Tidewater Portland Cement Co. v. State

• Decision Date: 06 December 1913
• Citation: 89 A. 327,122 Md. 96
• Parties: TIDEWATER PORTLAND CEMENT CO. v. STATE.
• Court: Maryland Court of Appeals

89 A. 327

122 Md. 96

TIDEWATER PORTLAND CEMENT CO. v. STATE.

Court of Appeals of Maryland

December 6, 1913

Appeal from Circuit Court, Carroll County; Jas. R. Brashears, Judge.

"To be officially reported."

The Tidewater Portland Cement Company was indicted for maintaining a nuisance. From an order refusing to transmit the record to some other court for trial, defendant appeals. Dismissed.

Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Jno. Milton Reifsnider, of Westminster, and William J O'Brien, Jr., of Baltimore, for appellant. Edward O Weant, State's Atty., of Westminster (Edgar Allan Poe Atty. Gen., on the brief), for the State.

PER CURIAM.

The court has reached the following conclusions in the above-entitled case: First. That an appeal does not lie before judgment from an order refusing to remove a case of this character. Second. That, if the appeal could be entertained before judgment, the court would not be justified in disturbing the action of the lower court by what appears in the record.

An opinion will be filed later giving the reasons of the court for its conclusions.

Appeal dismissed, the appellant to pay the costs.

PATTISON J.

The appellant company was, on the 16th day of May, 1913, indicted in the circuit court for Carroll county, charged with maintaining a nuisance in the operation of its plant located in the town of Union Bridge, Carroll county, Md.

On June 4, 1913, a suggestion was filed by the defendant company, under the oath of its vice president and manager, that it could not have a fair and impartial trial in the circuit court for Carroll county, and asked that the record be transmitted to some other court having jurisdiction in such case for trial. With the suggestion were filed excerpts of articles published in certain newspapers of Carroll county commenting upon the conditions complained of in the indictment, in terms condemnatory of the defendant company. Affidavits of a number of citizens of the county were also filed, and the oral testimony of others was taken in open court, expressing their opinion that the appellant could not have a fair and impartial trial in the circuit court for Carroll county, owing to the feeling and prejudice existing against it, evidenced by the said newspaper excerpts and the expressions of citizens of the county relative to the existing conditions, caused, as it is alleged, by the improper management and operation of the company's plant. The court, after considering the aforesaid excerpts, affidavits, and testimony taken, refused to grant the order transmitting the record to some other court for trial, and this appeal was at once taken from that order.

We will first consider and determine whether this case is properly before us.

Section 8 of article 4 of the Constitution of this state, as it now stands, after the adoption by the people at the November election, 1875, of the amendment proposed by the Acts of 1874, c. 364, provides that: "In all suits or actions at law, issues from the orphans' court or from any court sitting in equity, and in all cases of presentments or indictments for offenses which are or may be punishable by death pending in any of the courts of law of this state having jurisdiction thereof, upon suggestion in writing under oath of either of the parties to said proceedings, that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court shall order and direct the record of proceedings in such suit or action, issue, presentment, or indictment, to be transmitted to some other court having jurisdiction in such case, for trial; but in all other cases of presentment or indictment pending in any of the courts of law in this state having jurisdiction thereof, in addition to the suggestion in writing of either of the parties to such presentment or indictment that such party cannot have a fair and impartial trial in the court in which the same may be pending, it shall be necessary for the party making such suggestion to make it satisfactorily appear to the court that such suggestion is true or that there is reasonable ground for the same."

In all cases of presentment or indictment for offenses which are or...