Baltimore County Water & Electric Co. v. County Commissioners

Boyd, J., delivered the opinion of the Court. This is an appeal from a decree sustaining a demurrer, and dismissing the bill filed by the appellant against the appellees. The bill sought to enjoin the County Commissioners of ¹⁵⁵ Baltimore County and the Highways Commission of Baltimore County, from preventing, obstructing or in any way interfering with the construction by the appellant, or its employees, under the supervision of the Highways Commission, of its mains, pipes and conduits proposed to be laid in South Bend avenue, Fifth street and North avenue, in accordance with the application for a permit, which it had made to the Highways Commission. Those highways are in Mt.

Washington, which is an unincorporated village in the Third Election District of Baltimore County. By the Act of 1904, ch. 465, the County Commissioners are constituted the Highways Commission of Baltimore County “by which name they may sue and be sued in the Courts of this State in all matters pertaining to the highways and bridges over which they are given control by the provisions of this Act.” The individuals composing the Board of County Commissioners were also made defendants. , The appellant was formed by the consolidation of the Catonsville Water Company with the Chesapeake Electric and Water Company of Baltimore County. The Catonsville Company was incorporated by the Act of 1886, ch. 100, and its charter was amended by the Acts of 1888, ch. 73 and 1900, ch. 52. The Chesapeake Company was formed by the consolidation of two other companies, organized under the General Laws.

An application made by the appellant to the Highways Commission for a permit to lay water mains in the street and avenues named above was refused, and this bill was then filed. The appellees contend that the Act of 1900, ch. 52, is unconstitutional and void, under sec. 48 of Art. 3 of the Constitution, but without discussing that question, and assuming it to be valid, we will proceed at once to the consideration of what we deem to be the most important question in the case. It is thus stated in the appellant’s brief: “Was it within the chartered powers of the appellant to lay its water mains in the highways of Baltimore County, without first obtaining the assent of the County Commissioners of Baltimore County?” ¹⁵⁶ Inasmuch as the appellant relies entirely upon the powers conferred on the Catonsville Company by its original charter and the amendments thereto, to sustain its contention, it becomes necessary to ascertain what they were. It will be conceded that the powers and rights conferred upon that company to lay its pipes in the highways of Baltimore County now belong to the appellant, as the principle is settled in Con.

Gas Co. v. Baltimore Co., 98 Md. 695 ; State, use Dodson v. B. & L. R. R. Co., 77 Md. 489 , and other cases. Nor do we understand it to be denied by the appellees that the Catonsville Company had the power, under its original charter, to lay pipes in the highways of the village of Catonsville and in the First Election District of Baltimore County, without obtaining the assent of the County Commissioners. It was so decided by the lower Court, and in the case of Baltimore City v. Balto. Co. Water Co., 95 Md. 232 , we held that it was not necessary to have a permit from the City Engineer before it could lay its pipes in what was formerly a part of the First Election District of Baltimore County, but had been annexed to Baltimore City.

It is admitted by the appellant that it is proper to apply for a permit from the authorities, just as was done in the case last cited, so that they may know the work is being done by those authorized to do it and they can have proper supervision over it, but if the permit is refused then the appellant contends it has the right to proceed without it, provided, of course, it is done within the territory over .which it has such powers given it by its charter. The original charter confined the operations of the Catonsville Company to the First Election District of the County and Catonsville, and although the avenues and streets involved in this case are in the Third District, the appellant contends that the amendments to that charter now give it the right to lay its pipes, etc., in all the highways of Baltimore County, without first obtaining the assent of the County Commissioners, who, as we have seen, constitute the Highways Commission. By the Act of 1888 the Catonsville Company was empowered “to extend its operations to and including Ellicott City, ¹⁵⁷ and to within a radius or distance of one-half a mile from the corporate limits thereof.” It was furcher authorized and empowered by the Act “to exercise and use all the powers, privileges, rights and franchises, and in general to do anything within the corporate limits of Ellicott City aforesaid, and the radius or distance of a half mile therefrom as aforesaid, which it is now empowered to do in the village of Catonsville and the First Election District of Baltimore County by the provision of said Act” of 1886; and all the provisions of that Act were “extended to and declared to apply to and to be in force” in the new territory, as fully as if it had been named therein, and as fully as said Act of 1886 then applied to Catonsville and the First District. Then the Act of 1900, ch. 52, was passed.

