Camden Sewer Co. v. Mayor of Salisbury

Digges, J., delivered the opinion of the Court. The question presented by this appeal is of some importance by reason of the fact that it relates to a matter of practice in the equity courts; and it is, whether or not an order of the chancellor, ratifying the act of a complainant in dismissing its bill of complaint by filing an order of dismissal with the clerk of the court, without first making application to the chancellor for an order of dismissal, will have the effect of dismissing the bill over the objection of the defendant. The facts which present the question are briefly these: On July 7th, 1902, the Mayor and Council of Salisbury, the appellee, passed an ordinance permitting the appellant to lay sewer pipes in or under certain of the streets of the City of Salisbury. By section 4 of said ordinance it was provided: “In consideration of the permission hereby and herein granted be it further enacted, and it is hereby expressly understood and agreed, that the Mayor and Council shall have the option and right at any time of buying from said parties (herein called the Camden Sewer Company), their heirs, legal representatives and assigns, all their interest in the said pipes ¹⁷⁷ put down by them under the authority of this ordinance upon paying the cost thereof, and of the laying of the same, with interest to the time of such purchase; and thereupon to take and assume absolute control and ownership thereof.” On July 7th, 1926, the appellee wrote to the appellant stating: “The Salisbury Water and Sewer Commission, an Agency of The Mayor and Council of Salisbury, hereby requests from you a full and complete statement, giving dates of construction of the various units of all sewers owned by the company and costs of same, located in Salisbury, Maryland.

This statement should also include interest on said items from the time such construction was made up to July 19th, 1926. This statement is desired for the purpose of enabling the Mayor and Council of Salisbury to exercise its option to purchase your sewer system in accordance with the terms of' your charges as contained in Chapter 12 of the Acts of the General Assembly of Maryland, Session of 1904, and likewise also contained in Section 4 of an Ordinance of the City of Salisbury, passed on July 7th, 3902, to the same effect. It is preferable that this statement, in addition to being complete within itself, should also be supported by an affidavit of one of your officers, who is in position to make oath as to its correctness, but the condition last mentioned is merely a request inasmuch as in said Ordinance and said Act of Assembly, no provision is made which would enable us to demand that you support your statement by affidavit. We request the above information to be in the hands of the Salisbury Water and Sewer Commission on or before noon July 17th, 1926, and your failure to render you such a statement within the above time will be taken for granted that you refuse to furnish the same.” On July 16th, 1926, the appellant replied as follows: “We are in receipt of your letter of July 7th, requesting us to submit a statement of the cost of con ¹⁷⁸ structing the Camden Sewer Company’s sewer system for the purpose of enabling the Mayor and Council of Salisbury to exercise its option to purchase said •system.

In reply thereto, we wish to say that, if the Mayor and Council desire to exercise their option to purchase our system, we desire tO’ have all of our claims against the Mayor and City Council growing out of the use and abuse of our sewer system settled at the time the option is exercised. You are, of course, aware of the fact that the Mayor and Council of Salisbury have been using our sewer system for a number of years to carry off surface water and that by so doing they have subjected us to much annoyance and considerable expense. We now have pending two suits against the Mayor and Council, and in addition to that we have some claims for damage on which suit has not yet been brought. We will sell to the Mayor and Council of Salisbury our sewer system and make settlement of the claims which we have against said Mayor and Council for damage for the sum of Twenty-five Thousand Dollars ($25,000.00), upon condition that the Mayor and Council pay the costs of suits now pending and that we be permitted to connect seven (7) residences with said system for persons who have already engaged same from us.” Subsequently, on August 2nd, 1926, the appellee filed its bill of complaint in the Circuit Court for Wicomico County against the appellant, in which the provisions of the ordinance are set out, and especially that portion of section 4 which we have quoted.

The bill then alleges that, in pursuance of the terms of the ordinance, the plaintiff notified the defendant of its desire and purpose to purchase the pipes put down by the defendant in pursuance of the ordinance, at the cost thereof and of laying same, with interest to the time of said purchase, and has requested the defendant to submit to the plaintiff the cost of said pipes and the cost of laying the same, together with the defendant’s computation of interest on the aggregate amount thereof, but the defendant has failed and refused to do so and has further ¹⁷⁹ refused to grant the plaintiff permission to examine the books and records of the defendant in order to ascertain the cost of said pipes and of laying the same; that by a proper construction of the aforesaid ordinance, and particularly in view of the provisions of section 4 thereof, the plaintiff is entitled to receive from the defendant, upon demand, an itemized statement of the cost of the pipes laid by it and the cost of laying the same pursuant to the franchise granted, together with a statement of the defendant’s computation of interest thereon, and is further entitled to verify the same by comparison with the books and records of the defendant; that the plaintiff is without adequate remedy at law, and, unless the defendant is required to submit such a statement to it and to permit the plaintiff to verify the same by comparison with the books and records of the defendant, the inhabitants and taxpayers of the City of Salisbury will suffer great and irreparable damage and injury and will be forever deprived of the right to acquire and operate in the name of and on behalf of the plaintiff the sewerage system now conducted and maintained by the defendant. A further allegation of the bill is that the plaintiff is ready, able and willing to pay to the defendant the cost of the pipes laid by it, together with the cost of laying the same, with legal interest thereon, upon learning the true and correct amount thereof. The prayers of the bill were, that the ordinance be specifically enforced; that the defendant be required to produce its books and records pertaining to the cost of the sewerage system maintained and operated by it in pursuance of said ordinance in order that the court might determine the amount to be paid by the plaintiff for the property; that the defendant bo required to transfer and assign unto the plaintiff said sewerage system in accordance with said ordinance, upon making such payment; and for general relief. The defendant, in its answer filed September 21st, 1926, denied that the plaintiff had notified the defendant of its purpose to purchase the sewerage system constructed in pursuance of the ordinance; admitted that the Salisbury Water and Sewer Commission requested the defendant to submit ¹⁸⁰ to it the cost of said pipes and the cost of laying the same, together with the defendant’s computation of interest to Inly 19th, 1926, but denied that the defendant had failed to do so, and alleged on the contrary that the defendant had submitted to the Salisbury Water and Sewer Commission an approximate cost of the pipes, together with the cost of laying same and interest thereon, together with damages sustained by the defendant by reason of the improper and unlawful use of said pipes; also denied that the defendant refused to grant the plaintiff permission to examine the books and records of the defendant, but alleged that the plaintiff had never requested the defendant to1 permit it to examine its books.

It is further stated in the answer that the books of the defendant will not show the cost of the pipes and laying same, as much of the expense connected with laying the pipes has never been entered upon the books of the defendant; and finally the answer asks that the defendant be dismissed with its reasonable costs. Subsequently the appellee filed its petition, in which it is alleged that the defendant, since the filing of the bill of complaint, has denied the plaintiff an opportunity of seeing its books and having the same examined by an accountant for the purpose of determining whether or not such books of account would give any information as to the dates when the various units of the defendant’s sewerage system were constructed and the original costs of such construction, and that the plaintiff will be at great disadvantage in showing the amounts which have been expended by the defendant in the construction of the sewer system unless the defendant be compelled to produce its books before the court for inspection by the court and the plaintiff. The petition then asks that an order be passed setting the cause for hearing and commanding the defendant to produce at sueh time all the books, accounts, receipts, contracts, vouchers, and, in general, all information whatsoever in his possession as will in any manner show or tend to show the date that the sewers belonging to the defendant were constructed, together with the costs of such construction. The chancellor on the same ¹⁸¹ day passed an order in conformity with the prayers of the petition.

On February 28th, 1927, counsel for the