Webster v. Susquehanna Pole Line Co.

Pearce, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Harford County, as a Court of Equity, refusing to grant a preliminary injunction restraining proceedings by the defendants to condemn certain lands belonging to the plaintiffs, and dismissing the plaintiffs’ bill. The appeal is brought under sec. 31 of Art. 5 of the Code authorizing an appeal at such a stage of the case, as held in C. & P. Telephone Co. v. Baltimore City, 89 Md. 689 . The principal defendant is a corporation, as appears from the copy of its charter filed with the bill as an exhibit, under the name of the Susquehanna Pole Line Company of Harford County, formed on August 13th, 1907, under sec. 28, class 13 of Article 23 of the Code of Public General Laws of Maryland.

Its charter recites that it is formed “for construction, owning or operating telegraph or telephone lines in this State, and for the transaction of any business in which ⁴¹⁹ electricity, either over or through wires may he applied to any useful purpose, and especially to huy, sell, operate or lease pole lines, erect poles, string wires thereon, or on poles of other individuals or corporations on any and all streets, avenues, highways and roads, public or private, and over and under all canals and other waterways, and across any and all bridges, and to use the same either for the transmission of electric current for delivery to customers on such lines, or for transmission of current to independent vendors thereof, and for the transmission of current for any individuals or corporations producing or delivering the same to said corporations, and to sell or lease to either individuals or corporations the right to string electric wires on, or attach electric wires to, any or all poles so erected, owned or leased and to use such lines both as through lines and for local delivery, and to sell or lease wires, cables or fixtures for the transmission and use of electric current in any manner or form whatsoever, and to manufacture and deal in any and all apparatus and things required for, or capable of being used in connection with, the transmission, delivery, and accumulation, and other employment of electric energy and current, or of electricity; to build and construct and use for any of the purposes stated above, underground subways or conduits, either under or across any streets, avenues, highways, roads, canals and waterways, and to string electric wires, cables or conductors therein, and to buy dr lease from or sell or let to any other individual or corporation, the right to string and use as aforesaid electric wires, cables or conductors in such subways; to erect, operate, maintain and either lease or let the sub-stations for raising or lowering the voltage of any electricity received for it for distribution over its lines, and for the accumulation, storage, transmission and distribution of electric current, and to purchase, lease, hire, buy, sell or deal in any and all machineiy used therein or in connection therewith, or convenr ient to its economical and practical operation; * * * and to have the powers provided by section 366 of Art. 23 of the Code of Public General Laws of 1904, together with such ⁴²⁰ other rights, powers and privileges, as are by the general laws granted to all corporations formed under the general incorporation Acts of the,State of Maryland, and granted by any laws that may be particularly applicable to corporations formed under the class aforesaid.” In ^November, 1909, the defendant corporation amended its charter in the manner allowed and prescribed by law, by inserting after the clause which ends with the words “convenient to its economical and practical operation,” the following clauses: “To act as á common carrier of electrical power or energy by means of all appropriate or necessary structures, appliances, machinery, fixtures, devices, inventions or processes now or hereafter capable of being used in the transaction of any business wherein electricity or electric power or energy may at any time or place or in any manner be applied to any useful purpose. “And the public in like situation with said Susquehanna Pole Line Company of Harford County, its successors and assigns, whether individuals, partnerships or corporations, are hereby vested with and entitled. to a right to apply for and demand of the said Susquehanna Pole Line Company of Harford County, its successors and assigns, all connections and facilities without discrimination or partiality, to the extent of the just and reasonable distribution, transforming, carrying and connecting capacity and facilities of the said the Susquehanna Pole Line Company of Harford County, its successors and assigns, provided such applicant comply or offer to comply with all .reasonable rules, regulations, terms and rates of said the Susquehanna Pole Line Company of Harford County its successors and assigns, and the said the Susquehanna Pole Line Company of Harford County, its successors and assigns, shall and must supply all applicants as aforesaid in like situation as aforeaid, who may exercise their said right, with such connection and facilities as aforesaid and to the extent and upon the condition aforesaid and the said the Susquehanna Pole Line Company of Harford ⁴²¹ County, its successors and assigns, shall not impose any conditions or restrictions upon any such applicant that are not imposed impartially upon all persons, corporations or partnerships' in like situation with it; and further the said Susquehanna Pole Line Company of Harford County shall not discriminate against any such applicant engaged in any lawful business or between any such applicants engaged in the •same business by requiring as a condition, for furnishing such facilities aforesaid, that said facilities shall not be used in the business of said applicant or otherwise for any lawful purpose.” After alleging the foregoing, the bill further alleged that, “the particular business in which electricity over or through wires may be employed to any useful purpose which said defendant company purports to be transacting is the “transmission of electric power, energy or commerce, from tbe power house of the McCall Ferry Power Company a corporation incorporated under the laws of the Commonwealth of Pennsylvania, and which is constructing a hydro-electric plant for the generation of electric power or energy on the Susquehanna river at McCall’s Ferry, in York and Lancaster Counties in said Commonwealth, to points of delivery to consumers within the State of Maryland. “And the said defendant company purports to have contracted with said McCalls Ferry Power Company for the transmission of such electric power or energy so to be generated as aforesaid from the power house of said company to points in Pennsylvania and Maryland for delivery to consumers. “And said defendant company is claiming that therefore it is engaged in interstate'commerce between said States.” And also alleged that on November 23, 1909, the defendant corporation professing to act under and in virtue of the aforesaid powers, and of those claimed to be conferred by Chapter-240 of 1908 amending and re-enacting section 366 of Article 23, took proceedings under sections 251. 252 of Art 23 relating to condemnation by railroad corporations, for ⁴²² the condemnation of certain lands of the plaintiffs in fea simple, as authorized by Chapter 240 of 1908, together with an easement to cut, trim and remove all trees and other obstructions (upon other lands of the plaintiffs) which might interfere with or fall upon the land sought to be condemned in fee, but that said powers were absolutely void, ab initio and the jury were without jurisdiction to find and return any inquisition in the premises. 1st. Because the proceedings are in conflict with Article 8, section 40 of the Constitution of Maryland which forbids the taking of private property for any other than a public ■use, and are also in conflict with the fifth amendment to the Constitution of the IT. S. which declares that no person shall be deprived of life, liberty, or property without due process of law. 2nd. Because Article 23 of the Declaration of Rights of Maryland provides that no man ought to be disseized of his freehold liberties or privileges but by the law of the land; .and 3rd, because the fourteenth amendment to the Constitution of the D. S. provides that no State shall deprive any person of life, liberty or property, without due process of law.

