Mayor of Baltimore v. Baltimore County Water & Electric Co.

Briscoe, J., delivered the opinion of the Co.urt. The bill in this case was filed on the 5th day of December, 1901, in the Circuit Court No. 2, of Baltimore City, by the appellee, The Baltimore County Water and Electric Company of Baltimore County against the appellants, the Mayor and City Council of Baltimore, Thomas G. Hayes its Mayor, and Thomas F. Farnan, Deputy Marshal and acting Marshal of Police, for an injunction, to restrain the appellants, from preventing, obstructing or in any way interfering with the laying of water-mains and pipes on certain streets in a portion of the city of Baltimore which was formerly a part of Baltimore County, but which was annexed to the city by what is known as the Annexation Act of 1888. The appellee is a corporation formed by the consolidation of two companies to wit, The Catonsville Water Company and the Chesapeake Electric and Water Company of Baltimore County, and by articles of agreement dated the 7th day of May, 1900, succeeded to all the rights and powers of these two companies. The Catonsville Water Company was duly incorporated by chapter 100 of the Acts of 1886.

It will appear from an examination of this Act that by the second section thereof the Company was empowered to purchase, lease, hold, use and possess such lands, water-rights, powers and privileges, tenements, goods and chattels as may be nec ²⁴⁰ essary for collecting streams of water, elevating, preserving, using and distributing the same, as the means of abundantly supplying with pure water the public and private houses, streets, squares, lanes, alleys and other places in the village of Catonsville and also in the First Election District of Baltimore County, and for properly disposing of the water and such other powers as may be necessary to carry into effect the purposes of this Act. The fifth section of the Act provides that the company shall have power to purchase and lease property, real and personal, water-rights, powers, privileges, and to erect thereon all suitable reservoirs, dams, tunnels, conduits, fountains, engines and machinery, buildings and works of the company, to collect the water and dispose of the same for the purposes hereinbefore stated to excavate the earth and lay pipes for water in the village of Catonsville and the First Election District of Baltimore County. The Chesapeake Electric and Water Company was formed by the consolidation of the Chesapeake Water Company and the Bay View Electric Light and Power Company of Baltimore County, by chapter 432 of the Acts of 1894. On the 6th of April, 1901, the appellee made application to the City Engineer for a permit to lay certain mains and pipes in a certain portion of the First Election District of Baltimore County in order to extend its water business and to supply its customers, according to its alleged charter rights.

This application was refused by the City Engineer of Baltimore City, and hence this proceeding. The Court below directed the injunction to issue, and the appeal is taken from this order. The first question presented on the appeal is one of jurisdiction of the Court as to the remedy adopted. The appellants contend that the only remedy open to the appellee under the facts of this case was by petition to a Court of law for a writ of mandamus to compel the city officials to issue the permit.

There is nothing in this case to distinguish it in any material way from the recent cases of Chesapeake and Pot. Tele ²⁴¹ phone Co. v.Balto. City, in 89 Md. 716 and 90 Md. 644 , where it is held that injunction is the proper remedy. The rule there stated had been adopted in a number of cases in this Court and elsewhere.

Page v. Mayor, &c., 34 Md. 567 ; Hooper v. City Passenger R. R. Co., 85 Md. 509 ; State v. Latrobe, 81 Md. 222 . The second contention relied upon by the appellants and the important question in the case, briefly stated, is this : Was the power and authority to lay pipes and conduits for water in the town of Catonsville and in the First Election District of Baltimore County, given the appellee by the Legislature of the State by the Act heretofore mentioned, repealed or impaired by what is called the Annexation Act of 1888, ch. 98, or by the adoption of the new city charter, Act of 1898,' ch. 123, in so far as it relates to the annexed territory. Now it is admitted that the territory involved in this dispute, and which formerly constituted a portion of the First Election District of Baltimore County, is now a part of Baltimore City. It is conceded that if the rights, privileges and franchises granted the appellee company in this annexed territory, have not been changed or repealed by subsequent legislation, they now exist as originally granted.

We have carefully examined and considered the several statutes (the Annexation Act, 1888, and the new city charter, 1898), relied upon by the appellants,, and find nothing to sustain the contention urged by them int this case. On the contrary, we are all of the opinion'that by; the express terms of the Act of 1888, ch. 98, sec. 25, the rights and powers of the appellee company are fully reserved and protected. By the 25th section of this Act, it is clearly provided that before the Mayor and City Council of Baltimore shall lay any water pipes along any street, road, lane or avenue, in the territory mentioned in the second section of this Act, upon which the Catonsville Water Company has laid its. pipes and other water appliances, the said Mayor and City Council of Baltimore shall, if said company desires to surrender said pipes and water appliances in such street, road, lane or avenue to the Mayor and City Council of Baltimore, pay to ²⁴² the said company the fair value of its water