City of Hagerstown v. Hagerstown Ry. Co. of Washington County
| Decision Date | 31 March 1914 |
| Docket Number | 41. |
| Parties | MAYOR AND COUNCIL OF CITY OF HAGERSTOWN v. HAGERSTOWN RY. CO. OF WASHINGTON COUNTY. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Washington County, in Equity; Robert R Henderson, Judge.
"To be officially reported."
Bill by the Mayor and Council of City of Hagerstown against the Hagerstown Railway Company of Washington County, Maryland. From a decree dismissing the bill, complainant appeals. Affirmed.
Alexander R. Hagner, of Hagerstown, and S. S. Field, of Baltimore, for appellant. James Piper and Francis K. Carey, both of Baltimore (Carey, Piper & Hall, of Baltimore, on the brief) for appellee.
The appeal in this case is from a decree of the circuit court for Washington county dismissing the bill of complaint of the mayor and council of Hagerstown to enjoin the Hagerstown Railway Company of Washington County, Md., from erecting or replacing poles in the streets, etc., of Hagerstown and stringing wires thereon for the purpose of supplying light and power to the citizens of that city, and from furnishing electric light and power therein. The case was heard upon bill, answer, and evidence, and while there is very little if any, dispute as to the material facts, a statement of them is necessary for a clear and accurate presentation of the propositions involved.
The Charter of Hagerstown (sections 171 and 182 of article 22 of the Code of Public Local Laws of 1888) provided that the mayor and council should have power to pass all ordinances necessary for the good government of the town; to prevent remove, and abate all nuisances or obstructions in or upon the streets, alleys, etc.; "to make and establish grades upon the streets and highways of the town;" to cause the sidewalks along the streets to be graded and paved and "curbs to be set and gutters laid"; to grant licenses to hawkers and peddlers, and regulate the sale of wares and merchandise on the streets; to regulate and tax carriages and other vehicles used in the town; and to provide for laying out, opening, closing, etc., any street, etc., in the town. Section 183 provides for the appointment of street commissioners, who are required to elect one of their number as president, to keep a full and accurate record of all their proceedings, and to report every three months to the mayor and council an itemized account of all money expended by them. The clerk of the mayor and council is required to serve as "clerk of the board of street commissioners," who have charge of the repairs and improvements of the streets, alleys, etc., and, by section 191 and the act of 1892, c. 65, are given control of the lighting of the town, with power to provide the material, employ the necessary labor, and make all needed provisions therefor, and the further power "to contract with any person, corporation or association for such lighting," provided that the cost of lighting under any contract does not exceed $5,000 per year, and the contract is not made for a longer period than ten years.
In 1893 the board of street commissioners entered into a contract with the Schuyler Electric Company for the lighting of the streets of the city. On the 10th of May, 1895, the mayor and council passed an ordinance authorizing Powell Evans, his heirs, and assigns, "for the purpose of supplying electric current for all purposes, to erect and maintain poles on all streets, alleys, and city properties within the city limits of Hagerstown, and to string and maintain electrical conductors and other wires, and to place and maintain all necessary apparatus on said poles for said purposes; *** to make connections with all buildings in the city limits, and erect and maintain in the city limits power plants for providing for the distribution of electric current;" to connect with any system or systems outside of the city limits for supplying electric current, and to sell, lease, or rent electric current and apparatus for making use of the same; "provided that electric current for motive power for machinery be supplied in the city of Hagerstown as a necessary condition of the use of the powers conferred in this ordinance." Section 2 of the ordinance provided that the location of the poles should be approved by a committee consisting of the mayor and two members of the city council, to be selected by the mayor, who were authorized to order the location of the poles to be changed. Section 3 required Evans, his heirs and assigns, to enter into a bond to remove the poles if they were not used "in one year after erection for supplying electric current," etc. By section 4 the mayor and city council reserved the right to string on said poles the wires connected with the fire alarm system of the city, and provided that the franchise granted by said ordinance was to be accepted upon that condition, and section 6 authorized Evans, his heirs and assigns, to purchase, etc., any system for supplying electric current then "constructed in the city limits," and authorizing the corporation owning any such system to sell the same to Evans, his heirs and assigns.
Powell Evans entered into a contract with the Schuyler Electric Company for the purchase of its plant, contracts, etc., and on the 11th day of November, 1895, the board of street commissioners passed an order in which, after referring to the contract made with the Schuyler Company, and reciting that said company had contracted to sell its plant, franchises, contracts, etc., to Evans, it was ordered that the following contract "take the place" of the contract which the board had entered into with the Schuyler Company. The contract referred to in the order was executed on the 11th of November, 1895, by Evans and the street commissioners. It provided that Evans should "have the contract for lighting the streets *** with the Schuyler or any other equally as good system" for the term of five years, beginning on or before January 1, 1896, as set out in said order, provided Evans, in the meantime, purchased, by deed duly recorded, the "present electric plant complete in this city" and "has given" a bond to the commissioners, in the penalty of $5,000, to secure the faithful performance of his contract. After specifying the kind of lights to be furnished, the amount to be paid by the city for each light, that the lights were to be located and maintained on good wooden poles, etc., satisfactory to the commissioners, at the points on the streets where they were then located, unless otherwise ordered by the commissioners, and that the commissioners should designate the places at which new lights were to be located, the contract further provided that Evans should also furnish and maintain in the city "an incandescent lighting system," satisfactory to the street commissioners, "of not less than 1,200 lights, for commercial and private purposes," and furnish lights to consumers in the city on terms not to exceed the rates therein stated, and that Evans should have the right to sell "his property and rights in Hagerstown," including his rights under that contract, and to have his bond released, provided his assignee gave a bond in the penalty of $5,000 for the faithful performance of said contract.
The appellee, the Hagerstown Railway Company, was incorporated under the general incorporation law in 1896 for the purpose of constructing and operating a passenger railway in Hagerstown and Washington county. Its charter was amended by the Act of 1896, c. 419, which authorized the company to issue bonds and to acquire by purchase or condemnation land necessary for the construction of its railway. Section 111 of article 23 of the Code of 1888 was amended by the Act of 1894, c. 308 (Code of 1904, art. 23, § 143), so as to provide that any electric light company formed under that article should have the power to manufacture, furnish, and sell electric light and power in any city or town of Kent, Somerset, Carroll, Montgomery, or Washington counties for lighting the streets, roads, public or private buildings, or for motive power or other purposes, and authority to build its lines along and upon the streets, roads, etc., subject to such ordinances as might be passed by any city or town for filling up or restoring such streets or roads to their normal conditions, provided that "in the construction, maintenance, removal and repair of all such lines and appliances in Washington county, tthe same shall be done under such regulations as the mayor and city council of Hagerstown, or the county commissioners of said county, having jurisdiction, shall prescribe." On the 28th of February, 1898, the certificate of incorporation of the appellee was amended under the provisions of the general incorporation law, and the new certificate declared that the corporation was formed for the purpose of constructing and operating a railway, etc., and also "for the purpose of manufacturing, generating, selling and furnishing electricity for lighting, heating, power and other purposes, and to buy, purchase, construct, build, equip and operate such plants, works and machinery as may be necessary for such purposes." The railway company then acquired by assignment the electric plant, contracts, and franchises of Powell Evans in Hagerstown, and on the 1st day of March, 1898, executed its bond to the mayor and council of Hagerstown, in the penalty of $5,000 for the faithful performance by it of the contract between Evans and the board of street commissioners. On the 29th of March, 1898, the board of street commissioners passed the following resolution:
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