Mayor of Salisbury v. Camden Sewer Co.

Thomas, J., delivered the opinion of the Court. In 1902 the Mayor and Council of Salisbury, Maryland, a municipal corporation, passed an ordinance authorizing William J. Staton and others to construct and maintain certain sewers in its streets. The ordinance recites that William J. Staton, L. E. Williams, N. T. Fitch, A. A. Grillis and others were desirous of laying a sewer pipe on Camden Avenue, and such other streets and boulevards intersecting or crossing said avenue as they might find advantageous, for the purpose of affording proper and adequate drainage from, their properties, and the properties of persons to whom they should sell the right to make connections with such sewers, and then provides: ²⁵⁶ “Row, in view of the incidental advantages to public health and comfort which will be contributed by said sewers, and the further advantages of having them constructed and maintained by private enterprise, be it enacted by the .Mayor and Council of Salisbury, Wicomico County, Maryland, that the said William J. Staton” and others called, “for the purpose of convenience,” the “Camden Sewer Company, are hereby granted leave and permission to lay a main sewer pipe on Camden Avenue, from the south end thereof to the Wicomico River, with pipe of not less than twelve inches in diameter, and with the right to lay subsidiary pipes of not less than eight inches in diameter, on any or either of the streets or boulevards crossing or intersecting, or convenient to said main sewer, that the said company may deem advantageous to do, and to discharge from said subsidiary pipes into said main pipe.” “Section 2. And be it enacted, That the said Camden Sewer Company may impose and charge such fee (not over $75.00) as it shall deem best, for the connection by any owner or tenant of any residence or other building, with either of the sewers so to .be constructed by it; and shall not refuse to permit such connection to be made by any such owner or tenant wno shall with his application for leave to make such connection, pay or offer to pay to the treasurer of said company the fee therefor as aforesaid; provided always that the sewer pipe with which connection is desired to be made is not already taxed to its full capacity.” Section 4 contains the following provisions: “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 privilege of draining surface water on Camden Avenue in said main sewer from the corners formed by any intersecting street, free of charge; provided, and so long as, the admission of such surface water shall not and does not interfere ²⁵⁷ with the primary purpose for which said sewer is laid by the company, or prevent its efficiency in that regard, or prove detrimental to its permanency; and if the said company and the Mayor and Council should at any time disagree on any matter relating to the admission of said surface water into said sewer, then the matter shall he submitted to three disinterested persons, of whom the company shall choose one, Mayor and Council another, and the two persons so chosen shall select a third (who preferably shall he a.n expert on sewerage drainage), and the decision of the three shall he final. “It is further understood and agreed that the Mayor and Council shall have the option and right at any time of buying from the said parties (herein called the Camden Sewer Company), their heirs, legal representatives, and assigns, all their interest in the said pipes 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 ihe time of such purchase, and thereupon to take and assume absolute control and ownership thereof.” In 1904 the Camden Sewer Company was incorporated, and it is agreed in this case that said corporation thereafter became entitled to, and at the time of the trial of this ease “lawfully” held and exercised “all the rights, privileges and franchise” granted by said ordinance.

