Mayor of Hagerstown v. Hagerstown Railway Co.

Thomas, J., delivered the opinion of the Court. The appeal in this ease is from a decree of the Circuit Court for Washington County dismissing the bill of complaint of the Mayor and Council of Hagerstown to enjoin ihe Hagerstown Railway Company of Washington County, Maryland, from erecting or replacing poles in the streets, etc., of Hagerstown, and stringing wires thereon for the purpose of supplying light and power to the citizens of that city, and from furnishing electric light and power therein. The case was heard upon bill, answer and evidence, and while there is very little, if any, dispute as to the material facts, a statement of them is necessary for a clear and accurate presentation of the propositions involved. The Charter of Hagerstown, sections 171 and 182 of Art. 22 of the Code of Public Local Laws of 1888, provided that the Mayor and Council should have power to pass all ordinances necessary for the good government of the town; to prevent, remove and abate all nuisances or obstructions in or upon the streets, alleys, etc.; “to make and establish grades Upon the streets and highways of the town;” to cause the sidewalks along the streets to be graded and paved and “curbs to be set and gutters laid;” to grant licenses to hawkers and peddlers, and regulate the sale of wares and merchandise on the streets; to regulate and tax carriages and other vehicles used in the town, and to' provide for laying out, opening, closing, etc., any street, etc., in the town.

Section 183 provides for the appointment of street commissioners, who are required to elect one of their number as president; to' keep a full and accurate record of all their proceedings, and to report every three months to' the Mayor and Council an itemized account of all money expended by them. The clerk of the Mayor and Council is required to serve as “clerk of the Board of Street Commissioners,” who have charge of the ¹⁸⁵ repairs and improvements of the streets, alleys, etc., and, by section 191, and the Act of 1892, Ch. 65, are given control of the lighting of the town, with power to provide the material, employ the necessary labor and make all needed provision therefor, and the further power “to contract with any person, corporation or association for such lighting,” provided that the cost of lighting under any contract does not exceed $5,000.00 per year, and the contract is not made for a longer period than ten years. In 1893 the Board of Street Commisioners entered into a •contract with the Schuyler Electric Company for the lighting of the streets of the city. On the 10th of May, 1895, the Mayor and Council passed an ordinance authorizing Powell Evans, his heirs and assigns, “for the purpose of •supplying' electric current for all purposes, to erect and maintain poles on all streets, alleys and city properties within the ■city limits of Hagerstown, and to string and maintain electrical conductors and other wires, and to plaice and maintain all necessary apparatus on said poles for said purposes; * * * to make connections with all buildings in the city limits, and ■erect and maintain in the city limits power plants for providing for the distribution of electric current;” to connect with any system or systems outside of the city limits for supplying electric current, and to sell, lease or rent electric current and apparatus for making use of the same. “Provided that electric current for motive power for machinery he supplied in the City of Hagerstown as a necessary condition of the use of the powers conferred in this ordinance.” Section 2 of the ordinance provided that the location of the poles ■should he approved by a committee consisting of the Mayor, ■and two members of the Oity Council, to be selected by the Mayor, who were authorized to order the location of the poles to be changed.

Section 3 required Evans, his heirs and ■assigns, to enter into a bond to remove the poles if they were not used “in one year after erection for supplying electric ■current,” etc. By section 4 the Mayor and City Council ¹⁸⁶ reserved the right to string on said poles the wires connected with the fire alarm system of the city, and provided that the franchise granted by said ordinance was to be accepted upon that condition, and section 6 authorized Evans, his heirs and assigns-, to purchase, etc., any system for supplying' electric-current then “constructed in the city limits,” and authorizing’ the corporation owning any such system to sell the same' to Evans, his heirs or assigns. Powell Evans entered into a contract with the Schuyler Electric Company-for the purchase of its plant, contracts, etc., and on the 11th day of November, 1895, the Board of Street Commissioners passed an order in which, after referring to the contract made with the Schuyler Company, and reciting that said company had contracted to sell its plant, franchises, contracts, etc., to Evans, it was ordered that the following contract “take the place” of the contract which the board had entered into with the Schulyer Company. The contract referred to in the order was executed on the 11th of November, 1895, by Evans and the Street Commissioners. It provided that Evans should “have the contract for lighting the streets * * * with the Schuyler or any other equally as good system” for the term of five years', beginning on or before January 1st, 1896, as set out in said order, provided Evans, in the meantime, purchased, by deed duly recorded, the “present electric plant complete in this city,” and “has given” a bond to the commissioners, in the penalty of $5,000, to secure the faithful performance of his contract.

