United Railways & Electric Co. v. Mayor of Baltimore

Burke, J., delivered the opinion of the Court. This is the defendant’s appeal from a judgment for twenty-two thousand, four hundred and forty-nine dollars and fifty-six cents entered against it in the Superior Court of Baltimore City. The suit was brought under the Act of 191-1-, Chapter 37, to recover from the defendant the amount paid by the Mayor and City Council of Baltimore for paving, as shown upon the account filed with the declaration, the area between and for two feet on each side of the defendant’s tracks on Baltimore street, from Fremont to Liberty streets, in Baltimore City. There is no question of pleading involved, and it is admitted that the account is correct and shows the sum paid by the City for doing the work.

The single question in the case is one of law. The case was tried in the Court below without the intervention of a jury, and that Court, treating the question as one arising under the Federal Constitution, held that the Act did not violate the provisions of that Constitution, and, resting its judgment principally upon the case of Fair Haven and Westville Railroad Co. v. City of New Haven, 203 U. S. 379 (51 Law Ed.), held the defendant liable. In the briefs of the parties the Federal question is exhaustively and ably discussed and many decisions from the Supreme Court of the United States and elsewhere are cited ⁶⁶² in support of the conflicting contentions. After the most careful consideration of the case we do not find it necessary to pass upon the Federal question suggested in the briefs, but we rest the decision solely upon the Constitution and decisions of our Court.

In order that the basis and extent of the decision may be clearly understood, and that the real issue before the Court be not overladened and obscured by a mass of adjudications from other jurisdictions, based either upon dissimilar facts or upon principles of law which do not obtain in this State, it is necessary to state the controlling facts disclosed by the record and the single question which it presents. By Ordinance No. 44, approved-March 28, 1859, William H. Travers and certain associates were empowered to construct a passenger railway on Baltimore and other streets in Baltimore City. Section 9 of the Ordinance provided: “That if the aforesaid parties, their associates, successors or assigns, shall hereafter become incorporated, the rights and privileges granted to them by virtue of this ordinance shall extend to such corporation upon the conditions herein prescribed, and until such acts of incorporation shall have been obtained, such association shall have all the rights and privileges hereby granted, or the successors of said parties; without further action of the Mayor and City Council of Baltimore.” It was provided by section 11 of the Ordinance, “that the owners and proprietors of said railways shall keep- the streets covered by said tracks, and extending two feet on the outer limits of either side of said tracks in thorough repair, at their own expense, and shall free the same from snow or other obstructions, in doing which they shall not' cause to be obstructed the other portions of the street on either side of the railway tracks authorized by this Ordinance .to be constructed, and for non-compliance, the Mayor and City Council may impose such reasonable fines, not exceeding twenty dollars per square, to be collected as other city fines are now col ⁶⁶³ lected.” The Ordinance contained other provisions which have no controlling effect in this case. William H. Travers and his associates assigned all the rights, powers and privileges granted under the Ordinance to Henry Tyson and others, and by the Act of 1862, Chapter 11, Henry Tyson and others were incorporated by the name and style of the Baltimore City Passenger Eailway Gompany.

The corporation thus created was vested with all the rights, powers and privileges granted by the above-mentioned Ordinance to William H. Travers and others, “to be by said corporation held, enforced and exercised in manner and form and upon the terms and conditions, and subject to the restrictions and limitations contained in the Ordinance.” It was further provided that upon the acceptance of the Act by Tyson and his associates, “all railways, railway cars, horses, and other property of every description, real, personal and mixed, acquired and held by them for the purposes mentioned in and to carry out the provisions of the aforesaid Ordinance shall be and they are hereby vested in said corporation.” Section 12 expressly reserved to the General Assembly “the power at all times to repeal, alter, or amend this charter.” As to this section it may be said it reserved no new power to the General Assembly. It was merely a declaration ororeservation of a power already vested in it by the Constitution of 1851 (Article 3, section ál). The United Eailways and Electric Company, the defendant in this action, was formed in 1899, and by a certificate of consolidation and the Act of 1900, Chapter 319, all the rights and powers, duties and obligations, existing at the time of the consolidation, granted and imposed by law or ordinance to and upon the Baltimore City Passenger Eailway Company were vested in and assumed by the defendant. It was under an obligation imposed by the Ordinance of 1859 to keep the streets covered by its tracks and extending two feet on the outer limits of either side of said tracks in thorough repair, at its own expense.

Its charter was subject ⁶⁶⁴ to the reserve power to repeal, alter, or amend contained in the Act of 1862, Chapter 71, and to the provisions of section 48, Article 3 of the Constitution of 1S67, as follows: “All charters granted or adopted in pursuance of this section, and all. charters heretofore granted and created subject to repeal and modification, may be altered from time to time, or repealed.” By Ordinance No. 9, approved December 9, 1897, the duty of paving and repairing the railway area was imposed upon street railway companies where rights or privileges were thereafter granted to such companies to use or occupy the streets of Baltimore. All grants which have been made to the defendant company since its formation have been made subject to the paving and repairing obligations imposed by the Ordinance of 1897, and subject also to the payment of the park tax and other charges fixed by the Board of Estimates under the City Charter. As to this Ordinance and the charges fixed by the Board of Estimates no question is raised in this case. The obligations to pave and repair where tracks havé been laid under that Ordinance have been assumed by the defendant, and it has paid the park tax since its formation, — a sum amounting to more than six million, seven hundred thousand dollars — all franchise charges, and general taxes and other costs, aggregating large sums, in adapting and adjusting its tracks to paving operations.

