Mayor of Baltimore v. Chesapeake & Potomac Telephone Co.

Page, J., delivered the opinion of"the Court: These parties have been twice before this Court — once in 89 Md. 689 , and again in 90 Md. 642 . It is unnecessary for the consideration of the questions involved in this appeal, to refer to these cases further than to say that by the first, it was ⁶⁹⁴ held that Ordinance No. 41 created a valid and subsisting grant which, having been sanctioned by the Legislature of the State, the Mayor and City Council are powerless to destroy or change ; and that by the second, the telephone companies having complied with the terms and provisions of Ordinance No. 41, were entitled upon the case as then presented, to an injunction against the interference by the city with the construction of its conduits, subject,- however, to the right-and power of the city to adopt reasonable regulations, etc. After the cause was remanded for the -Second time the city, through its counsel, filed a supplemental answer, and it is conceded the only questions now before us are those which arise upon the issues it tenders. The substance of the supplemental answer may be thus briefly summarized. The defendants allege: 1st.

That the Ordinance No. 41, if accepted as a contract, “was based primarily upon the consideration, that the telephone companies, for the privileges' granted, were to remove within the period of two years from the date of the approval of the ordinance ” as rapidly as conduits were constructed and cables laid therein, all poles under their control standing upon any street along which any conduit is constructed and cables laid ; and that said poles should not be replaced, except in so far as such poles “are necessary,” for the purpose of making distribution of and connection with the wires “ forming part or parts of any such cable; ” 2nd. That the complainant companies “have not removed any of the poles,” but to the contrary, “they have to-day in fact more poles in the city along the same streets and alleys where their conduits have been laid, than they had at the time of the passage of the ordinance ;” 3rd. That the primary consideration upon which the privileges set out in the ordinance were granted was to obtain the removal of the overhead wires; yet the complainants have not performed their part of the contract, by failing to remove such poles, it being “now well settled” that no poles or overhead wires are necessary for distribution or for house to house connection where conduits are laid, and that 4th, the complainants having thus failed to perform its ⁶⁹⁵ contractual obligations, and in fact having' violated the contract in letter and in spirit, cannot now undertake to ask the interference of the Court to protect them against the action of the city, authorities in refusing to permit them to lay further conduits. It is proper to state that it appears by the map filed among the proceedings that all of the conduits referred to in the bill and mentioned in the petition to the City Commissioner lie beyond the central part of the city and are not within those districts, which were called by the counsel at the argument the “congested." parts of the city.

The counsel for the city at the argument stated also that the city did not insist that the companies should, under the terms of the contract, be required to remove all the poles in streets devoted to residences and where many wires were not required; but only in the central or business parts of the city, where many telephones are used, and therefore many wires required ; that the requirements of the contract, as well as of public interest, demand that the companies should remove all poles in the “congested” parts of the city, it being proved that the distribution from the conduit by poles has now become obsolete and entirely unnecessary. The contention thus presented involves the inquiry whether the companies have performed the obligations imposed on them by the ordinance, and if they have not, whether notwithstanding, they are entitled to the relief prayed for in the bill. As to the latter branch of the inquiry, it cannot be questioned that when the companies asked the intervention of the Court to enable them to enjoy the privileges of the contract, it is incumbent upon them to show that they have performed everything that the contract requires to be done on their part. This follows from the application of a plain principle of equity, that one party shall not be bound when the other isjnot bound, and is a well-settled rule of equity.

O'Brien v. Pentz, 48 Md. 562 ; Duvall v. Myers 2 Md. Ch. 402 . It being incumbent, therefore, for the appellees to show, that they have performed what they agreed to perform, if it should appear that they have failed to remove such poles as by a ⁶⁹⁶ proper construction of their contract they had agreed to remove, they would not be in a position to ask the intervention of the Court to enable them to exercise further privileges under the ordinance. The main question in this case therefore is, what is the duty of the companies with respect to the poles used for distribution from wires forming parts of the cables in the conduits; and that depends upon the construction to be given to the contract with the city, as contained in ordinance No. 41. It requires merely a casual glance at the words of the ordinance to show that the ordinance confers upon the telephone companies exceptional privileges and powers, the exercise of which must interfere with rights of the public in and to the -streets of the city.