The bill prayed for a preliminary injunction against the said corporation and also against James A. Lyle, the justice of the peace who issued the warrant to summon the jury of inquisition, and Joseph E. Spencer, the sheriff of Harford County, to restrain them from any further proceeding pending a hearing of this case. As both the appellant and the defendant corporation have in their briefs, stated certain facts almost in the same language, explanatory of the allusion' of the bill to the McCalls Ferry Power Company, we shall abstract those statements from the brief of the appellee in order to exhibit more clearly than the record does, the relation of the appellee to that eompany. “The appellee, together with a local corporation in York County, Pennsylvannia, and in Baltimore County, Mary ⁴²³ land, has been engaged' in purchasing glands or options in each of said counties for the purpose of constructing thereon, a continuous transmission or distribution line or lines of electric energy from a point on the. Susquehanna river in York County, at McCalls Eerry about ten miles above Mason and Dixon’s Line, through the counties of York, Harford and Baltimore, to Baltimore City and elsewhere in this State. “At McCalls Eerry,' the McCalls Eerry Power Company, a corporation of the Commonwealth of Pennsylvania, has nearly completed the construction of its dam across said river, and its hydro-electric generating plant, whereby it proposes to generate about 100,000 H. P. of electric energy, for sale and distribution to the public and consumers generally. The appellee and the local corporations aforesaid have contracted with said McCall Company, for the transmission of electric current about to be generated as aforesaid, to points of delivery in Pennsylvania and Maryland.” Erom this statement it is apparent that the appellee is a subsiduary corporation of -the McCalls Eerry Power Company.' As the jurisdiction of the Court to entertain this bill is challenged by the appellee that question will be considered at once.

We have seen that the bill charges that the powers under which the defendant claims to be acting are absolutely void ab initio, and that the said sheriff and jury are without, jurisdiction to find and return any inquisition whatever, and this case comes up on appeal under Code, Article 5, section 31 upon the plaintiff’s bill and exhibits, without answer, upon the order refusing the preliminary injunction. In Western Md. R. R. v. Patterson, 37 Md. 139 , the true distinction in respect of jurisdiction by injunction in such oases, is stated to be “between the cases where the proceedings are void for want of authority, and where they are irregular and defective because of some omission or neglect which may be cured pendente lite, or taken advantage of whilst in fieri ” and it was there held “that in the former cases a Court of Equity had jurisdiction but in the latter it had none.” In that case the ⁴²⁴ railroad company sought to condemn a fee simple and Patterson claimed the only power was to condemn an easement and the bill sought to arrest and restrain the proceedings before confirmation. The lower Court granted the injunction, but was reversed on appeal because, as the Court said: “There is ho necessity for an injunction, where the Courts peculiarly vested with authority over the subject are competent to relieve and it is a sufficient ground for refusing it that the complainant has an ample remedy at law.” In other words, that the extent to which the power of condemnation had been granted, and could be validly exercised by the railroad company, was a matter for the Court vested with the power of ratifying an inquisition taken under a power to exercise the right of eminent domain. In Baltimore and Havre de Grace Turnpike Co. v. Union R. R. Co., 35 Md. 231 , the latter corporation sought to condemn two crossings of the turnpike—one for the main branch of its railroad and one for a lateral road it proposed to build.

