Dulaney v. United Railways & Electric Co. ( 1906 )

The appeal in this case is from a decree of Circuit Court No. 2, of Baltimore City, sustaining the demurrers of the appellees, as defendants below, and dismissing the bill of complaint. The primary purpose of the bill was to procure an injunction restraining the United Railways and Electric Company of Baltimore from constructing and maintaining a switch from its main track on West Lombard street across the sidewalk to the warehouse No. 407 West Lombard street owned and used by the Gaither's City and Suburban Express Company. The bill incidentally asked that the Ordinance of the Mayor and City Council of Baltimore authorizing the construction of the switch be declared void. The appellants are the respective owners of warehouses on Lombard street adjacent to and near by that of the express company.

The bill was filed against the United Railways and Electric Company as sole defendant. Its material allegations are as follows:

That the complainants own large and valuable warehouses, on the south side of West Lombard street, adjacent to or near by the one of the Express Company, in which they conduct extensive manufacturing enterprises employing in that connection hundreds of persons largely young girls and women who in going to and from their work traverse the sidewalk over which it is proposed to lay the switch and that the same thing is true of the patrons and customers of their respective factories. That the immediate neighborhood in which the appellants are located is rapidly being filled up with large factories and warehouses whose occupants and customers must also use the same sidewalk, and that the complainants, by reason of their close vicinity to the Express Company's warehouse, have a peculiar interest above that of the general public in having that sidewalk kept free and unobstructed for the use of pedestrians.

That the Express Company is engaged in the business of carrying all kinds of freight and express matter, including combustible and explosive substances, which it transports in freight or express cars owned by it and used only for its private business of carriage of freight and express matter and that the United Railways Company hauls such cars over its lines without any warrant or authority of law; that by ch. 390 of the Acts of 1898 the Legislature attempted to authorize The Baltimore Consolidated Railway Company to transact an express business over its lines in Baltimore city and adjoining counties, but if that Act be valid and the benefit of it passed to the United Railway Company it would not authorize that company to transact such business by hauling over its lines the cars of Gaither's Express Company.

That Gaither's Express Company proposes to use its recently acquired warehouse No. 407 West Lombard street for a distributing depot of all kinds of freight and express matter, including inflammable and explosive materials, and desiring to have the proposed switch connection with the railway tracks in the bed of the street and not having itself the power to construct a track on either the street or the sidewalk it induced the United Railways Company to procure from the City of Baltimore supposed authority for that purpose by the passage of the Ordinance of February 6th, 1905, of which and the plat herein referred to copies were filed with the bill as exhibits. The ordinance is then alleged to be void because it is self contradictory in its terms and provisions and also because the small sum of fifty dollars charged for the franchise is not in compliance with sec. 37 of the Baltimore City Charter. A third reason alleged for the invalidity of the Ordinance is that the business of the Express Company is a private and not a public one and that the city has no power to authorize the laying of the switch, or the overhead construction of wires necessary for its operation, over the street or the sidewalk for the benefit of a purely private enterprise.

The bill then charges that the construction and operation of the proposed switch with its overhead wires would seriously damage the plaintiff's properties and menace the lives of many persons lawfully occupying them by increasing the danger of fire, and would also seriously interfere with the access to their premises and would especially interfere with the receipt and shipment of goods by the occupants of the property of the appellant the Resinol Chemical Company whose warehouse adjoins that of the express company and would inflict upon the appellants great damages for which there would be no adequate remedy at law.

The prayer of the bill is that the Ordinance of February 6th, 1905, may be declared void, that the United Railways Company may be restrained from constructing or operating the proposed switch and the overhead trolley wires and for general relief.

The Gaither's Express Company intervened by petition and asked to be made a co-defendant in the case, which was done by an appropriate order of Court, and then it also demurred to the bill.

The Court below after a hearing upon the demurrers, sustained them, and the plaintiffs declining to amend their bill the Court dismissed it by the decree appealed from.

