Koch v. North-Ave. Ry. Co. of Baltimore City
| Decision Date | 28 January 1892 |
| Citation | 23 A. 463,75 Md. 222 |
| Parties | KOCH ET AL. v. NORTH-AVE. RY. CO. OF BALTIMORE CITY. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city.
This was a proceeding by Fred William Koch and others against the North-Avenue Railway Company of Baltimore City to enjoin the defendant from constructing its road on a certain street. The relief was refused, and plaintiffs appeal. Affirmed.
Argued before ALVEY, C.J., and MILLER, ROBINSON, MCSHERRY, and FOWLER, JJ.
Bernard Carter, I. K. Cowen, E. I. D. Cross, and H. L. Bond, Jr., for appellants.
Steele, Semmes & Carry and F. C. Slingluff for appellee.
This is a bill by abutting lot-owners to enjoin the defendant, a street railway company, from constructing its road on North avenue; and the questions are: First. Is the defendant a lawfully incorporated company? Secondly. If incorporated, has it the legal right to lay tracks of its own outside of the tracks already laid on said avenue by other railway companies? Thirdly. Have the city authorities the power to authorize the defendant to use electricity as a motive power in propelling its cars? Fourthly. Is the elevated structure proposed to be built down North street an "elevated road," within the meaning of the statute which provides that no elevated road, or any other railroad than a surface road, shall be built in or through the city of Baltimore, except under a special charter granted by the legislature? Section 186, art 23, Code.
First, then, as to the charter. The defendant was organized under the general railroad law, which provides that the certificate of incorporation "shall specify the names of the places of the termini of the road, and the county or counties, city or cities, through which such road shall pass." Section 159, art. 23, Code. The certificate filed by the defendant states that "the corporation so formed is a corporation for the purpose of constructing and running a passenger railway in the city of Baltimore, the whole of the line of said road being located in the city of Baltimore, and the termini of the said road being therein." This certificate contains the indorsement of one of the judges of the supreme bench of Baltimore city that "the said certificate is in conformity with the provisions of the law authorizing the formation of said corporation." Under this certificate, the defendant was organized, and under it the greater part of its road has been built. The contention now is that this certificate is fatally defective, because it does not designate with sufficient certainty the termini of its road. In answer to this, it is quite sufficient to say that if the certificate was defective in this respect, without meaning, however, so to decide, this defect is fully cured by the act of 1890, c. 217. This act is entitled an "Act to amend the charter of the North-Avenue Railway Company of Baltimore City, by authorizing it to lease, purchase, or aid, or to consolidate with the same;" and then it provides that "the charter of the North-Avenue Railway Company be, and the same is hereby, amended so that hereafter said company shall be authorized and empowered to consolidate with such other roads as it may cross or connect with, and to aid such roads in the construction and extension of their roads by means of subscription to their capital stock or otherwise, and to lease or purchase such other road or roads." This act not only recognizes the validity of the defendant's charter, but authorizes it to exercise certain rights and franchises such as a lawfully incorporated company only could exercise; and, this being so, we take it to be well settled that where the legislature, by a special act, recognizes a corporation as a valid existing corporation, and authorizes it to exercise corporate rights, the effect of such legislation is to cure all charter defects in the original certificate under which the company was organized. This was decided in Basshor's Case, 34 Md. 503, where the objection was made to the certificate purporting to incorporate a mining and manufacturing company as one corporation, on the ground that the law as it then stood made no provision for incorporating two distinct companies in one charter. By a subsequent act, however, the company was empowered to increase its capital stock, or to make calls or assessments upon the present capital stock; and the court said: "We regard this act as a legislative recognition of the validity of the existing corporation, and as having the effect to cure the defect, if any such existed, in the original certificate of the combining the two kinds of corporations in one charter." And we may add that this is the well-settled law in this country. In re Society for the Propagation of the Gospel, 4 Pet. 480; In re Coal Co., 7 Blatchf. 391; Bow v. Allenstown, 34 N.H. 351; 1 Mor. Priv. Corp. § 20. And this being so, we agree with the court below that the effect and operation of the act of 1890 was to dispense with any more specific naming of the places of the termini than was contained in the certificate, and leaving to the mayor and city council, under their general power of control and regulation of the streets, the right to define the route of the road and its termini.
Being then, lawfully incorporated, the question is whether the defendant has the legal right to construct its own tracks outside of the existing tracks on North avenue. And this depends upon the construction of ordinance No. 23, known as the "North-Avenue Ordinance." This ordinance is entitled "An ordinance to authorize the construction of city passenger railway tracks by the North-Avenue Company of Baltimore City on North avenue to Guilford avenue." And section 1 provides that "the North-Avenue Company of Baltimore City be, and it is hereby, authorized to lay down and construct double iron railway tracks for the purposes of its business, and in connection with double tracks now authorized to be constructed by it on North avenue to McCullough street," etc. That this section, standing alone, authorizes the defendant to construct outside tracks of its own cannot, it seems to us, be questioned. It cannot be questioned, because the right to do so is granted in terms which exclude all contention. But this right, it is said, is not only restricted, but actually taken away, by the third section. Now, what is this section? It reads as follows: "That it shall be lawful for the said North-Avenue Company of Baltimore City to use the tracks now laid on North avenue by the Baltimore City Passenger Railway Company," etc., "in the manner and to the extent to which it is lawful for the mayor and city council of Baltimore to grant the right to use said tracks; and in any case in which the said railroads are entitled to the exclusive use of said tracks, and the North-Avenue Company cannot agree with them for the joint use of their said tracks, then it shall be lawful for the North-Avenue Company to lay its rails inside and outside of the tracks of other roads." This section, it is argued, makes it obligatory upon the defendant to use the tracks of other railway...
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