is a sale of realty on compulsion. What then is a "just compensation" as fixed by the law of sales, when the sale is made for cash as of a given date and without compulsion? Certainly "just compensation" has not two significations, accordingly as the contractor is a mere fellow-citizen, or one coming with the powers and authority of eminent domain.

Cash value at a certain date implies ordinarily that the contract is to be completed near that date, and with interest to the vendor from that date. Such is the rule between ordinary vendors and vendees. 2 Dillon on Mun. Corp., secs. 453, 480, 487; Graff vs. M. & C. Council of Balt., 10 Md., 544.

The judgment being in fact given, and still subsisting unappealed from, it carries interest under the law giving interest on judgment, irrespective of the considerations for which it was given. 1 Dillon on Munic. Corp., sec. 414; Langdon vs. Town of Castleton, 30 Vt., 285, 296; City of Phila. vs. Dyer, 41 Penn., 470; Rhys vs. Dare Valley R. R., 19 Eq. Cases, 94, 95, (L. R.); Wagner vs. Cohen, 6 Gill, 100; Gwinn vs. Whittaker, 1 H. & J., 754; Montgomery vs. Murphy, 19 Md., 580-1; Kemp vs. Cook, 18 Md., 139; Henderson vs. Gibson, 19 Md., 238; Art. 29, sec. 15, of the Code.

The true rule of assessing damages has been laid down by this Court, in Moale vs. Mayor, &c. of Balt., 5 Md., 314.

Mandamus is the proper remedy, with or without the judgment. It is the only proper remedy against municipal corporations. When the claim against such corporation is for ordinary indebtedness, a judgment is necessary to give certainty as to the validity and amount of the claim--and in general the character of the claim against such corporations requires this preliminary sanction as to its justice and amount.

But what is the use of a preliminary judgment, when validity and certainty have been already determined by an inquisition or award which by law is to be "final and conclusive in every respect?" How is it "final and conclusive" if a judgment is necessary to make it certain, final and conclusive? Unless, therefore, the proceeding of condemnation under the Ordinance is a miserable fraud upon an unwilling vendor in so conducting it that his "just compensation" is left uncertain, not final, and inconclusive, the inquisition must be in his behalf, unless appealed from, all that is necessary as a ground for process to obtain the "just compensation" when his property has been taken. Chicago vs. Hasley, 25 Ill., 595; Monaghan vs. Phila., 28 Penn., 207; Von Hoffman vs. City of Quincy, 4 Wall., 535; 2 Dillon on Munic. Corp., sec. 685; High's Ex. Leg. Remedies, sec. 5; Commonwealth vs. Dennison, 24 How., 66; Gilman vs. Bassett, 33 Conn., 298.

It is not denied that, if the judgment subsists, mandamus is the proper remedy.

John V. L. Findlay, for the appellee.

Mandamus will not lie when the act sought to be compelled is the payment of money, if there is a specific and adequate civil remedy at law. Ev. Prac., 524,

To discriminate the principle upon which mandamus proceeds, the following cases are cited to show when the writ will be granted. High on Ex. Legal Remedies, sec. 365; 2 Dil. Munic. Corp., sec. 686, and cases cited in note. King vs. St. Catherine's Dock Co., 4 Barn. & Adol., 360; Wormwell vs. Hailstone, 6 Bing., 668-676.

The liability of the party against whom the writ is prayed, must first be liquidated, ascertained or determined, before the petitioner has the requisite legal status to invoke the aid of mandamus.

But the City is not liable for the interest claimed, 1st. Because it paid the amount assessed on the inquisition before it was required to do so by law.

2nd. Because, under the law and Ordinances of the City, and the Constitution of the State, the City could not take possession of the ground, until it made tender or paid the amount of damages assessed on the inquisition. Cons. 1867, Art. 3, sec. 40; Art. 43, City Code, 1869, sects. 7, 9, 14, pp. 831, 834, 837.

3rd. Because the City had the right to decline to take the property of appellants, at any time before such tender or payment. Graff vs. Mayor and City Council, 10 Md., 544, 551, 552, 553, 554; State Relation of McClellan vs. Graves, et al., 19 Md., 352.

4th. Because the title to the property, and the use and enjoyment thereof, remained in the appellants, until tender or payment by the City. Balt. and Susq. R. R. Co. vs. Nesbitt, 10 How., 395.

5th. Because there is no judgment quod recuperet in this case, and could be none, but only a valuation of the ground, to be taken or abandoned, as the City, acting for the public good, saw fit. Merrick, Adm'r of Warfield vs. Mayor, &c. of Baltimore, 43 Md., 219; Sewell vs. City Passenger R. W. Co., 37 Md., 443-456-457; Code Pub. Gen. Laws, Art. 29, sec. 15.

MILLER J., delivered the opinion of the Court.

On the 18th of March, 1872, an Ordinance was passed by the Mayor and City Council of Baltimore, providing for the condemnation and opening of Laurens street from Pennsylvania avenue to Madison avenue. The appellants were the owners of a vacant lot through which this improvement extended, but the whole of it was not needed for the bed of the proposed street. In this state of case the owners surrendered the whole lot to the Commissioners for opening streets, and claimed compensation for the whole of it, as they had a right to do under the existing Ordinances of the City. Baltimore City Code of 1869, Art. 43, sec. 7, page 831. The Commissioners then proceeded to value the lot and assess the damages, and from their assessment the owners took an appeal to the City Court, and upon trial, the jury, on the 22nd of January, 1874, found an inquisition assessing the damages for the lot at $22,567.50. From this no appeal was taken by either party to this Court. This amount was paid by the City to the owners on the 4th of December, 1874. At the time of this payment the owners claimed interest on this sum from the 22nd of January to the 4th of December, 1874, which the City refused to pay, and the questions now arising and to be decided are,

1st. Are the owners entitled to this interest or its equivalent by way of damages, and can they recover it from the City in any form of action?

2nd. If so entitled can they enforce its payment by mandamus, the process they have resorted to in this case?

It is insisted on the part of the appellants, that interest in such a case when payment is thus delayed, is a necessary ingredient of the "just compensation" provided by the Constitution for taking private property for public use.

We cannot, however, so regard it. It has long been the settled law of Maryland, that both private and municipal corporations, when authorized to exercise the power of eminent domain, have the right to renounce the inquisition and select a more eligible route, or to wholly abandon the improvement or enterprise, at any time before actual payment of the amount assessed, either by commissioners or jury, and until that time no title to the property condemned vests in the corporations. Balto. & Susq. R. R. Co., vs. Nesbitt, 10 How., 395; Graff vs. Mayor & C. C. of Balt., 10 Md., 544; State, ex rel. of McClellan vs. Graves, 19 Md., 351; and Merrick, Adm'r of Warfield vs. Mayor & C. C. of Balt., 43 Md., 219.

But when this sum is paid or tendered, the title vests, and the constitutional requirement is gratified. Nothing more than this sum can, in any case, be demanded by the property owner as and for the compensation...