County Commissioners v. United Railways & Electric Co.

Schmucker, J., delivered the opinion of the Court. The appeals in this case are from an order of the Circuit Court for Anne Arundel County overruling the appellants’ demurrers to the appellee’s bill for an injunction. The bill had been filed by the complainant in its two-fold capacity of a State and County taxpayer and the owner of property especially affected by the proceeding, which it sought to enjoin. ³⁸⁰ The main purpose of the injunction, asked for by the bill, was to restrain the defendants from proceeding with the execution or performance of a contract for the repaving of First street, commonly known as Light street No. 2, in the village of Brooklyn, purporting to have been made in accordance with a plan and specifications prepared under the supervsion of the State Geological and Economic Survey for such repaving. The bill of complaint also prayed that sec. 196 of chaj). 654 of the Acts of the General Assembly of 1908 be declared void in so far as it purports to authorize the County Commissioners of Anne Arundel County to compel the appellee to remove and relocate its existing tracks and' overhead work on First street and repave certain portions of the street with vitrified brick, and that the County Commissioners be restrained from proceeding thereunder.

Both defendants demurred to the bill, but their demurrers were overruled by the order appealed from which directed the injunction to issue as prayed. Before the hearing of the demurrers the bill was amended by consent by adding thereto certain additional allegations of fact 1o be treated as if they had formed part of the bill when it was filed. Those allegations will be treated as part of the bill for the purposes of this opinion. The principal allegations of the bill, as amended, are: That the complainant, as successor of 1he Baltimore and Curtis Bay Railway Company, owns -and operates a double track electric railway over the portion of First street sought to be repaved which extends about 1600 feet southerly from the county terminus of the long bridge.

That the tracks on First street were laid by its predecessor in strict conformity with the provisions of its charter (chap. 505 of Acts of 1890) which required them to be laid on the margin of the streets or roads occupied by them so as to leave a width of at least fourteen feet for vehicular traffic “unoccupied and undisturbed by said track or tracks.” That at the time the tracks were laid First street was private property and had not become a public road or street ³⁸¹ of Anne Arundel County, and therefore the complainant had acquired a private right of way over it by a deed, from its owner, the South Baltimore Harbor and Improvement Co., of which a copy is filed with the bill as an exhibit. At the time the charter of complainant’s predecessor was granted and when, the tracks were laid on First street and ever since then sec. 344 of Art. 23 of the Public General Laws of Maryland has provided, that: “In all cases where any passenger railway company uses the road bed or any portion thereof of any turnpike, street or road in any county of this St ate, it shall at all times keep in good and proper repair not only the portions of said turnpike, street or road which may be embraced between the rails of its track but also that part which shall extend for a distance of two feet on either side of said rails.” That the complainant has fully complied with not only the requirements of its charier as to the location of its tracks but also with the, provisions of the law in reference to keeping in repair the streets and roads on which they are located, and it is willing to continue to do so. The bill further alleges that the defendants the County Commissioners and Walter W. Crosby as Chief Engineer of the State Geological and Economic Survey have entered into an arrangement for paving the portion of First street, traversed by the complainant’s railway tracks, which is now an unpaved country road, with vitrified brick and the County Commissioners have awarded the contract therefor to H. E. Gray in pretended but not real conformity with the provisions of chap. 225 of the Acts of 1904, commonly known as the Shoemaker Boad Law. That the said arrangement for so repaving First street is illegal and void because, the Shoemaker Boad Law contemplates the construction or improving of public roads and highways at the joint expense of the State and County with macadamized or telford or other stone road or a road constructed of gravel or other good material, but it neither contemplates nor authorizes the paving of roads with vitrified brick which is far more expensive than either “telford” or “macadam” systems of road construction, which ³⁸² use broken stone and are similar in character, and that a brick pavement would not be suitable for a road like Eirst street.

It is further alleged that even if an arrangement for the paving of First street with vitrified brick could be made under the provisions of the Shoemaker Road Law the defendants in their attempted arrangement to utilize that law have failed to comply with its material provisions in that: (а) No written notice was given to the Chief Engineer of the Survey on or before the 1st of March, 1908, of the intention of the County Commissioners to improve Eirst street under the provisions of the Act as required by its first section. (б) Nor do the records of the Survey show that there, was ever any application made to it for or any consideration or approval by it of the paving or macadamizing of said street as required by section 2 of the Act. (c) The advertisement for bids for the paving having run for but twelve days was not made in conformity with the provisions of section 6 of the Act which required it to be published for two consecutive weeks. (d) The contract for said paving was awarded by the Commissioners at the price of $12,100.00 (being $506.00 in excess of' the estima'.e therefor of $11,591.00 made by the Chief Engineer of the Survey), in direct violation of section 1 of the Act which provides that “if all bids exceed the amount specified no contract shall be given.” (e) That there is an agreement between the County Commissioners and the Chief Engineer of the State Geological and Economic Survey under which the County Commissioners are to receive from the State, not one-half of the cost of paving the street with vitrified brick, but one-half of what a macadam road would cost if it were to be constructed in place of the brick pavement and no more.

