Huffman v. State Roads Commission of Md.

• Decision Date: 22 March 1927
• Docket Number: 46.
• Citation: 137 A. 358,152 Md. 566
• Parties: HUFFMAN ET AL. v. STATE ROADS COMMISSION OF MARYLAND.
• Court: Maryland Court of Appeals

137 A. 358

152 Md. 566

HUFFMAN ET AL. v. STATE ROADS COMMISSION OF MARYLAND.

No. 46.

Court of Appeals of Maryland

March 22, 1927

Appeal from Baltimore City Court; Albert S. J. Owens, Judge.

Petition by John R. Huffman and others, individually and as the executive committee of the Conowingo Protective Association for a writ of mandamus to the State Roads Commission of Maryland. From an order dismissing the petition and directing judgment for defendant, petitioners appeal. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Isaac Lobe Straus, of Baltimore, for appellants.

Thomas H. Robinson, Atty. Gen., and Charles McHenry Howard, of Baltimore, for appellee.

OFFUTT J.

The Susquehanna Power Company, herein referred to as the power company, a Maryland corporation, on November 2, 1925, duly executed a written "preliminary " agreement with the state roads commission of Maryland, herein called the commission, the board of public works of the state of Maryland, the county commissioners of Harford county, and the county commissioners of Cecil county, for the relocation of the bridge now spanning the Susquehanna river at Conowingo of the approaches thereto, and of certain public highways connecting therewith. Under that agreement the power company contracted: (1) To provide a highway bridge across the Susquehanna river, connecting Cecil and Harford counties having a roadway 20 feet wide between curbs, a capacity of two 20-ton trucks on each span and with a sufficient clearance above flood level to insure safety to traffic. (2) At one of the three following locations: "(a) At or about the same location as the present Conowingo bridge; (b) Below the dam site near Shure's Landing; (c) Over and supported on the dam structures." (3) To construct roads connecting each end of the proposed bridge with the present " Philadelphia-Baltimore turnpike." (4) To deed to the state roads commission a 50-foot right of way for the new roads to the new bridge. (5) To convey to the commission the new bridge if constructed separately from the dam, or if constructed as an integral part of the dam structure to lease it to the commission at an annual rental of $1, for a term equal to the term of the federal license to the power company. (6) To construct the road leading to the bridge on the east side of the river under or over the Pennsylvania Railroad tracks so as to avoid a grade crossing. And (7) until the new bridge is completed to keep unobstructed openings sufficient to take care of the normal high flow of the river. The commission and the counties on their part agreed as follows; that is to say:

"(1) They will convey to the company the present Conowingo bridge, and all land, abutments, approaches, and rights connected therewith, and constituting said bridge property and premises, together with such parts of the state and county road approaches thereto as may be necessary or useful to the Conowingo project, all to be free and clear of all incumbrances. It is understood, however, that the company will make a satisfactory substitution as shall be later agreed upon between the company and the commission for the toll houses and land appurtenant thereto at each end of the present Conowingo bridge and also for a strip of land in the Fifth district of Harford county acquired by the commission for a then contemplated road connecting with the Harford approach to said bridge.

(2) They will also duly release the said company from any and all damages resulting from the overflow by said company's dam of any and all state or county roads in the contiguous or nearby election districts of said counties which end at the water's edge, but contiguous county roads so overflowed shall be relocated and new bridges provided at the expense of the company and satisfactory to the counties; yet by said releases restraining access in themselves, respectively, to the new pool along the river created by the company's dam, and, where such access is retained, providing reasonable parking ground.

The board of public works joins in the agreement for the purpose of assenting thereto and certifying its approval thereof."

