Hodges v. Baltimore Union Pass. Ry. Co.

• Decision Date: 13 July 1882
• Citation: 58 Md. 603
• Parties: JAMES HODGES, and others v. THE BALTIMORE UNION PASSENGER RAILWAY COMPANY, and others.
• Court: Maryland Court of Appeals

58 Md. 603

JAMES HODGES, and others v. THE BALTIMORE UNION PASSENGER RAILWAY COMPANY, and others.

Court of Appeals of Maryland

July 13, 1882

APPEAL from the Circuit Court of Baltimore City.

The bill in this case was filed by nineteen owners of property fronting or abutting or Park avenue, between Franklin and Madison streets, to enjoin the laying down of railway tracks by the respondent corporation and the other three respondents, who are respectively its president superintendent and contractor. The Court, upon the filing of the bill, laid a rule upon the respondents, requiring them to show cause why a preliminary injunction should not issue as prayed; the respondents having all answered by the day named in the order, the complainants filed the general replication and a commission issued by consent, under which a considerable amount of testimony was taken. After a full hearing upon the bill, answers, exhibits, general replication and proof, the rule to show cause laid upon the respondents was discharged, and the injunction refused. From this action of the Court this appeal is taken.

The cause was argued before BARTOL, C.J., STONE, ROBINSON, IRVING and RITCHIE, J.

Charles J. Bonaparte, and Severn Teackle Wallis, for the appellants.

An unauthorized passenger horse railway in a public street is per se an obstruction to the highway and a nuisance and will be enjoined at the suit of abutting property owners. Redfield on Railways (5 th Ed.) 318 note; Milhau vs. Sharp, 27 N. Y., 611; Imlay vs. U. Br. Ry. Co., 26 Conn., 249; B. & O. R. R. Co. vs. Strauss, 37 Md., 237; Roman vs. Strauss, 10 Md., 89; West. Md. R. R. Co. vs. Owings, 15 Md., 199.

This railway, if authorized at all, is so by Ordinance No. 150 of 1880, of the Mayor and City Council of Baltimore; or, the Special Act of Assembly, 1882, ch. 47; or, the provisions of the Act of 1876, ch. 242, under which the Company was incorporated.

If it shall be shown that no one of these separately, nor yet all of them considered together, authorized its construction, then it is a necessary corollary of our first position, that the complainants should have had the preliminary injunction prayed for in their bill.

The Ordinance does not authorize the railway, because--

1. It is wholly invalid, and a nullity, being in excess of the city's corporate powers.

2. Whatever rights it conferred, if it had conferred any, were forfeited by the failure of the persons named in it to comply with the express terms of section eleven.

1. The city of Baltimore has no greater powers over its streets than are conferred upon it by the statutes of this State. These are to condemn and open streets. (City Code 1879, Article 47, sections 1, 2, 3.) To pave and grade streets (Article 47, sections 4, 5, 6;) to provide for their drainage by sewers (Article 44,) and to clean and light them ( Article 47, section 14.)

Railroads in streets can be authorized by the Mayor and City Council only under the provisions and with regard to the terms of the Act of 1831, ch. 252. (Public Local Laws, Art. 4, sec. 856; City Code 1879, Art. 40, " Statute.")

That this Act furnishes the only authority to the Mayor and City Council to construct, or to authorize other persons to construct, railways in the streets, is obvious, from a comparison of the analagous provisions regarding the paving and grading of streets, contained in section 6, Article 47, ""Statutes," City Code 1879, which had to be supplemented by a further special authority to pave and grade streets without the assent of owners of a majority of front feet binding thereon, conferred by section 5 of the same Article (Act 1874, ch. 218, sec. 1,) to enable the city corporation to dispense with the assent of such owners.

No analogous enactment having qualified the provisions of the Act of 1831, that Act furnishes the only authority possessed by the city in regard to street railroads, and an Ordinance for this purpose, not complying with its terms, is wholly void. Roberts vs. Easton, et al., 19 Ohio St., 78; Mayor & C. C. of Baltimore vs. Eschbach, 18 Md., 276. The question is equally clear if regarded in another light. The laying of railroad tracks upon a public street involves the exercise of the power of eminent domain. Act of 1876, ch. 242, sec. 13; Douglass vs. Boonsborough Turnpike Co., 22 Md., 219, 238.

This power may be delegated to a municipal corporation, but it does not exist in such a corporation from its nature, and without express delegation by the State; and it has, in fact, been conferred upon the Mayor and City Council for certain specified purposes only, which purposes do not include those of constructing or operating street or other railways.

If this Ordinance is beyond the corporate powers of the city, it is absolutely a nullity and void. Horn vs. Mayor & C. C. of Balto., 30 Md., 218; City Code 1879, pages 7 and 8, notes; State vs. Mayor, &c., 3 Duer (N. Y.,) 119; Memphis City R. R. Co. vs. Memphis, 4 Coldw., (Tenn.) 406; Atlantic & Pacific R. R. Co. vs. St. Louis, 66 Mo., 228; Perry vs. N. O. &c. R. R. Co., 55 Ala., 413; State vs. Trenton, 36 N. J. L., 79; Chicago vs. Rumpff, 45 Ill., 90; Tugman vs. Chicago, 78 Ill., 405; Logan vs. Pyne, 43 Iowa, 524; Ill. &c. R. R. Co. vs. St. Louis, 2 Dill. (U.S.C. C.,) 70; Gale vs. Kalamazoo, 23 Mich., 344.

