Wade v. St. Mary's Industrial School

• Decision Date: 23 June 1875
• Citation: 43 Md. 178
• Parties: GEORGE W. WADE and others, Road Supervisors, and EDWARD RIDER and others, County Commissioners, and SAMUEL F. BUTLER, Sheriff of Baltimore County, v. SAINT MARY'S INDUSTRIAL SCHOOL, &c.
• Court: Maryland Court of Appeals

43 Md. 178

GEORGE W. WADE and others, Road Supervisors, and EDWARD RIDER and others, County Commissioners, and SAMUEL F. BUTLER, Sheriff of Baltimore County, v. SAINT MARY'S INDUSTRIAL SCHOOL, &c.

Court of Appeals of Maryland

June 23, 1875

APPEAL from the Circuit Court for Baltimore County, in Equity.

The case is stated in the opinion of the Court. The Court below only passed upon one of the many points argued before it, and decided that section 16 of the Act of 1870, ch. 309, was unconstitutional, because it did not make any provision for the swearing of the jury of condemnation; and while providing that each party should strike four from the list of those summoned as jurors, so that the number be reduced to twelve it did not authorize any person, in the event of each party striking the same four, to strike from the list the remaining four.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON and ALVEY, J.

Fielder C. Slingluff and S. Teackle Wallis for the appellants.

Bernard Carter, for the appellee.

BRENT J., delivered the opinion of the Court.

This appeal is from a decision of the Circuit Court for Baltimore County making perpetual a preliminary injunction, which had been granted at the filing of the bill, to restrain the appellants from proceeding to construct a road, designated as Wilkins' Avenue, through the lands of the appellee.

The proceedings to construct and open this avenue as a public highway had been commenced and were being carried on under the provisions of the Act of 1870, ch. 309, a public local law relating to roads in Baltimore County. Section 16 of that law requires the County Commissioners, when objections are filed, as was done in this case, to the action of the board of road supervisors, to issue their warrant to the sheriff, directing him to summon a jury to meet upon the premises to hear and determine the question of damages. This warrant had been issued, but before the time appointed for the meeting of a jury all further proceedings were restrained by the service of the injunction.

That the action of a jury is essential to complete the steps necessary to be taken towards opening the road in question through the lands of the appellee, is conceded.

It has not been attempted to sustain the proceedings of the appellants under any other law but the Act of 1870, above referred to, and it is very clear if the power and authority, claimed and attempted to be exercised by them in the steps taken, are not conferred by its provisions, they nowhere exist.

Upon examination we find that this law has been...