Purnell v. Mayor of Ocean City

Adkins, J., delivered the opinion of the Court. The bill of complaint in this case alleges that the plaintiffs are inhabitants, citizens, and taxpayers of the municipality of Ocean City, Worcester County, Md.; that by article 24 of the Public Local Laws of "Worcester County, Md., Code of 1888, and by chapter 457 of the Acts of 1904, the inhabitants of said city were made and declared a body corporate by the name of the Mayor and City Council of Ocean City; also recites the several amendatory acts of the General Assembly of Maryland, including chapter 464 of the Acts of 1924, which, together with the said original acts, constitute its charter; that said municipality has for many years held and had control over its streets, alleys, and highways, and the easements and franchises thereof, for the use and benefit of its citizens and taxpayers, until on or about the third day of ¹⁷² April, 1930, when the mayor and. city council by an ordinance “pretended to grant to the Eastern Shore Public Service Company of Maryland, its successors and assigns, permission to transmit, distribute and supply electric energy within and through the municipality of Ocean City, Maryland, and for that purpose to construct, operate and maintain poles, wires, lines, service, fixtures, appliances and appurtenances over, upon and under the present and future streets, alleys and highways of the said municipality”; that said ordinance “pretends to be a franchise * * * to the said The Eastern Shore Public Service Company of Maryland, and said company being a public utilities corporation applied to the Public Service Commission of Maryland for an order permitting and approving the exercise of said pretended franchise * * * which the said Public Service Commission approved by its order * * * on the 13th day of May, 1930 * * * ”; that plain-, tiffs and other citizens of said municipality, except the mayor and members of the council, had no knowledge of said grant or of the approval of same by said commission until on or about October 1, 1930, although plaintiffs are now informed that the commission published a notice of said application in one of the newspapers published in said county before the approval of said application; that said franchise was granted without any consideration, “or if any consideration was given therefor it was grossly inadequate”; that said ordinance states that, “It appears to said Mayor and City Council of .Ocean City that the interest of the public demands the granting thereof,” but plaintiffs aver that the interests of the public did not demand the passing of said ordinance, but that on the contrary it was detrimental to its interest; that the passing of said ordinance is ultra vires, illegal, null, and void; that the streets, alleys, and highways of said city and the right to the use of the same belong to the citizens and taxpayers, and that said rights are valuable assets to plaintiffs and all other citizens and taxpayers of said city, and that to subject them to the incumbrance thereof by said franchise would cause plaintiffs and other citizens and taxpayers irreparable loss and injury, for which no adequate compensa ¹⁷³ tion could be made to them at law; that the powers conferred upon the said commission are of a regulatory nature only, that its order should be rescinded. The bill prays for a decree declaring the ordinance null and void; that the order passed by the commission be declared null and void, and that the commission be ordered to rescind it; that plaintiffs and other citizens and taxpayers of said city be protected by an order of court as to their rights to have the benefit of electric current in said city under such terms and conditions as the court may direct. The Mayor and City Council of Ocean City, the Eastern Shore Public Service Company of TVlaryland, and the individuals constituting the Public Service Commission of Maryland, are made defendants.

The several defendants demurred to the bill of complaint. The chancellor sustained the demurrers and dismissed the bill. This appeal is from that decree. We have no doubt of the correctness of the ruling of the chancellor.

Section 1 of chapter 464 of the Acts of 1924 provided that the Mayor and City Council of Ocean City “shall have control and superintendence over the