The theory of this bill is that the express business as now conducted by the United Railways, through the agency of Gaither's Express Company, by transporting the express cars of only the latter company is in fact a private business which the Railways Company cannot lawfully conduct, and that therefore the City of Baltimore has no power to authorize the construction of the proposed switch to the express company's warehouse to be used in conducting that kind of an express business, as to do so would be to devote the public street to private uses. The assertion is also made that the Ordinance of February 6th, 1905, purporting to authorize the construction of the switch is void because of the alleged inherent defects already referred to. The broad allegations made in the bill that the Railways Company is carrying on its lines the cars of the Express Company without any warrant or authority of law, and that the City of Baltimore could not lawfully authorize the construction of the proposed switch constitute mere conclusions of law, the truth of which is not admitted by the demurrers. The sufficiency of the bill must be tested by ascertaining whether the facts stated in it justify the conclusions at which the plaintiffs arrived.

We will first consider the validity of the Ordinance of February 6th, 1905 authorizing the construction of the switch. There is an apparent conflict or inconsistency between the declared purpose and express provisions of the title and body of this Ordinance and the statement contained in its second section that the switch should be so constructed and laid down as "not to interfere with or encroach upon the sidewalks or gutters as now laid out and existing upon and along the streets above mentioned." Taken by itself this provision looks like a flat prohibition to lay the switch across the sidewalk, but read in connection with the other portions of the Ordinance and the plat therein referred to, it becomes apparent that no such intention can be ascribed to the authors of that piece of legislation. In the first place the express purpose of the Act as declared in its title is to grant permission "to connect" the railway tracks on Lombard street, west of Eutaw street "with the proposed improvements to be erected by the Gaither's City and Suburban Express Company on the south side of Lombard street." The first and enacting clause of the Ordinance also authorizes the United Railways Company to "lay down, construct, operate and maintain single track curves" with the necessary overhead trolley wires "to connect" its tracks on Lombard street" with the proposed improvements to be erected by the Gaither's City and Suburban Express Company on the south side of Lombard street west of Eutaw street in accordance with theplat filed in the office of the City Engineer." There is no allegation in the bill that the warehouse of the Express Company is so constructed as to extend beyond the building line. It must therefore be presumed that it is located like other buildings back of that line where the switch could not reach it without crossing the sidewalk. Furthermore on the plat, "in accordance with" which the Ordinance declared that the switch should be constructed, it is shown as not only crossing the sidewalk but extending some distance, as such switches usually do, into the warehouse which it is intended to serve.

In Burk v. Baltimore, 77 Md. 468, this Court held that an ordinance for opening a street which contained only a vague description of the lines of the proposed street but referred to a plat on which the lines were correctly laid down was effective to locate the street according to its position on the plat. In the opinion in that case the Court say: "Whatever may be said as to the vagueness of the ordinance, without reference to the plat therein referred to, all ambiguity disappears when the plat is examined, for the exact direction, location and width of the proposed street therein appear. It was entirely proper, instead of trying to give a minute and accurate description, to provide in the ordinance that Whitelock street should be condemned and opened ``as located on said plat.' This course was approved inBaltimore v. Bouldin, 23 Md. 371. The ordinance does not undertake to define with accuracy the lines of the proposed street, the plat being referred to for that purpose, and if there should be any variance between the courses and distances and measurements contained in the ordinance and those set forth in the plat, the latter will govern. This is the rule where a plat or map is referred to in a deed, and we can see no good reason why the same rule should not apply here."

Applying to the ordinance now before us the same rule of interpretation as that adopted in Burk's case, as we think we should, it must be construed to authorize the laying of the switch across the sidewalk to connect with the Express Company's warehouse but to require the rails to be so laid as not to project above or break the level of the foot pavement, or impede the flow of water in the gutter.

