Patapsco Elec. Co. v. City of Baltimore

Decision Date24 March 1909
Citation72 A. 1039,110 Md. 306
PartiesPATAPSCO ELECTRIC CO. v. MAYOR, ETC., OF CITY OF BALTIMORE.
CourtMaryland Court of Appeals

Appeal from Circuit Court No. 2 of Baltimore City; James P. Gorten Judge.

Suit by the Mayor and City Council of Baltimore against the Patapsco Electric Company. From a decree for plaintiff, defendant appeals. Affirmed.

Robert Biggs and George R. Willis, for appellant.

Albert C. Ritchie, for appellee.

SCHMUCKER J.

This is an appeal from a decree of circuit court No. 2 of Baltimore city enjoining the appellant corporation from conducting an electric lighting business within the limits of Baltimore city. The decree also required the appellant to remove from the streets and highways of the city the poles, wires, and other apparatus which had been used in connection with such business. The bill of complaint in the case alleged that the plaintiff was a municipal corporation, having full power and control over the streets, highways, lanes, and alleys within its corporate limits, and that the defendant was a corporation, created by the state of Delaware, engaged in the business of transmitting and supplying electric power by means of wires or cables; that the defendant was never granted by the state of Maryland or the city of Baltimore the right to conduct its business within the limits of the city nor had it any franchise or right to place any of its wires cables, or poles in, on, or over any of the public or private streets, highways, lanes, or alleys of the city. It is further alleged that, notwithstanding the facts mentioned, the defendant wrongfully and illegally placed and is now maintaining certain of its wires, cables, and poles in, on, and over streets, highways, lanes, and alleys, which are public highways within the limits and under the control of the city and particularly on and over certain named streets, one of which, Frederick Road or Avenue, is a turnpike road, and is by means thereof distributing its electric current to its customers not only without legal authority, but in direct violation of law. The defendant answered the bill, admitting most of its allegations, including the one that it had never been granted the right either by the state of Maryland or the city of Baltimore to conduct its business within the limits of the city, but denying the averment that it had no power or right to place its wires, poles, or cables within the city limits, and insisting that the only public street on which its poles or wires were placed was Wilkins avenue, and that all of the other streets mentioned in the bill, including the Frederick Road, were private, and not public, ones, and that it had obtained the right to use that road for the purposes of its business from the Frederick Turnpike Company. The answer also asserted that the defendant having been incorporated under the laws of Delaware for the purpose of conducting, within the state of Maryland and city of Baltimore, the business of generating and furnishing electricity, and having complied with all of the laws of this state in reference to forming corporations and having erected its poles and strung its wires on private roads and property in accordance with the regulations of the inspector of buildings of the city, it had the right to conduct its business as it was doing, and should not be subjected to interruption by the plaintiff in the manner attempted by the bill of complaint. The case having been heard on bill and answer and on oral statement of facts made by counsel in open court, the learned judge below passed a decree in conformity with the prayer of the bill, from which this appeal was taken.

The bill only charges the defendant with conducting on electric power business; but, as the court below found as a fact that it was conducting an electric light business within the limits and upon the highways of Baltimore city, and the appeal was argued before us on that basis both orally and upon the briefs, we shall assume such to have been the fact. It was also conceded that the streets occupied by the plaintiff's poles and wires other than Wilkins avenue and the Frederick Road were private streets, and that the plaintiff did not begin its operations in the city until the year 1904.

There is practically no dispute as to the facts of the case; the questions presented by the record being legal ones. The first one is whether a foreign corporation authorized by its charter to conduct an electric light and power business in Baltimore city can use the streets and highways of the city for that purpose without having first obtained a right or franchise to do so from either the city or the state of Maryland. The second question is whether the streets and avenues mentioned in the bill are streets or highways of the city within the meaning of the acts of assembly hereinafter mentioned. The third question is whether the city has the right to raise by a bill in equity the issue of the plaintiff's power to conduct its business, as it is now doing, and obtain relief by injunction.

Section 366, art. 23, Code Pub. Gen. Laws 1904, requires all corporations incorporated or to be incorporated under section 28 of that article, which it is conceded includes electric light and power companies, to "obtain a special grant from the General Assembly of Maryland and also the assent and approval of the mayor and city council of Baltimore before using the streets or highways of Baltimore city, either the surface or the ground beneath the same." By section 6 of the Baltimore city charter (Laws 1898, p. 244, c. 123), power is conferred on the mayor and city council to regulate the use of the streets and sidewalks for electric light and other wires and poles and to prohibit their erection or compel their removal, and by sections 8, 10, and 11 the power is conferred on them to grant and...

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