It is an Act to amend the Act of 1886, incorporating the Catonsville Company, as amended by the Act of 1888, “by adding thereto certain sections for the purpose of extending the operations and increasing the powers thereof.” As it is the one under which the appellant claims the right asserted in this case, we will quote at length from it. It provides that ‘ ‘the Catonsville Water Company be and is hereby authorized and empowered, from time to time, to extend its operations to other parts of Baltimore County, and also to Howard and Anne Arunel Counties, and that said corporation shall have, in addition to the rights and privileges heretofore conferred upon it, and which it now enjoys, all the rights and privileges conferred-upon corporations incorporated under Art. 23 of the Code of Public General Laws * * * but nothing herein contained shall be construed to permit said company from further extending its operations in the city of Baltimore.” There can be no doubt that the Act of 1888 intended to give the company the same powers over the territory therein named as it had over that described in the original charter, but there is nothing on the face of the Act of 1900 to suggest to the Legislature that it was intended to give the company power to lay its pipes in any or all the highways of Baltimore Howard and Anne Arundel Counties, without first obtaining permission rom the county authorities. ¹⁵⁸ By Art. 23, sec. 246, of Code of 1888 (which was a part of the Act of 1868) it was provided that “Any corporation which may be formed under the provisions of this article for the purpose of supplying with pure water any town or city in this State’ ’ shall have certain powers therein named, including that “to lay its pipes and construct all such other works in said town or city as shall be necessary or suitable to carry out the purposes of said corporation; provided the assent of the municipal authorities of said town or city be first obtained.” Then by the Act of 1898, ch. 199, that section was amended (being now sec. 358), so that it embraced any corporation formed under that Article “for the purpose of supplying water” — no longer limiting it to supply pure water to a town or city — and it provides that such company “shall also have power to lay pipes and construct all such other -works as shall be necessary or suitable to carry out the purposes of said corporation; provided, the assent of the municipal authorities of any incorporated town or city in which the operations of said corporation may be carried on shall be first had and obtained, or if the operations of any such company shall be carried on in any county outside of an incorporated town or city, the assent of the County Commissioners of said county shall be first had and obtained.” The section then provides that all such works and the exercise of the powers granted shall, at all times, be subject to such reasonable regulations as the municipal authorities or County Commissioners, as the case may be, may prescribe. It is thus seen that the policy of this State, as declared by the Legislature in clear and unmistakable terms, was at the time the Act of 1900 was passed, and had been for years before, that all water companies chartered under the general íaws should be required to obtain the assent of the authorities in control of the public highways, before exercising the valuable franchise of laying their pipes in the public streets and roads. And, although we have not deemed it necessary to determine the question raised by the appellees, as to whether the Legislature could, under the provisions of the constitution above cited (sec. 48 of Art. 3), grant the powers to a corporation incor ¹⁵⁹ porated by a special act, to thus use the public highways without the assent of the officers in control of them, it is manifest that if such power be conceded or assumed to be vested in the Legislature it would be required to use clear and unequivocal language to indicate its intention to do so — in the face of its declared policy on the subject.

This Court said in Purnell v. McLane, 98 Md. 594 , “The right to a franchise is no more to be presumed, than the exemption from taxation, and therefore every assertion of'such right must, to be efficacious, be distinctly supported by clear and unambiguous legislative enactment. To doubt is to deny the right to the franchise.” We might with propriety add to this clear and emphatic declaration, that this is especially so when the right to use the public highways is asserted, regardless of the assent of those who have been placed in control over them by the laws of the State, and particularly when,