The Act of 1906, Chapter 401, created a Paving Commission for Baltimore City, and by the amendment thereto made by the Act of 1908, Chapter 202, broad powers as to the paving and repairing the city streets with new and improved street material were conferred upon the commission, and in order to provide the money for doing the work to be done by the commission the Mayor and City Council was authorized to issue the stock of the corporation to an amount not exceeding five million dollars. This loan was approved by the voters of Baltimore in 1911. The Commission was organized and began the work of paving the streets of the City. ⁶⁶⁵ The second section of the Act of 1908, Chapter 202, authorized the Commission at its election to assess the cost of the paving, etc., “in whole or in part, upon the property binding upon such public lanes, avenues, streets or highways, according to such mode of procedure as shall be prescribed by the Mayor and City Council of Baltimore by ordinance or ordinances.” The prior Act (1906) imposed one-third of the costs upon the City and two-thirds upon the abutting property owners, and by section 8 of that Act it was provided: “That the Mayor and City Council of Baltimore be and it is hereby likewise authorized to impose upon all street railway companies occupying with their tracks parts of the beds of streets, avenues, or other highways in the City of Baltimore upon which work shall be done under this Act of the obligation to pay for said work so far as the same shall be done between the rails of their said tracks, and for a space of two feet on either side thereof, and the Mayor and City Council of Baltimore is further authorized to enforce said obligation by all such appropriate agencies, means, processes, proceedings and remedies as it may ordain for that purpose; but nothing in this Act shall be taken as in anywise relieving any such company or any other corporation or person from any obligation in its or his relations to the public highways of the City of Baltimore now cast upon it or him by law.” A suit was brought by the City under section 8, quoted above, of the Act of 1906, to recover the costs incurred by it for paving the track area of the defendant’s road on Linden avenue between Dolphin street and North avenue, and a judgment was entered in favor of the City. Upon appeal, this Court reversed the judgment without awarding a new trial, holding: Eirst, that the obligation to repair imposed by the Ordinance of 1859 did not include the obligation to repave; and, secondly, that the Act did not apply to those street railway companies upon which the obligation to repair only existed; United Railways & Electric Company v. Mayor and City Council, 121 Md. 552 . ⁶⁶⁶ In the course of the opinion in that case, Judge Constable, speaking for the Court, said: “'From the conclusion we have reached, we have not found it. necessary to consider any of the questions raised other than whether the Acts of 1906, Chapter 401, and 1908, Chapter 202, and the titles thereto are comprehensive enough to carry with them a modification of the charter provisions of the appellant.

And, therefore, we are not expressing any opinion as to whether or not it was in the power of the legislature to impose the duty upon the appellant of repaving the track area in addition to that of repairing previously imposed.” That case was decided in October, 1913, and at the ensuing session of the General Assembly the Act of 1914, Chapter 37, approved March 10, 1914, upon which this suit was brought, was passed. The declaration alleged that subsequent to the passage of the Act of 1914, Chapter 37, “the Paving Commission of Baltimore City gave to the United Railways and Electric Company the notices required by said Act to be given proir to the beginning of the work hereinafter mentioned, and the said defendant declined to do any of the work within the railway area, and thereafter the said Paving Commission proceeded to repave with improved paving, Baltimore street, including the railway area from Fremont avenue to Liberty street, being upon a portion of the franchise originally granted to the Baltimore City Passenger Railway Company by the Act of 1862, and the Paving Commission incurred for paving in the railway area, on behalf of the Mayor and City Council of Baltimore, and the Mayor and’City Council of Baltimore have paid an expense for the paving in the railway area, amounting to twenty-one thousand, four hundred and fifty-five dollars and forty-four cents ($21,455.44), as per statement hereto attached, and said Paving Commission used in said railway area no more expensive material than was in their judgment reasonably necessary. “That said work was completed on September 9, 1914, and said bill for said twenty-one thousand, four hundred and fif ⁶⁶⁷ ty-five dollars and forty-four cents ($21,455.44) was duly presented to and demand for payment made of the defendant, and payment thereof was refused, and the plaintiff further says that the defendant has refused to pay any portion of the obligation imposed upon it by said Act of 1914, Chapter 37, wherefore there is due and payable by said defendant to the plaintiff the said sum of twenty-one thousand, four hundred and fifty-five dollars and forty-four cents ($21,-455.44), with interest thereon from September 9, 1914.” At the trial below it was agreed “that the plaintiff paved Baltimore street from Fremont avenue to Liberty street, including the space in the railway area, for which this suit is brought; that all of said work was done by the Paving Commission, pursuant to the Act of 1914, Chapter 37; and that, in reference to said work, the Paving Commission complied with the requirements of said Act, and said paving consisted of asphalt and scoria block (between tracks) in place of the belgian block for the whole width of the street; and that no more expensive material or construction was used in the railway area than was, in the judgment of the Paving Commission, reasonably necessary for the proper construction of the paving of the entire street.” The Act of 1914, Chapter 37, will now be examined. It is entitled “An Act in pursuance of the power of taxation and of the police power, and the general power of the Legislature over public highways, and in the exercise of the reserved power to alter or repeal the charter of all corporations incorporated since the Constitution of 1850; imposing upon every corporation occupying with railroad or street railway tracks any portion of any public highway of Baltimore City, the obligation to pay the cost or expense of paving or repaving the portion of such highway lying within the track or tracks and for a distance of two feet outside of each outer rail of said track or tracks, whenever the said highway shall be paved or repaved with improved paving by the Paving Commission of Baltimore City, the State' Eoads Commission, the Annex Improvement Commission, ⁶⁶⁸ the City Engineer, or any other public commission, board or agency.” Then follows some, recitals which are not of controlling importance. Section 1 imposes “upon every corporation occupying with railroad or street