Riden v. Philadelphia, B. & W. R. Co.

• Decision Date: 14 December 1943
• Docket Number: 28.
• Citation: 35 A.2d 99,182 Md. 336
• Parties: RIDEN v. PHILADELPHIA, B. & W. R. CO.
• Court: Maryland Court of Appeals

35 A.2d 99

182 Md. 336

RIDEN v. PHILADELPHIA, B. & W. R. CO.

No. 28.

Court of Appeals of Maryland

December 14, 1943

Appeal from Circuit Court, Prince George's County; Ogle Marbury Chief Judge.

Suit by Frank A. Riden against the Philadelphia, Baltimore & Washington Railroad Company to restrain defendant from condemning a portion of plaintiff's land for a branch line. From a decree sustaining defendant's demurrer and dismissing the bill, plaintiff appeals.

Affirmed.

Marvin I. Anderson, of Annapolis, and J. Dudley Digges, of Upper Marlboro (Sasscer & Digges, of Upper Marlboro, on the brief) for appellant.

Charles T. LeViness, of Baltimore (Edward E. Hargest Jr., of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, ADAMS, and BAILEY, JJ.

DELAPLAINE Judge.

This suit for injunction was brought by Frank A. Riden, appellant, to restrain the Philadelphia, Baltimore & Washington Railroad Company from condemning a portion of his land in Prince George's County for a branch line to Bowie Race Track. The railroad company filed a demurrer to the bill of complaint. From a decree sustaining the demurrer and dismissing the bill, this appeal was taken.

It is a fundamental principle of constitutional law that the power of eminent domain is a prerogative of sovereignty and does not require the sanction of the Constitution for its existence in the State. Moale v. City of Baltimore, 5 Md. 314, 61 Am.Dec. 276; United States v. Jones, 109 U.S. 513, 3 S.Ct. 346, 350, 27 L.Ed. 1015; 29 C.J.S., Eminent Domain, § 2. The Constitution of the State of Maryland, art. 3, sec. 40, declares that the Legislature shall enact no law authorizing private property to be taken for public use, without just compensation as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation. This provision is not a grant of power, but a limitation upon the exercise of power. Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206. New Central Coal Co. v. George's Creek Coal & Iron Co.,

37 Md. 537, 559; Wilkinson v. Leland, 2 Pet. 627, 657, 7 L.Ed. 542, 553), we hold that this section of the Constitution unmistakably declares by implication that private property shall be taken only for public use and then only for just compensation, and no private property shall be taken for private use, either with or without compensation, except with the owner's consent. Moreover, the taking of a man's property for the private use of another, even with just compensation, violates art. 23 of the Maryland Declaration of Rights, which declares that no man ought to be deprived of his life, liberty or property but by the law of the land. Likewise, the taking of private property for private use by authority of the State is a violation of the due process clause of the Fourteenth Amendment of the Constitution of the United States. Fountain Park Co. v. Hensler, 199 Ind. 95, 155 N.E. 465, 50 A.L.R. 1518; O'Neill v. Leamer, 239 U.S. 244, 36 S.Ct. 54, 60 L.Ed. 249; 12 Am.Jur., Constitutional Law, § 569; 18 Am.Jur., Eminent Domain, § 4. It follows that where an undertaking for which private property is sought by condemnation is intended for private use, the property owner can invoke the aid of a court of equity to restrain the unlawful condemnation. Lynch v. Forbes, 161 Mass. 302, 37 N.E. 437, 42 Am.St.Rep. 402; Reed v. City of Seattle, 124 Wash. 185, 213 P. 923, 29 A.L.R. 446.

