Purnell v. McLane

• Decision Date: 22 January 1904
• Citation: 56 A. 830,98 Md. 589
• Parties: PURNELL v. McLANE, Mayor, et al.
• Court: Maryland Court of Appeals

56 A. 830

98 Md. 589

PURNELL v. McLANE, Mayor, et al.

Court of Appeals of Maryland

January 22, 1904

Appeal from Court of Common Pleas; Henry D. Harlan, Judge.

Application for mandamus by J. Hurst Purnell against Robert M. McLane and others. From an order refusing the writ, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.

Joseph C. France and George R. Willis, for appellant.

W Cabell Bruce, for appellees.

PEARCE J.

This is an application for a mandamus. The purpose for which the writ is sought is to compel Robert M. McLane, mayor of Baltimore City, Harry F. Hooper, city register, and A. Roszel Cathcart president of the board of fire commissioners, constituting the electrical commission of Baltimore City, to issue to the petitioner a permit authorizing him to use a duct in the conduits of said city on Sharp street from Lombard to Pratt. The petitioner alleges that he is engaged in selling and furnishing electricity to the public, and that, other than himself, there is no person engaged in the business of manufacturing electricity exclusively for sale in Baltimore City, except a corporation known as the United Electric Light & Power Company; that all wires used in transmitting electricity must, under the law, be placed in conduits belonging to said city, and laid under its streets, lanes, and alleys; that such conduits have been provided by the city under authority conferred upon it by chapter 200, p. 276, of 1892, and by chapter 123, p. 241, of 1898, known as the "New Charter," and codified as article 4 of the Code of Public Local Laws of Maryland; that in accordance with the power so conferred the mayor and city council enacted Ordinance No. 107, establishing an electrical commission, and providing for the construction, maintenance, and regulation of said conduits; that by section 11 of said ordinance said commission is authorized and directed to rent space in said conduits to any applicant, who shall comply with the conditions prescribed by said ordinance, and such further conditions as should be specified thereby; that on November 10, 1902, he applied to the electrical commission for space in said conduits from the premises where his plant is established to the manhole at the corner of Baltimore and Sharp streets; that the necessary permit was granted, and that, having complied with all the conditions of law, he introduced his wires in said conduits, and has been ever since engaged in prosecuting his said business; that on August 4, 1903, desiring to extend his business, he applied to said commission for additional space as above stated, offering to pay the rental established, and to perform and abide by all the conditions that have been or may be by law established for the use of said conduits, but that his application has been opposed by the United Electric Light & Power Company, and the permit has been refused, solely, as he understands, on the ground that, not being a corporation, and not having maintained overhead wires in said city at the time of the passage of Ordinance No. 107, he is not entitled, without special legislative or municipal authority, to rent space in the city conduits.

The defendants answered, admitting the allegations of the petition, except that, first, they deny that he complied with all the conditions of law before introducing his wires into the conduits under his first application, and they allege that the then electrical commission inadvertently and improvidently granted the permit; second, they deny that he has offered, in connection with his second application, to comply with all the conditions of law; and, third, they aver, in explanation of their denials, that he failed to comply with all the conditions of law, in that he has never obtained, either from the General Assembly of Maryland or from the mayor and city council of Baltimore, pursuant to sections 7, 8, 9, 10, 11, and 37 of the new charter, in any lawful manner, the franchise or right to use any of the streets, lanes, or alleys of said city for his wires. To this answer the petitioner demurred. The demurrer was overruled, and, the petitioner standing on his demurrer, the mandamus was denied, and the petition was dismissed.

The precise point raised by the appeal is thus stated in the appellant's brief: "Can the commission rent conduit space only to such applicants as have, by ordinance or legislative act, some special authority to use the city streets?" The right to produce and sell electricity as a commercial product without legislative authority is conceded by the appellees; that business not being a prerogative of government, but open to all, like the manufacture and sale of any other ordinary article of commerce. And the appellant concedes that the use of the city streets for delivering his product to the consumer is a franchise, and that he cannot make such use of the streets without the permission of the state or of the municipal government, acting under legislative authority. These mutual concessions rest upon accepted authority. In Bank of Augusta v. Earle, 13 Pet. 595, 10 L.Ed. 274, franchises were defined by Judge Taney as "special privileges conferred by the government on individuals, and which do not belong to the citizens of the country generally of common right; *** and in this country no franchise can be held which is not derived from a law of the state." In State v. Cincinnati Gas Co., 18 Ohio St. 262, it was said: "It cannot be doubted that the right to use the streets of a city for the purpose of laying pipes to convey gas, whether in the hands of a private corporation or a natural person, is a franchise and as such can only emanate directly or indirectly from the sovereign power of the state. This franchise may be granted directly by the state, or by a municipal corporation, if it is clothed with power to make the grant. Such power in the municipality must either be expressly granted or arise from the terms of the statute by implication so direct and necessary as to be clearly conferred." In Jersey City Gas Co. v. Dwight, 29 N.J.Eq. 242, the court said: "Any one of the defendants, in point of right and privilege, is the equal of the complainant in this respect. The plaintiff is vested with no...