They are authorized to dig up as much of the bed of the steeets, alleys or highways of the city, as may be required for the construction of their conduits under the surface, take possession of the space so occupied and use it at their pleasure. And this valuable right, they can enjoy in perpetuity without interference from the municipal authorities, and to the entire exclusion of the public. The ordinance therefore confers upon the companies exceptional privileges and powers for their own benefit and advantage, which interfere to an important extent with the authority of the municipality to control its own streets. In such cases, it is a settled rule of construction that the contract must be construed strictly, and if there be found words in it capable of various meanings, that interpretation should be adopted which will best conserve the public interests.

This principle-is so conformable to reason that it can scarcely be necessary to cite authority, but in order to show how it has been applied a few examples will be given. In the case of the Atty.-Genl. v. The Furness Co., 47 L. J. Ch. Div. 778, the Vice-Chancellor said: “ They (the railway company) have a statutory right to exercise the powers which have been given them. But then they must be held to the strictest exercise of those rights.” In Fenwick v. East London Railway Co., 20 L. R. Equity Cases 549, the question arose as to the right of the railway company to erect a ⁶⁹⁷ mortar mill close to the place of business of the plaintiff, who complained of the injury and annoyance occasioned by the vibration', &c.

The Railway Clauses Act gave them power to do all “ other acts necessary for the making, &c., of the railway” provided they shall “ do as little damage as can be.” The Master of the Rolls in construing this Act, after citing from Lord Chief Justice Cockburn in Reg. v. Wycombe R. Co., Law R. 2 Q. B. 320, that, “ we are not to look at the convenience of the company alone, but to the accommodation and convenience of those who have rights of property which are interfered with, of those who have immediate access to the road or who use it of necessity in the ordinary course of business,” said it was on this principle that the Act must be strictly construed. See Endlich on the Interpretation of Statutes, sec. 354 and cases there cited. Also Moran v. Commrs., 2 Black 722 ; Baxter v. Tripp, 12 R. I. 310; Burbank v. Fay. 65 N. Y. 57 ; Lewis v. Weston, &c., L. R. 40 Ch. Div. 55; Sanderson v. Cockermouth, &c., Ry., 11 Beav. 497.

Bearing these principles in mind, we come now to the examination of the provisions of the ordinance. It was not controverted at the .argument that the object of the ordinance was to remove from the streets as far as possible the great and increasing number of overhead wires. How.to secure that end had even in 1889 become a serious problem, and it had become obvious also that in the not far distant future the system of overhead wires would be attended with grave perils to persons and property, and would greatly disfigure the appearance of the streets. Firemen had already found it dangerous and otherwise difficult to contend with fires ; and though telephone wires do not carry a sufficient voltage to make them dangerous to human life, it was obvious that sometimes the wires becoming detached and coming in contact with electric light or railway wires or other wires carrying a greater voltage would prove a source of peril to persons passing along the highways.

In addition to this, in the “congested” parts of the city, the hundreds of wires crossing and recrossing each other in apparently inextricable confusion, formed objects most unpleas ⁶⁹⁸ ing to the eye and offensive to the sensibilities. To get rid of this objectionable system, without curtailing the conveniencies of almost every class of persons in the use of the telephone, the Ordinance (No. 41) was enacted. By its provisions the city, in consideration of the prospective removal of overhead wires from the street, agreed to accord to the companies certain privileges and powers therein mentioned. That this was the purpose of the Act, we think, appears not only from a consideration of the external circumstances existing at the date of its passage, but also from a consideration of the preamble.

It is there expressly stated that the exchange in said location “will necessarily require, if the overhead system is wholly continued,” a large and increasing number of overhead wires alo'ng the length of the streets and other public ways leading to said building, and such a concentration at a point so central as the location of said building is not desirable, and it would be to the public advantage that such wires should be laid in cables underground, &c. Now, even rigidly construed, this seems to be that these companies being about to locate their new buildings in a central position in the city, where