This suit, which was brought in 1920 by the sewer company against the Mayor and Council of Salisbury in the Circuit Court for Wicomico County, was removed to the Circuit Court for Worcester County, where the trial resulted in a judgment in favor of the plaintiff for $333.59, and this appeal by the defendant brings up for review rulings of the court below on a demurrer to the declaration, a demurrer to the third plea to the first count of the declaration, and on the evidence and prayers. The declaration contains two counts. The first count, after alleging that the defendant was a municipal eorpora ²⁵⁸ tion, the passage of the ordinance to which we have referred, the incorporation of the plaintiff in 1904, the assignment to it of the rights and franchise granted by said ordinance, and that the plaintiff still held and exercised said rights and franchise, then alleges that in the exercise of said franchise “the plaintiff during or about the year nineteen hundred and four began to construct a main sewer running from a point on Camden Avenue where the same intersects the southern limits of the said town of Salisbury along said Camden Avenue in a northerly direction to the Wicomico River, said sewer pipe being not less than twelve inches in diameter; and that from time to time thereafter the said plaintiff in the exercise of its franchise aforesaid laid and constructed sewer pipes not less than eight inches in diameter along and under other streets intersecting and crossing Camden Avenue and lying to the eastward thereof, among which said cross, streets is a certain Newton Street; that said ordinance passed by the Mayor and Council of Salisbury * * * contains among other provisions the following conditions.”: The declaration then sets out the first paragraph of section 4 of the ordinance, and further alleges “that .the primary purpose for which the plaintiff was incorporated and the said sewers constructed by”’ it “was and is to carry sewage from residences along said Camden Avenue and the streets intersecting” it “into the Wicomico River, for which said service the plaintiff is entitled to charge and receive a fee of seventy-five dollars, for each entry into its said sewer from said residences, and it becomes thereupon the duty of the plaintiff to maintain said sewer system so as to properly serve its said patrons * * *; that the said defendant instead of entering said main sewer on Camden Avenue aforesaid at the intersection of said Camden Avenue with said cross streets, as provided by said ordinance, has from time to time, since the construction of said sewers along and under said cross streets, constructed certain catch basins at divers points on said cross streets, and especially on said Newton Street, through which said catch ²⁵⁹ basins the said defendant for more than three years last past and up- to the present time has wrongfully and without the consent and permission of the plaintiff drained and continues to drain the surface water from said cross streets and other streets of ilie .said town of Salisbury into the several sewers iaid by the plaintiff as aforesaid along and under said cross streets, causing a portion of said sewer under said Newton Street, to wit: the eastern end thereof, to become filled up with sticks, chunks, earth, and other debris washed into it from said streets, whereby said portion of said sewer on said Newton Street became completely filled np and closed on or about the 20th day of May, nineteen hundred and twenty, so as to render it incapable of carrying sewage from the residences of plaintiff’s said patrons entering said sewer on said portion of said street, thereby compelling the plaintiff to take up and remove said portion of said sewer, and to clean out and relay the same, at great cost and expense to the plaintiff whereby the plaintiff suffered great loss, damage and injury.” The second count, after making substantially the same averments, without setting out the section of the ordinance quoted in the first count, then charges “that for a number of years last past and especially for three years last past, the said defendant has so negligently and carelessly maintained said catch basins, which enter into the east end of said Newton Street sewer, and has so negligently and carelessly permitted said surface water to be drained into the eastern portion of plaintiff’s said sewer on said Newton Street, as to cause said part of said sewer-to become filled up- with said debris, and to cause said portion of said sewer along and under said Newton Street, to wit: the east end thereof, to become closed completely on or about the 20th day of May, nineteen hundred and twenty, so as to render it incapable of carrying sewage from the residences of the plaintiff’s said patrons entering s-aid sewer on said street, and thereby compelling the plaintiff to take up and remove said portion of said sewer ²⁶⁰ and to clean out and relay the same at great cost and expense to the plaintiff', by reason of which the plaintiff suffered great loss, damage and injury.” The ground of the demurrer to the first count is that, under the proper construction of the ordinance granting, the franchise, the Mayor and Council was authorized to turn the surface water on the intersecting streets into the sewers constructed on such streets, and counsel for the appellant cites a number of cases in support of his contention that “if the language of an ordinance is reasonably open to two constructions, that one will be adopted which is favorable to the city. Any doubt must be resolved in favor of the public.” Assuming that these cases go to the extent claimed, and that they are applicable to ordinances of the character of the one under consideration, which may become contracts between the city and the party accepting and acting upon them (Westminster Water Co. v. Westminster, 98 Md. 551 ), it is obvious that they cannot apply to this particular ordinance.

In Gill v. Cacy, 49 Md. 243 , the Court said: “In construing statutes the intention of the Legislature is to be carried out, and that intention is to be collected from the words of the statute, by considering every part of it, as well as the cause or necessity for making the Act, or from foreign circumstances,” and in the case of Smith v. State, 66 Md. 215 , the Court said that “the doctrine in all the states seems to be well established, and it is now uniformly held, that if the language of a statute is plain and unambiguous there is no room for construction, there being nothing to construe.” The same general rules apply to ordinances. State v. Kirkley, 29 Md. 103 ; 28 Cyc. 388; People v. Deeham, 153 N. Y. 528 . Turning to the ordinance, we find the intention of the Mayor and Council clearly expressed in language plain and unambiguous. That language is: “It is hereby expressly understood and agreed, that the Mayor and Council shall have the privilege of draining surface water in Camden Avenue in said main sewer from the corners formed by any intersecting street, free of charge.” ²⁶¹ The right and privilege thus reserved to the city was not the right to drain surface water on the intersecting streets into the sewers on those streets, hut to drain surface water on Camden Avenue into tlic “main” sewer- from the corners formed by the intersecting streets.

The ordinance also provided that the main sewer on Camden Avenue should be not less than twelve inches in diameter, while those on the intersecting streets were to be not, less than eight inches in diameter, and it may well be that this difference in the size of the sewers accounts, for the restriction of the right reserved to the city to the main sewer on Camden Avenue. It is suggested in the brief of the