The bill further alleges that the County Commissioners, under the assumed authority of the Act of 1908, chapter 651, have served upon the complainant a written notice requir ³⁸³ ing it at its own expense to take up its tracks from the margin of said street and relay the same in the middle of the street with girder rails instead of the “T” rails now in use and to pave "between the tracks as relaid and for two feet on the outside of the outer rails with vitrified brick, all of which will involve the new construction of 1600 feet of the railroad at an expenditure of about $16,000 upon a line which is even now operated at a loss. That the portion of said Act under which the County Commissioners assumed to act in serving said notice is found in section 196, and is as follows: “The County Commissioners shall have authority to compel any trolley or street railway company having or laying tracks on the public roads, avenues or streets of Anne Arundel County to change the rails and location of said tracks so as to make said roads, avenues or streets safer or better for travel, and to compel the said company or companies to pave and keep in repair the roads, avenues or streets covered by said tracks and extending two feet on the outer limits of either side of said tracks with the same kind of paving material with which the remaining portion of said roads, avenues or streets may he paved. The failure of any street railway company to comply with the provisions of this section shall be a midemeanor and punishable by a fine of twenty dollars a day for each day the said railway company shall neglect to comply with the provisions of this section.” The hill then charges that the said portion of the Act of 1908, chap, 654, is invalid under sec. 29 of Art. Ill of the Maryland Constitution because the title to the Act, which is a local law purporting to amend the road law of Anne Arundel County, gave no noticie that it embodied an attempt to amend the charter, of complainant’s predecessor, by which the location of the tracks on said street is fixed and defined, ■or to alter the complainant’s obligation as defined by sec. 344 of Art. XXIII of the Code of 1904, or to impose upon complainant the cost and expense of reconstructing its tracks and ■overhead work, or to attempt to make it a misdemeanor for it to exercise its charier rights. It is further charged that ³⁸⁴ said portion of the Act of 1908 is unconstitutional because it is special legislation intended to apply to and applicable at the time of its passage only to the ease of the complainant.

In that connection it is further alleged that at the Session of 1908 there was introduced on February 21, 1908, a bill known as House Bill No. 273 to require the Baltimore and •Curtis Bay Eelectric Railway Company to move its tracks on First street in Brooklyn and change the same to girder rails and pave and keep in repair the pavement between said tracks and for two feet on either side thereof; and that the said bill failed of passage, and that subsequently the bill, which became the Act of 1908, chap. 654, and which by its title gave no notice to the complainant that its rights were intended to be thereby affected, was introduced and passed as House Bill No. 273. The prayer of the bill is for a preliminaiv injunction restraining the County Commissioners from issuing or attempting to enforce any order requiring complainant to change the location of its tracks or to pave the street with an improved pavement, and the Chief Engineer of the State Geological and Economic Survey from appi’oving the contract for the proposed paving or superintending its execution, and also restraining the County Commissioners from receiving any St ate money' for the said proposed paving or spending any County money thereon; and that the portion hereinbefore quoted from the Act of 1908, chap. 654, may be declared unconstitutional and void and the defendants perpetually enjoined from proceeding thereunder; and that it may he adjudged and decreed that no State money can be expended under the Shoemaker law for vitrified brick pavement; and for general relief. It is apparent from the allegations of the bill that the ordqr overruling the demurrers to it was properly passed and must be affirmed, if for no other reason, because of the failure of the defendants to comply with the requirements of the Shoemaker Road Law in the several respects already mentioned. At the hearing of the appeal the appellants con ³⁸⁵ tended that those requirements of the law were intended to safeguard the interests of the State alone and not be invoked on behalf of private interests; or that they were to be regarded as merely directory, and requiring only a substantial compliance with their terms.

They also relied, in support of their proceedings in reference to paving First street, upon the general powers of the County Commissioners in reference to the construction and repair of public roads, which sec. 15 of the Shoemaker Law declares that its enactment was not intended to abridge. Ye cannot accept as correct either of these contentions. The Shoemaker Law contemplates the expenditure under its provisions of large sums of both State and County money and its carefully prepared and well considered requirements were intended, as we said in Fout’s Case, 105 Md. 567 : “to exclude favoritism, jobbery and dishonesty and to insure the application of business principles t'o the work to be done under the law.” They were inserted in the law for the benefit of the public generally and espcially tbe State and county taxpayers, upon whom the burden of providing the money for the contemplated improvement of the public roads must ultimately fall and they cannot be disregarded without endangering the purpose of their enactment. The provisions of other public general and local laws, conferring upon County Commissioners power to construct and repair roads at tbe expense of the several counties and regulating the exercise of that power, create a distinct, system, independent of and different from that introduced by the Shoemaker Law, which was passed for the improvement of the public roads of the State at the joint expense of tho State and the County in which the road lies.

Both of these systems are statutory, and for that reason also in order to give validity to proceedings under either one of them the statutory requirements of that particular one must' be complied with. Ao countenance is found in the Code for an attempt to combine the two systems in tbe opening or improvement of any one road. Aot only are the theories upon which the two ³⁸⁶ systems proceed separate and distinct hut the statutory requirements of the one are inconsistent with those of the other. In the construction and repair of roads, under the general statutory powers of the County Commissioners, not only the survey and preparation of'the plans for the work hut its entire execution is required hy the law to he under the “charge, control and supervision” of the County Road Engineer who is required to “make annually in writing a detailed report to the County Commissioners of all work done on the roads and bridges for the year” and the amounts due therefor, for the payment of which the Commissioners are required to make provision.

On the contrary, in all roads constructed or improved under the Shoemaker Law, the propriety of the undertaking must he determined and an estimate of its cost made hy the »State Geological and Economic Survey, and the surveys and plans therefor must he made hy its engineer and if, as in the present case, the work is he done by contract such contract must he approved hy the Survey and executed and performed under its “immediate supervision,” and the completion and cost of the work must he certified hy it to the State Comptroller