The bill charged that the award of damages for both crossings was grossly inadequate and that the crossings would irreparably injure the plaintiff’s franchises, and that the second crossing was ultra vires. The lower Court refused the injunction as to both crossings, but on appeal, this Court held that while the charter gave the power to' condemn, an easement for the main line, it gave no power to build a lateral line; and it therefore affirmed the decree as respected the main line crossing, but reversed it as to the crossing of the proposed lateral line, holding that the injunction should have issued as to that. In Page v. Mayor and City Council, 34 Md. 565 , Judge Gteasow said: “There is no doubt that where an ordinance is void, and its provisions are about to be enforced, any party whose interests are to be injuriously affected thereby, may, and properly ought to go into a Court of Equity and have the execution of the ordinance stayed by injunction.” ' Against these authorities, the appellee cites Turnpike Co. v. N. C. R. R. Co., 15 Md. 198 , as holding that want of power was a cause to be assigned against confirmation; but ⁴²⁵ Judge Tucic's language in that case shows clearly that it is not susceptible of that construction. What he said was, “no better cause could he assigned against the confirmation, than want of power to condemn the particular property proposed to he taken,” thus distinguishing between the attempted exercise of a void power, and the application of a valid power to property not within the scope of the power.

That we have here placed the proper construction upon the language of Judge Tuck, will appear from what was said in C. & P. R. R. Co. & B. & O. R. R. v. Pa. R. R. Co., 57 Md. 275 , where the Court refers to that case “as showing that the question of the power to condemn the particular property in controversy was exclusively a question for the confirming tribunal.” In Mayor & City Council v. Gill, 31 Md. 359 , Judge Bartol said: “In this State the Courts have always maintained with jealous vigilance the restraints and limitations imposed by law upon the exercise of power by municipal and other corporations; and have not hesitated to exercise their rightful jurisdiction for the purpose of restraining them within the limits of their lawful authority, and of protecting the citizen from the consequence of their unauthorized or illegal acts.” We cannot therefore dismiss this bill for want of jurisdiction in the Circuit Court for Harford County. The next and principal question in the case is, whether the taking of the appellant’s property under the authority of section 366 of Article 23 of the Code as amended by Chapter 240 of the Acts of 1908, and under the provisions of the Charter of the appellee as hereinbefore set out, is a taking for a public use within the definition of that term adopted by this Court in the recent case of Arnsperger v. Crawford, 101 Md. 247 , upon which case the appellants seem largely to rely in support of their contention that the proposed use is nót a public use. ■ Section 366 of Article 23 gives to any corporation formed, as the appellee is, under class 13, section 28 of Article 23, the power “to acquire by condemnation any property right ⁴²⁶ whatsoever necessary for its purposes in its discretion, either in fee simple, or the use thereof in fee simple, or for a less estate” either in the manner prescribed in sections 251 and 252 or in sections 360 to 365 of that article. But notwithstanding these broad provisions, the power conferred can only be exercised for a public use as above defined, because the constitution forbids the taking of private property for a private use, and the Legislature cannot make a private use, public, by declaring it to be such, or by authorizing the exercise of the power of eminent domain for any use which the Courts may determine not to be a public use.

The exact subject-matter determined in the Arnsperger Case, supra, was that land cannot be constitutionally condemned for a private road for 'the use of particular individuals, who may lawfully exclude the public therefrom, and in so determining, it was held, in accordance with what we deemed to be the best authorities, that “the test whether a use is public or not, is whether a public trust is imposed on the property; whether the public has a legal right to the use. which cannot be gainsaid or denied, or withdrawn at the pleasure of the owner,” and that “the expressions, public interest and public use are not synonomous.” The amended Charter of the appellee was obviously adopted for the purpose of removing any question whether the original charter measured up to that test, and in the belief that the amended charter accomplished that purpose, and it will therefore be necessary to consider only the latter amended charter. It specifically declares the corporation to be formed “to act as a common carrier of electrical power or energy by means of all appropriate or necessary structures-appliances, devices, or processes, now or hereafter capable of being used in the transaction of any business wherein electricity or electric power or energy may be applied to any useful purpose,” and it expressly “vests” in “the public in like situation with said Susquehanna Pole Line Company of Harford County, its successors and assigns, whether individuals, partnerships or corporations, a right, to apply for and demand of said com ⁴²⁷ pany, all connections and facilities, without discrimination or partiality to the extent of the just and reasonable distributing, transforming, carrying and connecting capacity and facilities of said company.” It declares that said company “shall and must supply all applicants in like situation as aforesaid, who may exercise said right with the connections and facilities aforesaid, provided such applicants comply or offer to comply with all reasonable rules, regulations, terms and rates of said company;” and it declares that said company shall not impose any conditions or restrictions upon any such applicant not imposed impartially upon all other persons, partnerships or corporations in like situation; and that said company shall not discriminate against any such applicant or between any such applicants, engaged in any lawful business, by requiring as a condition for furnishing such facilities that the same shall not be used in the business of said applicant, or otherwise for any lawful purpose.” The language of the amended charter as given above is not that of the appellee’s counsel, and as such subject to the possible suspicion that it was chosen in the interest of the appellee rather than that of the public; but it is the language of the Legislature of the State, to be