ART. III] LEGISLATIVE DEPARTMENT. 59

Since an ordinance imposing an assessment upon adjacent property for
the repaying of a street, is the exercise of the taxing power and not of
the right of eminent domain, this section has no application; hence such
ordinance need not contain provisions for notice for a hearing or for a
jury trial on appeal. Baltimore v. Johns Hopkins Hospital, 56 Md. 30'
(cf. dissenting opinion).

Jury trial; notice; damages.

If the law under which the condemnation is had. provides for an orig-
inal assessment or award and for a jury trial on appeal therefrom, this
section and article 5 of the declaration of rights have been complied with;
and if no appeal is entered within the time prescribed, and the compensa-
tion assessed is paid or tendered, the property may be taken for a public
use. The compensation need not be paid or tendered before a survey is
made or other preparatory steps taken, but a street cannot be opened or
used, or the -land entered to grade or to prepare the ground for that pur-
pose, until the compensation is tendered or paid. Stewart v. Baltimore,
7 Md. 511. And see Knee v. City Passenger Ry. Co., 87 Md. 625; Howard
v. First Church, 18 Md. 455; cf. Danner v. State, 89 Md. 226.

This section referred to in deciding that in a proceeding to condemn
property under article 23, section 399. of the Annotated Code, the owner is
entitled to notice before the property is condemned and notice of the pen-
dency of the inquisition in the court for confirmation is not sufficient. The
jury meant by this section is either a common law jury or a jury sum-
moned by warrant. Baltimore Belt Co. v. Baltzell. 75 Md. 105. And
see Pitznogle v. Western Md. R. R. Co., 119 Md. 682.

The method for ascertaining compensation by three appraisers, provided
by the act of 1912, chapter 117, their award to be subject to exception, and
the exceptions to be tried before a jury unless a jury trial is waived, held
not to violate this section. The measure of damages in condemnation
cases, as in all other cases, is a question of law. and the act of 1912 did
not attempt to establish such a measure. Ridgely r. Baltimore, 119 Md.
572; Pitznogle v. Western Md. R. R. Co., 119 Md. 677.

The legislature cannot fix the compensation to be paid in condemnation
cases, as that must be passed on by a jury. Pa. R. R. Co. v. B. & O. R.
R. Co., 60 Md. 269.

Generally.

This section referred to in justifying an injunction upon a bill alleging
acts without legal authority, done and threatened, which will cause irrepa-
rable damage and that no compensation had been paid or tendered for the
use of certain land. Western Md. R. R. v. Owings, 15 Md. 204. And see
American Telegraph Co. v. Pearce, 71 Md. 539.

Title does not vest until the amount assessed is paid or tendered; the
mere assessment of damages does not constitute a taking, and the cor-
poration may renounce the inquisition and abandon its enterprise at any
time before actual payment. Norris v. Baltimore. 44 Md. 604; Merrick v.
Baltimore, 43 Md. 231; State v. Graves, 19 Md. 370.

Both an assessment by commissioners with a right of appeal and the
assessment of benefits on the owners benefited, are established as consti-
tutional modes of providing compensation to owners of land taken for
public use. State v. Graves, 19 Md. 369.

The portion of the act of 1817, chapter 148, providing that no one should
be entitled to damages for improvements unless the same were erected
before a certain street was laid out, held unconstitutional; where property
is taken for the bed of a street, the owner is entitled to compensation as if
no street was opened over it. Moale v. Balto., 5 Md. 321. And see Stewart
v. Baltimore, 7 Md. 510.

The act of 1860, chapter 265 (incorporating the Consolidation Coal Com-
pany and giving it all the rights of eminent domain in the construction,
etc., of railroads which had been conferred upon the Baltimore & Ohio-
Railroad), as well as the charter of the Baltimore & Ohio Railroad itself,
must be construed in connection with and as subordinate to this section.
State v. Consolidation Coal Co., 46 Md. 6.