Hooper v. Baltimore City Pass. Ry. Co.

Decision Date01 April 1897
Citation37 A. 359,85 Md. 509
PartiesHOOPER, MAYOR, ET AL. v. BALTIMORE CITY PASS. RY. CO.
CourtMaryland Court of Appeals

Appeal from circuit court of Baltimore city.

Suit by the Baltimore City Passenger Railway Company against Alcæus Hooper, mayor, and others, for an injunction. From a decree granting the writ, defendants appeal. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, PAGE, BRISCOE, RUSSUM BOYD, and FOWLER, JJ.

Thomas G. Hayes and Thomas I. Elliott, for appellants.

Arthur W. Machen and Bernard Carter, for appellee.

FOWLER J.

Nearly four years ago the Baltimore City Passenger Railway Company filed a bill in the circuit court of Baltimore city for an injunction to restrain the then mayor of the city of Baltimore and others from preventing or obstructing the erection on Baltimore street, or any other street, in the city of Baltimore, along the lines of any of that company's railway tracks, of suitable iron poles for the use of what is known as the "trolley system." To the bill just referred to the then defendants demurred; but after a full hearing this demurrer was overruled, and it was held, in conformity with the opinion of the learned judge below, that the plaintiff was entitled to the relief prayed,--that is to say, that the Baltimore City Passenger Railway Company had the right under its charter to use the trolley system of propelling its cars on Baltimore street, or on any other street in that city on which it had its tracks. From that decree no appeal was taken, and the railway company at once proceeded to introduce the trolley system on its Baltimore street and some other lines. Recently, desiring to discontinue the cable system on its "Blue Line," and in its place to use the trolley system, it was preparing to make the change; and for that purpose, in compliance with certain city ordinances, permission was sought from and given to it by the city commissioner to erect iron trolley poles but the appellant, as mayor of Baltimore city, refused to allow poles to be erected as requested. Whereupon the railway company filed the bill in this case, which makes substantially the same allegations that are made in the former bill, and also alleges that the appellant intended to make use of the authority of his official position and of his influence with the police of the city to prevent said company from making the desired change in its method of traction and motive power, and that such intended forcible obstruction of the proposed work was unlawful, not only because it was an unjustifiable interference with the rights and privileges of said company granted to it by the legislature, but also because it was contrary to the decree passed in the former case. The court below ordered the injunction prayed for to issue, and the mayor and the other defendants have appealed.

Although much was said at the hearing as to the binding effect in this case of the decree in the former case, and it was very earnestly contended by the appellee company that these appellants are concluded by it, we will not stop to consider any of the preliminary or technical questions arising out of the attempted application of the doctrine of res adjudicata for we are all of opinion that conceding, as contended by the appellants, that the former decree has no force or effect whatever in this case, the facts appearing in this bill and the answer and exhibits, and the laws and ordinances by which the rights and duties of the respective parties are to be determined, fully warranted the decree appealed from. We will proceed to state the grounds of our conclusion.

The Baltimore City Passenger Railway Company, the appellee in this case, is the oldest company of the kind in the city of Baltimore, having been the first one incorporated by the legislature of Maryland (chapter 71, Acts 1861-62). Ever since its incorporation it has owned and used several railway tracks laid in the streets of that city. Under its original charter, the appellee was authorized to use only horses as a motive power, but by an amendment thereof, by the act of 1890, c. 271, it was authorized to use improved methods of traction and motive power different from horses upon its railways, and to increase its capital for that purpose. By the first section of this act it was authorized to "use upon any or all of its railway tracks in the city of Baltimore any cable system or other system of propulsion by means of stationary engines, any pneumatic motors, stored electricity motors, and any motive power, and means of traction which the mayor and city council may sanction or which shall be authorized to be made use of in the city of Baltimore by any other corporation exercising street-railway franchises thereon." Since the passage of the foregoing act almost all, if not all, the street-rail-way companies have been authorized to use the trolley system; and, in the case of the traction company, the legislature has by the act of 1892, c. 210, authorized it "to place and use upon any and all of its tracks" the trolley system. Also, by an act of the same year (chapter 232), the Baltimore, Hampden & Lake Roland Company was given authority to propel its cars in certain streets by the same system. It would seem to follow clearly from the act of 1890, c. 271, and the subsequent action of the city and the legislature in authorizing the other companies to use the trolley system that the appellee is, by the very words of that act, empowered to use that system on "any or all of its tracks in the city of Baltimore." But, in answer to what appears...

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