The inquiry in this case, therefore, is whether the contemplated branch line is for public use within the meaning of the Constitution. Of course, the Legislature cannot make a use public merely by declaring it so. Whether a particular use for which private property is sought is in fact public is ultimately a question for the determination of the court. City of Richmond v. Carneal, 129 Va. 388, 106 S.E. 403, 14 A.L.R. 1341; Paine v. Savage, 126 Me. 121, 136 A. 664, 51 A.L.R. 1194; Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 380, 37 L.Ed. 170. Since the framers of the State Constitutions have seldom, if ever, definitely defined the term 'public use,' the courts have striven to formulate a uniform definition, but without success. The Court of Appeals of New York recently said: 'Over many years and in a multitude of cases the courts have vainly attempted to define comprehensively the concept of a public use and to formulate a universal test. They have found here as elsewhere that to formulate anything ultimate, even though it were possible, would, in an inevitably changing world, be unwise if not futile.' New York City Housing Authority v. Muller, 270 N.Y. 333, 1 N.E.2d 153, 155, 105 A.L.R. 905, 910. In some States the courts have held that the expression 'public use' means public benefit, hence a use which has a tendency to develop the natural resources or increase the industrial power of a community, and thus contribute to the welfare and prosperity of the State. That definition, however, as Judge Pearce remarked in Arnsperger v. Crawford, 101 Md. 247, 253, 61 A. 413, 415, 70 L.R.A. 497, does not afford a definite criterion, as the Judges are 'left free to indulge their own views of public utility or advantage.' In fact, the determination of this question by the courts in different States of the Union has been influenced by considerations in respect to the resources, the fertility of the soil, relative importance of industries to the public welfare, and the long established customs of the people. In all these respects the conditions vary so much in the different States that different conclusions might well be expected. Hairston. v. Danville & Western Ry. Co., 208 U.S. 598, 28 S.Ct. 331, 52 L.Ed. 637, 13 Ann.Cas. 1008. Often, too, as Judge Cooley pointed out, there are cases where it would obviously be for the public benefit if properties owned by certain individuals were in the hands of others so that dilapidated buildings could be replaced by better ones, and unsightly places beautified, for such improvements would give an aspect of beauty, thrift and comfort to the community, and thereby invite settlement, increase the value of land, and gratify the public taste; but certainly such a circumstance alone would not warrant expropriation of the properties from the owners. 2 Cooley, Constitutional Limitations, 8th Ed., 1131. So, if the term 'public use' connotes public improvement, it is seriously questioned whether a sufficient limitation is set upon the power of eminent domain to guard the people from the possibility of an invasion of their constitutional right to acquire and possess property. Bloodgood v. Mohawk & Hudson R. Co., 18 Wend., N.Y., 9, 65, 34 Am.Dec. 313, 356.

In this State we have held that the words 'public use,' as written in our Constitution, mean use by the public. We hold this view for three reasons: (1) It is the primary and more commonly understood meaning of the words. (2) At the time of the adoption of the second Constitution of 1851, the first of our organic instruments to contain a limitation upon the power of eminent domain, as well as the third Constitution of 1864, and our present Constitution of 1867, there was no practice in Maryland showing a contemporaneous construction that the term 'public use' imported public benefit. (3) Our definition furnishes a more definite guide for the courts. Arnsperger v. Crawford, 101 Md. 247, 61 A. 413, 70 L.R.A. 497; Dobler v. Mayor and City Council of Baltimore, 151 Md. 154, 164, 134 A. 201; Niles, Maryland Constitutional Law, 192-201. It is our judgment that when the Legislature imposes a duty upon a corporation to serve the public without discrimination, and the State retains the power to regulate and control such service, and the corporation is liable to forfeit its franchise if it fails to perform its obligation to serve all the people alike, then the use is a public one. Pennsylvania Mutual Life Insurance Co. v. City of Philadelphia, 242 Pa. 47, 88 A. 904, 49 L.R.A.,N.S., 1062; Sholl v. German Coal Co., 118 Ill. 427, 10 N.E. 199, 59 Am.Rep. 379; Fountain Park Co. v. Hensler, 199 Ind. 95, 155 N.E. 465, 50 A.L.R. 1518.

The criticism was made in Nevada that our construction of the words 'public use' would enable the State to condemn property for business enterprises such as hotels and theaters. Dayton Mining Co. v. Seawell, 11 Nev. 394 411; 10 R.C.L., Eminent Domain, § 23; 1 Nichols, Eminent Domain, 2d Ed., § 40. 'But why,' demands one of the leading authorities on the subject in defense of the Maryland rule, 'may not the Legislature provide for acquiring by condemnation a site for a hotel or theater to which the public shall have the right to resort, and which shall be subject to public regulation in its management and charges? Is not this a mere question of expediency and public policy? And is not our opinion upon this question the outgrowth of the state of society in which we live and the usages and practices to which we are accustomed? In ancient times vast sums of money were expended in the construction and maintenance of public theaters, which were regarded as among the most important of public institutions. * * * Some discretion must be left to the Legislature. It is not to be presumed that they are wholly destitute of integrity or judgment. The people have left it for them to determine for what public uses private property may be condemned. If they abuse their trust, the responsibility is not upon the courts, nor the remedy in them.' 1 Lewis, Eminent Domain, 3d Ed., § 258. In sustaining the Maryland Housing Authorities Law, the Court of Appeals, speaking through Chief Judge Bond, said that if the statute had provided for housing accommodations for persons other than those of low income, its...