Anne Arundel County Com'rs v. United Ry. & Electric Co.

• Decision Date: 20 January 1909
• Citation: 109 Md. 377,72 A. 542
• Court: Maryland Court of Appeals
• Parties: ANNE ARUNDEL COUNTY COM'RS et al. v. UNITED RY. & ELECTRIC CO.

72 A. 542

109 Md. 377

ANNE ARUNDEL COUNTY COM'RS et al.

v. UNITED RY. & ELECTRIC CO.

Court of Appeals of Maryland.

Jan. 20, 1909.

Appeals from Circuit Court, Anne Arundel County; James R. Brashears, Judge.

Bill by the United Railway & Electric Company against the County Commissioners of Anne Arundel County and others. From an order overruling the demurrers to the bill, defendants appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ.

James W. Owens, for Anne Arundel County Com'rs. James M. Munroe and Joseph C. France, for United Railway & Electric Co. Samuel K. Dennis, for Walter W. Crosby, Chief Engineer.

SCHMUCKER, J. The appeals in this case are from an order of the circuit court for Anne Arundel county overruling the appellants' demurrers to the appellee's bill for an injunction. The bill had been filed by the complainant in its twofold capacity of a state and county taxpayer and the owner of property especially affected by the proceeding, which it sought to enjoin. The main purpose of the injunction asked for by the bill was to restrain the defendants from proceeding with the execution or performance of a contract for the repaying of First street, commonly known as "Light street No. 2," in the village of Brooklyn, purporting to have been made in accordance with a plan and specifications prepared under the supervision of the state geological and economic survey for such repaving. The bill of complaint also prayed that section 190 of chapter 654, p. 302, of the Acts of the General Assembly of 1908, be declared void in so far as it purports to authorize the county commissioners of Anne Arundel county to compel the appellee to remove and relocate its existing tracks and overhead work on First street and repave certain portions of the street with vitrified brick, and that the county commissioners be restrained from proceeding thereunder. Both defendants demurred to the bill, but their demurrers were overruled by the order appealed from, which directed the injunction to issue as prayed. Before the hearing of the demurrers, the bill was amended by consent by adding thereto certain additional allegations of fact to be treated as if they had formed part of the bill when it was filed. Those allegations will be treated as part of the bill for the purposes of this opinion.

The principal allegations of the bill, as amended, are: That the complainant, as successor of the Baltimore & Curtis Bay Railway Company, owns and operates a double-track electric railway over the portion of First street sought to be repaved which extends about 1,000 feet southerly from the county terminus of the long bridge. That the tracks on First street were laid by its predecessor in strict conformity with the provisions of its charter (chapter 505, p. 557, Acts 1890), which required them to be laid on the margin of the streets or roads occupied by them so as to leave a width of at least 14 feet for vehicular traffic "unoccupied and undisturbed by said track or tracks." That at the time the tracks were laid First street was private property and had not become a public road or street of Anne Arundel county, and therefore the complainant had acquired a private right of way over it by a deed, from its owner, the South Baltimore Harbor & Improvement Company, of which a copy is filed with the bill as an exhibit. At the time the charter of complainant's predecessor was granted, and when the tracks were laid on First street, and ever since then, section 344 of article 23 of the Public General Laws of 1904 of Maryland has provided that: "In all cases where any passenger railway company uses the road bed or any portion thereof of any turnpike, street or road in any county of this State, it shall at all times keep in good and proper repair not only the portions of said turnpike, street or road which may be embraced between the rails of its track but also that part which shall extend for a distance of two feet on either side of said rails." That the complainant has fully complied with not only the requirements of its charter as to the location of its tracks, but also with the provisions of the law in reference to keeping in repair the streets and roads on which they are located, and it is willing to continue to do so.

