Zeiler v. Central Railway Co.

Page, J., delivered the opinion of the Court. The appellant contends that the ordinance mentioned in the bill of complaint is null and void, because, . 1st. It did not pass the First Branch in conformity with law, because it was put upon its passage before it had been read twice upon two separate days, as required by the ninth joint standing rule then in full force and unsuspended ; and 2nd, it did not pass either branch legally, because the question as to authorizing the Central Railway Company to extend its railway “ over almost all of the streets named in the ordinance ’ ’ had been indefinitely postponed in the Second Branch at the same session of the council; and under the twentieth joint standing rule the same subject could not be again considered at such session by amendment or otherwise. These propositions involve the consideration of two questions : First, were the rules of procedure violated as stated; and second, if they were, did such violation, under all the circumstances of the case, operate to render the ordinance null and void?

It is contended that the indefinite postponement of the “question as to authorizing it (the Central Railway Company) to .extend its railway over almost all of the streets named in the ordinance (mentioned in the bill), including Wolfe street,” precluded the possibility under the rules of passing the ordinance under consideration. The facts ate these: On the 18th May, 1896, the joint standing committee reported favorably to the Second Branch two ordinances ; one entitled “ An ordinance to authorize the Central Railway Company to lay it$ tracks on Wolfe ³¹⁹ street, Aliceanna street and certain other streets in the city of Baltimore ” (this will be hereafter referred to as the “ Wolfe street ordinance);” the other, “An ordinance to authorize the Central Railway Company to lay its tracks on E. Lexington street in the city of Baltimore.” (This will be referred to as the “ Lexington street ordinance).” On the same day both were read and laid over under the rule. On the 25th May the Wolfe street ordinance was put upon its second reading. After several amendments were offered and voted on, it was moved and adopted that “ the further consideration of the report and ordinance be indefinitely postponed.” On the 8th of June the Lexington street ordinance having passed its second reading, -"came up again, the question then being upon its passage; and was amended by striking out all of the ordinance, as reported by the committee, after the words at the end of the first section, and inserting those provisions which the appellant contends are in fact the same subject as the Wolfe street ordinance.

The rule alleged to have been thereby violated is as follows: “Rule 20. When a question shall have been indefinitely postponed, the same subject, whether originating in this or received from the other branch, shall not be acted on again or reconsidered during the session.” From the bare reading of this rule, it is clear that the indefinite postponement of a question precludes the further consideration of the subject to which the question must be referred during the entire session, whether it originated in the one branch or the other. What then was the subject under consideration upon which the vote of postponement operated ? It certainly needs no argument to show that no single feature of the Wolfe street ordinance can be separated from its context, and be properly regarded as the “ subject” under consideration.

It is true that each item in the ordinance demanded of the members, as watchful guardians of the public welfare, a careful scrutiny. Whether the Central Company should be the donee of the franchise, whether the tracks ought to be permitted on each street ³²⁰ named, whether the terms and conditions upon which the privileges were to be granted, and many other matters demanded the careful attention of the council. But none of these taken separately can properly be regarded as the “subject” postponed. Such a construction would be too narrow, and would preclude the council from considering any other measure that contained any one or more of these features.

Such new measure might be highly beneficial to the public, and taken in its entirety, wholly free from the objections of the original ordinance, and yet if it contained any feature common to both measures, the rule would have the effect of rendering the council wholly powerless. We think a more correct construction of this rule is that which prevents further action upon a subject or scheme which is substantially the same as that contained in the postponed ordinance. Now, is the scheme of the Wolfe street ordinance substantially the same as that of the Lexington street ordinance ? The donee of the franchise, it is true, in both, is the same; also the mode of propulsion ; and many of the streets in the one are mentioned in the other.

But in its entirety the scheme of the Lexington street ordinance is wholly different from that contained in the Wolfe street ordinance. The Wolfe street ordinance authorized tracks from Aliceanna street to North avenue, along the streets named; but there is no provision requiring the company to connect the new tracks with its present system, or to furnish an outlet for its passengers, on a single fare, to the centre of the city. Without such provisions the new tracks would be but a local concern, and persons using the new .road could go no further than over its limits, unless by transferring and paying an additional fare. On the other hand, by the Lexington street ordinance, the company was required to lay its double tracks down Lexington street to Gay and connect its present system by a single track with the new system of tracks; and having thus provided for a continuous road, permission was granted to lay tracks on other streets opened and to be opened and paved. • Moreover there was a more efficient ³²¹ protection of the public interests in the requirements for gutter-plates and grooved rails.

There are other features by which the two bills may be distinguished, but what we have said is quite sufficient, we think, to substantially differentiate the two measures. Neither in respect to the privileges conferred on the company, nor in the methods by which the safety, convenience and general interests of the public are protected, nor in the essential features of the two schemes are the two bills alike. They present two entirely different propositions, having, it is true, some features in common, but in their substance and entirety wholly dissimilar. We are of opinion, therefore, there was no violation of the twentieth rule in the passage of the ordinance in question.

Having thus passed the Second Branch, the Lexington street ordinance, amended as we have stated, came up for consideration in the First Branch on the eighth day of June. “ Mr. Allison moved a suspension of the rules to obtain a second reading.” The yeas and nays were called for, and fourteen members voted in the affirmative and six in the negative ; whereupon it was announced that “ two-thirds of the members having voted in the affirmative, the motion was declared adopted.” The appellants contend this decision was in violation of the ninth standing rule; which is as follows : “ Rule 9. Every ordinance or joint resolution, before being put on its passage, whether originating in this, or received from the other branch, shall have two readings on two