Balto. City v. Balto. Co. Water Co. , 95 Md. 232 ( 1902 )

The bill in this case was filed on the 5th day of December, 1901, in the Circuit Court No. 2, of Baltimore City, by the appellee, The Baltimore County Water and Electric Company of Baltimore County against the appellants, the Mayor and City Council of Baltimore, Thomas G. Hayes its Mayor, and Thomas F. Farnan, Deputy Marshal and acting Marshal of Police, for an injunction, to restrain the appellants, from preventing, obstructing or in any way interfering with the laying of water-mains and pipes on certain streets in a portion of the city of Baltimore which was formerly a part of Baltimore County, but which was annexed to the city by what is known as the Annexation Act of 1888.

The appellee is a corporation formed by the consolidation of two companies to wit, The Catonsville Water Company and the Chesapeake Electric and Water Company of Baltimore County, and by articles of agreement dated the 7th day of May, 1900, succeeded to all the rights and powers of these two companies. The Catonsville Water Company was duly incorporated by chapter 100 of the Acts of 1886. It will appear from an examination of this Act that by the second section thereof the Company was empowered to purchase, lease, hold, use and possess such lands, water-rights, powers and privileges, tenements, goods and chattels as may be necessary for collecting streams of water, elevating, preserving, using and distributing the same, as the means of abundantly supplying with pure water the public and private houses, streets, squares, lanes, alleys and other places in the village of Catonsville and also in the First Election District of Baltimore County, and for properly disposing of the water and such other powers as may be necessary to carry into effect the purposes of this Act.

The fifth section of the Act provides that the company shall have power to purchase and lease property, real and personal, water-rights, powers, privileges, and to erect thereon all suitable reservoirs, dams, tunnels, conduits, fountains, engines and machinery, buildings and works of the company, to collect the water and dispose of the same for the purposes hereinbefore stated to excavate the earth and lay pipes for water in the village of Catonsville and the First Election District of Baltimore County.

The Chesapeake Electric and Water Company was formed by the consolidation of the Chesapeake Water Company and the Bay View Electric Light and Power Company of Baltimore County, by chapter 432 of the Acts of 1894.

On the 6th of April, 1901, the appellee made application to the City Engineer for a permit to lay certain mains and pipes in a certain portion of the First Election District of Baltimore County in order to extend its water business and to supply its customers, according to its alleged charter rights. This application was refused by the City Engineer of Baltimore City, and hence this proceeding. The Court below directed the injunction to issue, and the appeal is taken from this order.

The first question presented on the appeal is one of jurisdiction of the Court as to the remedy adopted. The appellants contend that the only remedy open to the appellee under the facts of this case was by petition to a Court of law for a writ of mandamus to compel the city officials to issue the permit. There is nothing in this case to distinguish it in any material way from the recent cases of Chesapeake and Pot.Telephone Co. v. Balto. City, in 89 Md. 716 and 90 Md. 644, where it is held that injunction is the proper remedy. The rule there stated had been adopted in a number of cases in this Court and elsewhere. Page v. Mayor, c., 34 Md. 567; Hooper v. CityPassenger R.R. Co., 85 Md. 509; State v. Latrobe,81 Md. 222.

The second contention relied upon by the appellants and the important question in the case, briefly stated, is this: Was the power and authority to lay pipes and conduits for water in the town of Catonsville and in the First Election District of Baltimore County, given the appellee by the Legislature of the State by the Act heretofore mentioned, repealed or impaired by what is called the Annexation Act of 1888, ch. 98, or by the adoption of the new city charter, Act of 1898, ch. 123, in so far as it relates to the annexed territory.