It is true that by the provisions of Article 41, of the Revised Code, the Mayor and City Council may assent to the use of the public streets for railway purposes by corporations already possessing, under the provisions of that Act, the power of eminent domain by express delegation from the State, but this cannot certainly be construed into authority to confer similar privileges upon persons, whether natural, or corporate, not so endowed with such rights. Indeed this would virtually be permitting the Mayor and City Council to create a corporation, which is clearly and indisputably beyond their power.

2. It is clearly shown by the testimony, that nothing was done by the five persons named in section 1 of the Ordinance, nor yet by the nine persons named in "defendants' Exhibits 2 and 3;" nor yet by the five persons named as incorporators in "defendants' Exhibit 1;" nor finally, by the respondent corporation itself, to commence "the work of laying down and constructing the railway track," mentioned in section eleven of the Ordinance, until the end of February, or beginning of March, of the present year.

The failure to comply with the terms of section eleven, wholly nullified the Ordinance without any proceeding or action by the State or city. Oakland Ry. Co. vs. O. B. & F. V. Ry. Co., 45 Cal., 365; N.Y. H. & N.H. Ry. Co. vs. B. H. & E. Ry. Co., 36 Conn., 196; In re B. W. & N. Ry. Co., 72 N. Y., 245; Brooklyn Stm. Trans. Co. vs. Brooklyn, 78 N. Y., 523; Perry vs. Calais Ry. Co., 30 Maine, 498; U. & M. Ry. Co. vs. S. C. & St. P. Ry. Co., 49 Iowa, 604; Parmalee vs. S. & O. Ry. Co., 7 Barbour, 599.

Indeed, the interruption in the exercise of their privileges by these respondents was so unreasonably long, as of itself to amount to an abandonment of them, even if there had been no express limitation of time. G. C. R. Ry. Co. vs. 13 th & 15 th Sts. Ry. Co., 7 Philadelphia, 620; Hayden vs. Stoughton, 5 Pickering, 528, 535; Wells vs. Smith, 7 Paige (N. Y.,) 22; Hamilton vs. N.Y. & N.H. Ry. Co., 9 Paige (N. Y.,) 171.

The special Act of Assembly (Act of 1882, ch. 47) does not authorize this railway, because,

1. The first section of this Act is plainly unconstitutional and a nullity. It violates distinctly the prescriptions of section 33, of Article 3, of the Constitution of this State, of 1867, which says: "the General Assembly shall pass no special law for any case for which provision has been made by an existing general law."

Full provision for the use of the streets of Baltimore city by railroad companies had been made by section 13, of chapter 242, of the Acts of 1876, at the time this Act was passed, and this "general law" covered the case of horse as well as steam railways, and regulated their rights and duties with respect to the streets of the city. Oler vs. Balto. & Randallstown Railway Company, 41 Md., 583. A clearer case of the violation of this constitutional provision could scarcely be found. State, ex rel. Webster vs. County Coms. of Balto. Co., 30 Md., 516, 520, 521; Rockhill College vs. Jones, et al., Adms., 47 Md., 1, 16; Pumphrey vs. Mayor, &c. of Baltimore, 47 Md., 145, 153; McGrath vs. State, &c., 46 Md., 631, 634; Montague, Excr., vs. State, & c., 54 Md., 481, 489, 490.

Moreover, the Act in question violates the spirit, and also the letter of section 48 of Article 3, of the Constitution of 1867, for it seems too plain for argument that the effect of this statute was to confer on the respondent corporation corporate rights different from what it could acquire under the general railroad law.

It would be a mere evasion of this provision if the formation of a corporation, under the general law which could not be formed by special Act, would authorize the Legislature to confer upon it new and different powers. New Central Coal Co. vs. George's Creek Co., 37 Md., 537 557, 558; Montell vs. Consolidation Coal Co., 39 Md., 164, 170, 171. These views are sustained by a decision upon a precisely analogous case in New York, In re B. W. & N. R. R. Co., 75 N. Y., 335; and by the construction put upon similar prohibitions in other State Constitutions. San Francisco vs. S. V. Water Works, 48 Cal., 510, 511; O. & V. R. R. Co. vs. Plumas Co., 37 Cal., 362, 363; Atkinson vs. M. & C. Ry. Co., 15 Ohio St., 38, 39; City of Wyandotte vs. Wood, 5 Kansas, 606, 607; State vs. Cincinnati, 20 Ohio Stat., 24, 25; Ex parte Pritsch, 9 Iowa, 32, 33; Frye vs. Partridge, 82 Ill., 266, 273, 274;...