Back River Neck Turnpike Co. v. Homberg

Briscoe, J., delivered the opinion of the Court. The appellant is a body corporate duly incorporated, under the Public General Laws of the State, under the corporate name of The Back River Neck Turnpike Company of Baltimore County, for the purpose of making and constructing a turnpike road, in the Twelfth Election District of Baltimore County, not to exceed in length twelve miles. On the 10th day of April, 1902, the appellees residents of Baltimore County filed a petition in the Circuit Court for Baltimore County, under sec. 242 of Art. 23, of the Code of Public General Laws, as amended by ch. 607 of the Acts of 1894, alleging among other things that the Turnpike Company had failed to keep and maintain its road stoned or otherwise made of hard material to a depth of twelve inches or to a width of fifteen feet as required by its charter, but had negligently permitted the road to become full of holes and to become practically unfit for use and travel by the public, contrary to law. It was further alleged by the petition that travel on said turnpike, by reason of its condition, was rendered uncomfortable and dangerous, and that such conditions had been permitted to remain for a period of time, exceeding fifteen days before filing of the complaint, and the prayer of the petition, was for relief under the laws of the State. The record shows that an inquisition was had and on the 28th day of April, 1902, was returned to the Circuit Court of Baltimore County, as provided by the statute and from an order of the Court overruling a motion to quash and confirm *436 ing the inquisition of the jury, and directing that tolls shall not be charged, until the turnpike road shall be put in 'good order and repair and properly widened, this appeal has been taken. The sole question in the case relates to the validity and constitutionality of the Act of 1894, ch. 607, amending sec. 242 of Art. 23 of the Code. The appellant contends that this Act is unconstitutional and void, because it does not provide for any notice of the proceeding to the Turnpike Company and it provides for taking private property without due process of law in contravention of the State and Federal Constitutions. This Act was recently before the Court in the Turnpike Company v. Startzman, 86 Md. 365, a case involving proceedings under the Act, and while the points here made were not directly presented in that case, we said; the proceedings adopted and pursued in that case, could not be objected' to on constitutional grounds. Now it is quite difficult to see how and in what manner the proceedings authorized by the Act of 1894, ch. 607, can involve the question of taking private property without due process of law, as urged by the appellant, in this case. The appellant company was incorporated under Art. 23 of the Code, sec. 233, which provides for the formation of corporations for making turnpike roads, and according to the express terms of its charter, it was required to have at least fifteen feet in width of the bed of its turnpike road covered with broken stone or gravel or other hard or durable materials to the depth of at least twelve inches, unless the natural bed be hard. The Act of 1894, provides that it shall be the duty of the company, which has been incorporated to keep and maintain its road, in good order and repair, and of the proper width as required by its charter, and its failure so to do disr entitles it to charge tolls for the use of its road by the public. The Act does not provide for the taking of private property, in any way, but simply adopts a method or mode for compelling the corporation to comply with its charter obligations and the law under which it derives its powers. Appropriate regu *437 lation of the use of property is not taking property within the meaning of the constitutional prohibition. Railroad Co. v. Richmond, 96 U. S. 527; Mayor and City Council v. Baltzell, 75 Md. 98. (Decided January 22nd, 1903.) Upon the question of notice, we need only say that it appears from the record that notice in this case was given the company by service of a copy of the order of Court upon the president of the company. The company appeared at. the hearing before the sheriff and the jury of inquisition, and subsequently at the hearing before the Circuit Court. The statute does not provide in terms for notice to the company, but it contemplates a notice by providing for a hearing before the inquisition and by the Court, and this we think is amply sufficient under the statutes. The notice in such cases, is ■usually provided, in the order of Court directing the proceedings. The statute in this case having been declared valid and constitutional, the appeal will have to be dismissed. The Act allows no appeal to this Court and the Court below being in the exercise of a special jurisdiction conferred by statute, its judgment was final and conclusive. Jackson v. Bennett, 80 Md. 77; Smith v. Goldsborough, 80 Md. 63. Appeal dismissed with costs.