The bill further alleges: That the defendants the county commissioners and Walter W. Crosby, as chief engineer of the state geological and economic survey, have entered into an arrangement for paving the portion of First street traversed by the complainant's railway tracks, which is now an unpaved country road, with vitrified brick, and the county commissioners have awarded the contract therefor to H. E. Gray in pretended but not real conformity with the provisions of chapter 225, p. 388, of the Acts of 1904, commonly known as the "Shoemaker road law." That the said arrangement for so repaving First street is illegal and void because the Shoemaker road law contemplates the construction or improving of public roads and highways at the joint expense of the state and county with macadamized or telford or other stone road or a road constructed of gravel or other good material; but it neither contemplates nor authorizes the paving of roads with vitrified brick, which is far more expensive than either "telford" or "macadam" systems of road construction, which use broken stone and are similar in character. And that a brick pavement would not be suitable for a road like First street. It is further alleged: That even if an arrangement for the paving of First street with vitrified brick could be made under the provisions of the Shoemaker road law, the defendants in their attempted arrangement to utilize that law have failed to comply with its material provisions, in that: (a) No written notice was given to the chief engineer of the survey on or before the 1st of March, 1908, of the intention of the county commissioners to improve First street under the provisions of the act, as required by its first section, (b) Nor do the records of the survey show that there was ever any application made to it for or any consideration or approval by it of the paving or macadamizing of said street, as required by section 2 of the act. (c) The advertisement for bids for the paving, having run for but 12 days, was not made in conformity with the provisions of section 6 of the act, which required it to be published for 2 consecutive weeks, (d) The contract for said paving was awarded by the commissioners at the price of $12,100 (being $506 in excess of the estimate therefor of $11,594 made by the chief engineer of the survey), in direct violation of section 7 of the act, which provides that "if all bids exceed the amount specified no contract shall be given." (e) That there is an agreement between the county commissioners and the chief engineer of the state geological and economic survey under which the county commissioners are to receive from the state, not one-half of the cost of paving the street with vitrified brick, but one-half of what a macadam road would cost if it were to be constructed in place of the brick pavement and no more.

The bill further alleges: That the county commissioners, under the assumed authority of Acts 1908, c. 654, have served upon the complainant a written notice requiring it at its own expense to take up its tracks from the margin of said street and relay the same in the middle of the street with girder rails, instead of the T-rails now in use, and to pave between the tracks as relaid and for two feet on the outside of the outer rails with vitrified brick, all of which will involve the new construction of 1,600 feet of the railroad at an expenditure of about $16,000 upon a line which is even now operated at a loss. That the portion of said act under which the county commissioners assumed to act in serving said notice is found in section 196, and is as follows: "The county commissioners shall have authority to compel any trolley or street railway company having or laying tracks on the public roads, avenues or streets of Anne Arundel county to change the rails and location of said tracks so as to make said roads, avenues or streets safer or better for travel, and to compel the said company or companies to pave and keep in repair the roads, avenues or streets covered by said tracks and extending two feet on the outer limits of either side of said tracks with the same kind of paving material with which the remaining portion of said roads, avenues or streets may be paved. The failure of any street railway company to comply with the provisions of this section shall be a misdemeanor and punishable by a fine of twenty dollars a day for each day the said railway company shall neglect to comply with the provisions of this section." The bill then charges that the said portion of Acts 1908, c. 654, is invalid under section 29 of article 3 of the Maryland Constitution because the title to the act, which is a local law purporting to amend the road law of Anne Arundel county, gave no notice that it embodied an attempt to amend the charter of complainant's predecessor, by which the location of the tracks on said street is fixed and defined, or to alter the complainant's obligation as defined by section 344 of article 23 of the Code of 1904, or to impose upon complainant the cost and expense of reconstructing its tracks and overhead work, or to attempt to make it a misdemeanor for it to exercise its charter rights. It is further charged that said portion of the act of 1008 is unconstitutional because it is special legislation intended to apply to and applicable at the time of its passage only to the case of the complainant. In that connection it is further alleged that at the session of 1908 there was introduced on February 21, 1908, a bill, known as "House Bill No. 273," to require the Baltimore & Curtis Bay Electric Railway Company to move its tracks on First street in...