Assuming to act under that agreement the commission elected to have the new bridge constructed on the dam at Shure's Landing, something over two miles below the present Conowingo bridge. Shortly after that action had been taken, on September 1, 1926, John R. Huffman, and other citizens and taxpayers of Harford and Cecil counties, as individuals and also as constituting the executive committee of the Conowingo Protective Association, filed in the Baltimore city court, a petition for a writ of mandamus commanding and requiring the state roads commission-- "to observe, obey, and carry out the said provision, direction, and requirement of said Act of the General Assembly of 1910, c. 116, to maintain the said Conowingo bridge, as aforesaid, and, to that end, preventing and restraining the said defendant commission from carrying out and executing the said alleged agreement with the Susquehanna Power Company, and particularly from disposing of and conveying said Conowingo bridge to said Susquehanna Power Company, and from permitting, authorizing, or doing any act leading to or resulting in the relinquishment, abandonment, or destruction of said Conowingo bridge, or its removal from its present location at Conowingo, over said Susquehanna river, between said Harford and Cecil counties, and commanding and requiring said commission to obey, carry out, and give effect to the direction and requirement of said Act of the General Assembly of 1910, c. 116, with respect to the maintenance of said Conowingo bridge over the Susquehanna river at Conowingo as a part of the state roads system."

The defendant filed an answer to that petition, and to that answer the petitioners demurred. The demurrer coming on for a hearing, the court, on December 29, 1926, overruled it, and, being of opinion that the petition did not present a case upon which the writ of mandamus should issue as prayed, and the petitioners neither desiring nor applying for leave to amend their petition, it dismissed the petition and ordered judgment to be entered for the defendant, from which judgment this appeal was taken.

Broadly speaking, it will be observed that the defendant and the other parties to the agreement in this case propose and are undertaking to do two things: (1) To discontinue and abandon the present Conowingo bridge and the approaches thereto, and parts of the public highways connected by said bridge, to convey to the power company the entire present Conowingo bridge and all property and rights connected therewith and comprising the same, and to release said company from all damages occasioned by the overflow of county or state roads by the waters impounded by the company's dam; (2) to relocate said bridge and the highways connecting the same, so that the new bridge will be located at a point some two miles down the river from the present bridge, and the single question raised by the appeal is whether they have the power to do either or both of those things.

Whether they have or not depends upon the force and effect to be given to the language (a) of the Public General Laws of the state creating and defining the powers and duties of the commission; (b) to the language of the charter and statutes creating and defining the powers of the power company; and (c) to the language of chapter 116 of the Acts of 1910; and (d) to some extent to the statutes creating and defining the powers and duties of the county commissioners of Harford and Cecil counties and of the board of public works. But before attempting any analysis of those statutes, we will refer briefly to the facts of the case as set out in the petition because the case was disposed of on the theory that all the facts therein alleged are true, but that, conceding their truth, they are insufficient to warrant the issuance of the writ of mandamus as prayed.

No objection was made in this court to the right of the appellants to maintain this proceeding, if their contention, that the acts of the appellees were wholly ultra vires and void is correct, and, as we are of the opinion that in such a case they would have such a right, we need not notice those allegations of the petition which deal with the status of the several petitioners.

The petition, after referring to various public general and public local laws and charters pertinent to the questions before us, and after outlining the history of the Conowingo bridge for approximately "three quarters" of a century, in part alleges that--

"As a consequence of said conditions and the said location of said bridge at its present situation through so many years and generations, all the established and principal interests of the people, including your petitioners and many others in the same situation and plight with themselves, who have settled in communities in said Harford and Cecil counties, respectively, upon each side of the Susquehanna river in the vicinity of said Conowingo bridge, have developed, adapted themselves to, and become substantially if not vitally, dependent upon the continued maintenance of said bridge at said location. These interests of your petitioners and of the large number of said people in the said communities settled upon each side of said river, near said bridge include their agricultural, mercantile, and occupational pursuits and employments, the use and avail of their property, the convenience and enjoyment of their homes and residences, as well as the value thereof, their family, church, and educational interests and a large measure of their community and intercommunity activities and relations. That, if said bridge

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