Now it is admitted that the territory involved in this dispute, and which formerly constituted a portion of the First Election District of Baltimore County, is now a part of Baltimore City. It is conceded that if the rights, privileges and franchises granted the appellee company in this annexed territory, have not been changed or repealed by subsequent legislation, they now exist as originally granted. We have carefully examined and considered the several statutes (the Annexation Act, 1888, and the new city charter, 1898), relied upon by the appellants, and find nothing to sustain the contention urged by them in this case. On the contrary, we are all of the opinion that by the express terms of the Act of 1888, ch. 98, sec. 25, the rights and powers of the appellee company are fully reserved and protected. By the 25th section of this Act, it is clearly provided that before the Mayor and City Council of Baltimore shall lay any water pipes along any street, road, lane or avenue, in the territory mentioned in the second section of this Act, upon which the Catonsville Water Company has laid its pipes and other water appliances, the said Mayor and City Council of Baltimore shall, if said company desires to surrender said pipes and water appliances in such street, road, lane or avenue to the Mayor and City Council of Baltimore, pay to the said company the fair value of its water pipes and other water appliances constructed in said street, lane, road or avenue, and such actual damages to the said company as shall be caused by the acquisition of said pipes and appliances by the Mayor and City Council of Baltimore; and the amount so to be paid, if the said company and the said Mayor and City Council of Baltimore cannot agree in reference thereto, shall be ascertained by a majority of a board of three (3) arbitrators, one to be appointed by the Mayor and City Council of Baltimore, and one by said company; and the two arbitrators thus appointed shall appoint the third arbitrator; and if they cannot agree upon such third arbitrator, the latter shall be appointed by the Governor of the State. The provisions of this Act were subsequently embodied in the city charter, Act of 1898, ch. 123, sec. 6, with the following proviso: "Whenever the Mayor and City Council of Baltimore shall extend its water mains for the purpose of supplying water therein into the territory of Baltimore County previously occupied by some other water company then supplying water to residents of such locality, said Mayor and City Council of Baltimore, before it shall supply water to users in said territory, shall purchase or condemn the water pipes and rights of said local water company. To purchase all the property, rights, estates and privileges of any chartered company authorized to introduce, or which may hereafter be authorized to introduce, water into said city, upon such terms as may be agreed upon by the city, and such corporation or corporations, in the manner prescribed in their respective charters, or in the absence of such provisions, as shall be agreed upon by the said city and such corporation or corporations; and such corporation is authorized to execute a conveyance to the city of all the franchises and property of said corporation; and all such rights, privileges and franchises shall be vested in the Mayor and City Council of Baltimore, to be held, exercised and enjoyed by the said city as fully in every respect as might or could have been done by any such corporation or corporations under their respective charters.

It also appears that by the very language of the Act of 1898, ch. 123, sec. 2 (the new city charter) that this Act shall not affect or impair any right vested or acquired and existing at the time of the passage of the Act, * * nor shall the Act impair, discharge or release any contract, obligation, c., c., whatever now existing.

And it is further provided by the third section of the same Act that all laws now in force relating or applicable to the Mayor and City Council of Baltimore or the city of Baltimore, and not included in this Act, and not inconsistent with said Act, and all ordinances of the Mayor and City Council of Baltimore now in force and not inconsistent with this Act, shall be and they are hereby continued until changed or repealed respectively, by the General Assembly of Maryland or the Mayor and City Council of Baltimore, provided, that all Acts or parts of Acts passed at the session of the General Assembly of Maryland in the year eighteen hundred and ninety-eight, relating to the Mayor and City Council of Baltimore or the city of Baltimore, or in any manner amending or adding to Article 4 of the Code of Public Local Laws, as said article existed before the passage of this Act, shall in no wise be affected by the passage of this Act, but all such laws shall have the same force and effect as if this Act had not been passed. The provisions of this Act shall not have the effect to enlarge or extend in any manner the rights or privileges of the Mayor and City Council or other authorities of the city of Baltimore outside of the limits and boundary of said city, beyond or in addition to those now limited to, and exercised by said city under the present laws.

In the case of United Railways v. Hayes, c., 92 Md. 490, we had occasion to construe the third section of the new city charter, where it was contended that the third section repealed by implication a certain ordinance of the city of Baltimore under which the railway claimed it was authorized to lay its track on Wilkins avenue from Brunswick street to the city limits. The ordinance was in force at the adoption of the city charter and we there held that as the right under the ordinance to lay the track was a right existing when the new city charter was passed and adopted by the Legislature it continued in force and was not repealed. "This we think," said the Court, "is made manifest in view of the second section which provides that the charter shall not affect or impair any right, vested, acquired or existing" at the time of its adoption. "Reading sections two and three of the new charter together, we think that so far from there being a repeal of the ordinance in question by implication, it is quite obvious that no repeal was contemplated."

Applying the same construction given the statute there under consideration to the case now before us, we think it is clear that there has been no repeal of the chartered rights granted the appellee by the Legislature of the State, and they exist as they were originally granted. The city has the undoubted right to purchase, or condemn the water rights of the appellee, in the annexed territory, as provided by the Acts, but it cannot destroy those rights, or deprive it of the rights granted by the Legislature of the State and reserved by the express provisions of the aforementioned Acts. We find therefore no error in the order of the Circuit Court of Baltimore City, passed on the 25th of January, 1902, and it will be affirmed.

Order affirmed, with costs.

(Decided June 18th, 1902.)