After-specifying the kind of lights to be furnished, the amount to be paid by the city for each light, that the lights- were to be located and maintained on good wooden poles, etc., satisfactory to' the commissioners, at the points on the streets where they were then located, unless otherwise ordered by the commissioners, and that the commissioners should designate the places at which new lights were to be located, the contract further provided that Evans should also furnish and maintain in the city “an incandescent lighting system.”' ¹⁸⁷ satisfactory to the Street Commissioners, “of not less than 1200 lights, for commercial and private purposes,” and furnish light to consumers in the city on terms not to exceed the rates therein stated, and that Evans should have the right to sell “his property and rights in Hagerstown,” including his rights under that contract, and to have his bond released, provided his assignee gave a bond in the penalty of $5,000, for the faithful performance of said contract. The appellee, the Hagerstown Railway Company, was incorporated under the general incorporation law in 1896 for the purpose of constructing and operating a passenger railway in Hagerstown and Washington County. Its charter was amended by the Act of 1896, Oh. 419, which authorized the company to issue bonds and to' acquire by purchase or condemnation land necessary for the construction of its railway. Section 111' of Art. 23 of the Code of 1888 was amended by the Act of 1894, Ch. 308 (Code of 1904, Art. 23, sec. 143), so as to provide that any electric light company formed under that article should have the power to manufacture, furnish and sell electric light and power in any city or town of .Kent, Somerset, Carroll, Montgomery or Washington counties for lighting the streets, roads, public or private building, or for motive power or other purposes, and authority to build its lines along and upon the streets, roads, etc., subject to such ordinances as might be passed by any city or town for filling up or restoring such streets or roads to their normal condition, provided that “in the construction, maintenance, removal and repair of all such lines and appliances in Washington county, the same shall be done under such regulations as the Mayor and City Council of Hagerstown, or the County Commissioners of said county, having jurisdiction, shall prescribe.” On the 28th of February, 1898', the certificate of incorporation of the appellee was amended under the provisions of the general incorporation law, and the new certificate declared that the corporation was formed for the purpose of constructing and operat ¹⁸⁸ ing a railway, etc., and also “for the purpose of manufacturing', generating, selling and furnishing electricity for lighting, heating, power and other purposes, and to buy, purchase, construct, build, equip and operate such plants, works and machinery as may be necessary for such purposes.” The Railway Company then acquired by assignment the electric plant, contracts and franchises of Pbwell Evans in Hagerstown, and on the 1st day of March, 1898, executed its bond to the Mayor and Council of Hagerstown, in the penalty of $5,000, for the faithful performance by it of the contract between Evans and the Board of Street Commissioners.

