Washington County Water Co. v. Mayor of Hagerstown

Constable, J., delivered the opinion of the Court. This is an appeal from an order overruling a demurrer to an amended bill, filed by the appellee against the appellant, asking for an injunction. This same cause has been before this Court once before, upon questions raised by the overruling of .a demurrer to a former amended bill, and is reported in 116 Md. 497 . The allegations of the present bill are in the exact language of the former, with the exception that there are found in this bill four paragraphs not included in the former, together with two new exhibits.

The prayers for relief are the same. Eor a discussion of the new points presented, we have not deemed it necessary to set out the allegations contained in the bill discussed in the former appeal, nor the prayers, for in the opinion, by Judge Pattison, they are so fully and clearly set out that it would necessitate only a repetition of what can he found in the case cited. Upon referring to that case, it will be seen that the lower Court was reversed upon its order in overruling the demurrer, because the complainant had not filed, as an exhibit with the bill, that part of the contract between the parties containing the rates, and upon which paper, his equities for relief rested. That paper was referred to as Schedule B in the supplementary ordinance and the supplementary agreement, which were filed as exhibits, and although alleged to be attached as a matter of fact was not attached.

There was a schedule disclosed in the supplementary ordinance and agreement, but, ²⁵⁴ as that dealt only with flat rates for dwelling houses, this Court was of the opinion that the demurrer was good, in the absence of this schedule alleged to contain a complete list of rates. The complainant, upon the remanding of the cause, with leave of Court, filed its amended hid., alleging, in addition to the former allegations, substantially, that Schedule B had become lost or had' been taken from the records of the complainant, and could not be found, although careful search had been made for it. There was filed an affidavit to that effect, by the custodian of the papers and records of the city, and also a photographic exhibit of the page of the hook of the minutes of the Mayor and Council, where it was alleged Schedule B had been attached with pins and glue, and had been torn from. The hill further alleges that, after searching-through the files of the only newspapers printed in Hagerstown, there was found published, in 18S2, aschedule of rates of the appellant water company for Hagerstown, duly approved according to law.

This was alleged to he a copy of