President of the Baltimore & Fredericktown Turnpike Road v. Baltimore, Catonsville & Ellicott's Mills Passenger Railroad

Bryan, J., delivered the opinion of the Court. By the Act of 1894, chapter 102; the Legislature granted — 254 — to the Baltimore, Catonsville and Ellicott’s Mills Passenger Railroad Company the right to use electricity as a motive power on its railway between Baltimore City and Catonsville and on an extension of it thereafter to be made to Ellicott City. By the same Act this corporation was empowered to construct and operate double passenger railway tracks bn the turnpike of the President, Managers and Company of the Baltimore and Fredericktown Turnpike Road, with power to alter its grade, and'to change the location of the tracks which it already had on the turnpike. And the two corporations were authorized to agree upon the terms and conditions on which these rights should be exercised ; and in case they should fail to agree, the railroad company was empowered to acquire the necessary easement and estate by condemnation proceedings. It is well known and it is stated in the proceedings in this case that by virtue of a contract with the turnpike company a passenger horse railway had been maintained and operated' for many years on the bed of the turnpike between the city of Baltimore and Catonsville. It does not seem to be controverted that the property of the corporation which originally owned this horse railway was sold under a foreclosure proceeding, and that the present appellee (under a slight change of name), has been invested with all its rights, property and duties, and subjected to all its obligations. The appellee has prosecuted condemnation proceedings, and in due course the jury have found and assessed damages under their inquisition. Without entering minutely into details, it is sufficient to state that the appellant filed a bill in equity, in which it alleged that the above mentioned Act of Assembly is contrary to the Constitution of the United States, and it prayed that the appellee should be enjoined from proceeding under the inquisition and from prosecuting any proceedings' whatsoever by way of condemnation to acquire any easement or estate in the turnpike road. The Circuit Court sustained the right of condemnation and the appellant took its appeal. — 255 — The turnpike company was chartered by the Act of 1804, chapter 51, and under this Act it constructed its turnpike road, and has operated and maintained it from the time of its construction to the present day. There can be no doubt that the charter is a contract between the Legislature and the corporation, which is under the protection of the Constitution of the United States. And the same may be said of the contract made with the predecessor of the appellee in reference to the construction of the horse railroad. The Legislature has no power to amend, alter or impair any stipulation in either of these contracts. They must all be preserved inviolate in their original integrity. If the Act of Assembly infringes any right granted by the appellant’s charter, or releases any stipulation contained in the contract, it must to that extent be declared null and void. And it has been declared by this Court that there is no difference in principle between a law that in terms impairs the obligation of a contract, and one that produces the same effect in the construction and practical execution of it. Canal Company v. Railroad Company, 4 Gill & Johnson, 109. In the same case, at pages 144 and 145, it was said that a franchise, a corporate right to select and acquire land for the authorized purposes of the corporation, is property; “it is an incorporeal hereditament; not a legal title to the land itself; not a mere capacity or faculty to acquire and hold land, such as every individual possesses ; but, in addition to such capacity, it is a right or privilege, a portion of the eminent domain vested in the corporation to acquire the legal title to land, subjected by the grant to its will, and thus to convert the incorporeal into a corporeal hereditament ; and after the franchise to choose and condemn land for any particular public purpose that portion of the eminent domain granted and subsisting in one corporation, can not be bestowed upon another, to the prejudice of the former grant; nor can any other legally acquire any such right of way or title to the land over which the franchise extends, as will hinder the former corporation in the exercise and — 256 — enjoyment of its franchise.” Therefore the Legislature could not take away from the appellant the unrestricted right to the control and use of its road, and donate any portion of this right to the appellee. But there is a vital essential and paramount power belonging to the State which has never been surrendered to the General Government, and ' which is not limited or embarrassed by any considerations inferior to a regard for the public welfare. It is the right of eminent domain, or the right to take private property for the public use, with just compensation previously paid or tendered to the owner. The Legislature has the right to determine when private property shall be thus taken, and the duty devolves on the Courts to proteet the rights of the owner by enforcing just compensation before it is taken. Whatever doubts may have existed at one time on the •question, and it is probable they did exist when the •case of the Canal Company was decided, it is now settled by authority which this Court is bound to obey, that “ the grant •of a franchise is of no higher order, and confers no more sacred title than a grant of land to an individual, and, when public necessities require it, the one, as well as the other, may be taken for public purposes, on making suitable compensation ; nor does such an exercise of the right of eminent domain interfere with the inviolability of contracts.” West River Bridge Co. v. Dix, 6 Howard, 507 ; Richmond Railroad Company v. Louisa Railroad Co., 13 Howard, 83. As was natural and proper these decisions have been followed in the opinions delivered by the State Courts. We forbear to cite any of them, inasmuch as we consider that the Federal authority marks out the course for us to follow, independently of any other consideration: It has been said by the Supreme Court that the power to take private property for public use “ reaches back of all constitutional provisions.” Pumpelly v. Green Bay Company, 13 Wallace, 178. It has also been said on this subject that a grant made for one public purpose must yield to another more urgent and important. Of course, it rests with the Legislature- to deter — 257 — mine when the necessity arises for making one public purpose subordinate to another which it regards as of a higher degree of utility. It is, of course; not held by any Court that the Legislature can bestow the property of any person, natural or corporate, upon another, but that private property cannot be exempted from the supreme right of eminent domain, on the ground that it is held by a chartered right. And, of course, the same must be said in cases where it is held by virtue of a private contract. We therefore feel obliged to hold that the Act of 1894, chapter 162, constitutionally conferred on the appellee the right to condemn the corporate property and franchises of the appellant, including such as were embraced within the scope of the contract in reference to the horse railway. The statute law prescribes the mode in which the condemnation must be pursued. After the inquisition has been reduced to writing, and signed, and sealed by the jury, it is required to be returned to the Circuit Court of the county, which is invested with the jurisdiction to confirm it or to set it aside. The value of the appellant’s property and franchises will be very greatly diminished by the proceedings; under this Act of Assembly; but for the injury thus done,, including all damage which may be sustained by the seizure of its property, and any loss which may arise from an impairment of the value of its contract rights, it is the duty of the jury of inquisition to assess adequate compensation. The whole proceeding is subject to the power and control of the Circuit Court, which is the tribunal appointed by the law to afford redress where injustice has been committed by the jury. It is also its duty to see that the inquisition is regularly and properly conducted, and that the rights of the parties are duly protected. It is not competent for any other Court to exert this jurisdiction. It is held that where the law is constitutional, under which condemnation is sought, a Court of Equity has no power to arrest the proceedings by injunction; because a special tribunal is established for supervising the exercise of the right of eminent — 258 — domain, to which alone the power has been granted to hear and determine all questions which can arise regarding the inquisition. Western Maryland R. R. Co. v. Patterson, 37 Maryland, 125 ; Unreported Case of Same v. Keerl, decided at the same time ; C. & P. R. R. Co. v. Pennsylvania R. R., 57 Maryland, 267. (Decided April 19th, 1895.) We think that the decree below ought to be affirmed. Decree Affirmed.