On the 29th of March, 1898, the Board of Street Oommisioners passed the following resolution: “Whereas, Powell Evans has sold to the Hagerstown Railway Company of Washington County, Maryland, the Electric Light Plant in Hagerstown, and has requested the Board of Street Commissioners to accept the bond of the said Railway Company in the penalty of five thousand dollars in lieu of a bond filed by him, the said Powell Evans. How, therefore, be it “Resolved, That the Board of Street Commissioners of Hagerstown, Maryland, do hereby accept the bond of the Hagerstown Railway Company of Washington County, Maryland, principal, and the Eidelity and Deposit Company of Baltimore, Maryland, as surety, in the penalty of five thousand dollars in lieu of the bond heretofore accepted by the said Board of Street Commissioners from Powell Evans and now on file in the office of the. Mayor and Council of Hagerstown, and that the contractural obligations now existing by and between Powell Evans and the Board of Street Commissioners are hereby accepted by the Board of Street Commissioners, to be performed and carried out by and on the part of the Hagerstown Railway Company of Washington County, Maryland, in lieu of the said Powell Evans and as referred to in the bond filed by the Hagerstown Railway Company of Washington County, Maryland, and being a part thereof.” ¹⁸⁹ By the Act of 1898, Ch. 479, approved April the 9th, entitled “An Act to amend the charter and to extend the powers of the Hagerstown Railway Company of Washington County, Maryland, so as to confer upon said company,” powers, “in addition to the powers heretofore granted,” the charter of the appellee was again amended, and it was provided “that said company shall have the right to carry over its railway or” any of its connections, for hire, express matter and merchandise, and shall also have power to manufacture, furnish and sell to persons or corporations electric light, electric heat and power, and to contract for and furnish electric light for lighting streets, roads, private or public buildings in said county, and to furnish electricity for motive power and other purposes, to any and all persons and corporations * * * , and by and with the consent of the municipal authorities or town officers, in any city or town in said county, to lay, purchase, construct and build lines, conductors and conduits under, along, upon or over the streets or alleys in any town in said county, * * * and to connect said lines, conductors and conduits with any manufactory or private buildings, lamps or other structures, objects, cars or conveyances in Washington county.” After the assignment by Rowell Evans to the Railway Company of his plant, contracts, etc., the Railway Company operated that plant, lighting the streets and furnishing light and power to the citizens of Hagerstown, in accordance with the provisions of the ordinance and contract, until the fall of 1898, when it built a new and very much larger plant for that purpose. After the erection of the new plant the appellee continued to furnish electricity for lighting the streets of the city until the expiration of the contract referred to, and over since it purchased the Evans plant it has been engaged in furnishing light and power to private consumers in the city and suburbs of Hagerstown.

During that time, in addi ¹⁹⁰ tion to the establishment of the new plant, new poles have L-een erected, lines have been extended and new contracts have been obtained for furnishing light and power to individuals and corporations. The poles erected or maintained by the Railway Company for supplying light and power, were from time to time changed, replaced and painted in accordance with resolutions passed by and an agreement with the Mayor and Council, and have been used by the city in connection with its fire alarm system. By the Act of 1898, Ch. 381, the Mayor and Council of Hagerstown were authorized “to' issue bonds to' raise a sum of money to erect a plant for the purpose of supplying the •town with electric light and power, or either, in the discretion of the Mayor and Council,” and by the Act of 1900, Ch. 75, provision was made for the establishment by the city, with the approval of a majority of the voters of the city, of an electric light plant of sufficient capacity to' light the streets and to supply the citizens with light. The plant was completed in 1902, and since then the Mayor and Council have been furnishing light to private consumers in the city.

In 1910 and 1913 the Mayor and Council notified the Railway Company to cease.furnishing light and power to the citizens of Hagerstown, and to remove all poles used by it for that purpose from the streets and alleys of the city, and upon the failure of the Railway Company to comply with said notices the Mayor and Council, on the 17th of January, 1913, filed the bill of complaint in this case for an injunction as we have stated. The contentions of the appellant are (1) that the Mayor and Council had no power to pass the Powell Evans Ordinance, and that the ordinance is void; (2) that the Act of 1894, Oh. 308, did not confer upon the Mayor and Council of Hagerstown any power to' grant a franchise for furnishing electric light and power in the city; did not give any right to Powell Evans because he was not an “electric light company,” and did not confer any power upon the Railway Company because at the time that Act was passed the Railway ¹⁹¹ Company was not