The smallness of the charge of $50 made for the franchise of laying and maintaining the switch cannot be held to invalidate the ordinance it not being alleged in the bill that the amount of the charge was collusively or dishonestly arrived at or was not fixed by the Board of Estimates in the manner prescribed in sec. 37 of the Charter. The law confers upon the Board of Estimates and not upon the Court the power and discretion of determining the prices to be charged for franchises in the public streets granted by ordinances of the Mayor and City Council.

Nor can it be said that the business of Gaither's Express Company was a strictly private one. It was held in Bank ofKentucky v. Express Co., 93 U.S. 174, that a company "engaged in the business of carrying for hire money, goods and parcels from one locality to another" was a common carrier although it employed railroads and other public conveyances to transport the articles for it, while remaining in charge of its own servants. See to same effect 12 A. E. Encycl. 2 ed., p. 543; 19 Cyc. 22. The bill before us alleges "that Gaither's City and Suburban Express Company is engaged in the business of carrying all kinds of portable freight and express matter * * * to and from Baltimore City and certain nearby towns and villages." It is true that it further alleges that this freight and express matter is carried only in cars used for the business of Gaither's Express Company, but it is a matter of common knowledge that express companies frequently if not ordinarily conduct their business in that manner. Such a business of transporting freight and packages for the public can with no more propriety be called a private one than the business of carrying the public themselves as passengers. It necessarily follows that the city of Baltimore in permitting the United Railways Company to lay and maintain the proposed switch to connect its lines by a curved track, as shown on the plat referred to in the Ordinance, with the express company's warehouse, to facilitate conducting an express business in the manner already mentioned, was appropriating the public street to legitimate uses for the benefit of the community at large and that it did not exceed its powers in so doing.

The bill charges that the Act of 1898, ch. 390, purporting to authorize the Baltimore Consolidated Railway Company, which at the date of the passage of the Act owned and operated the tracks on Lombard street, to transact an express business upon its lines of railways located in Baltimore City and adjoining counties, would, if the benefit of the Act passed to the United Railways Company, authorize that company only to run its own freight or express cars for the carriage of express matter for the public and would not authorize it to haul the private express or freight cars of one person or corporation only. There is no allegation in the bill that the United Railways Company has ever refused to haul on its lines the freight or express cars of any express company or that any such company other than the Gaither's Company had demanded to have its cars so hauled or transported. Nor is it alleged in the bill that the United Railways Company is without authority to carry on an express business over its own lines by means of its own cars.

Assuming that the United Railways Company is authorized to transact an express business on the Lombard street and other lines formerly operated by the Baltimore Consolidated Railway Company, there is good authority for holding that it would have the right to limit the express business on its lines to a single express company if it thereby afforded to the public reasonable express facilities. In the Southern Express Company's cases,117 U.S. 1, it was held that in the absence of some special statute there is no law or usage having the force of law requiring railroad companies to furnish express facilities to all express companies which may demand them, the Court there saying "so long as the public are served to their reasonable satisfaction it is a matter of no importance who serves them. The railroad company performs its whole duty to the public at large and to each individual when it affords the public all reasonable express accommodations. If this is done the railraod company owes no duty to the public as to the particular agencies it shall select for that purpose. The public requires the carriage but the company may chose its own appropriate means of carriage always provided they are such as to insure reasonable promptness and security."

The present case differs from those of Townsend v. Epstein,93 Md. 537, and Van Witsen v. Gutman, 79 Md. 405, relied on by the appellants, in that in each of those cases the acts enjoined were attempted appropriations, under the authority of void municipal ordinances, of portions of public streets to what the Court determined to be exclusively private uses. In the present case the act complained of is the proposed laying in a public street of a switch or spur from an existing railway track, to an express company's warehouse on the side of the street, to be used for purposes which we have determined to be not private but public in their nature.

The appellants earnestly contended before us that the Act of 1898, ch. 390, granting to the Consolidated Railway Company the right and franchise of transacting an express business over its lines, when read, as they insisted it should be, in connection with secs. 8, 9 and 37 of the Baltimore City Charter passed at the same session of the Legislature, did not authorize the railroad company to conduct such a business over the portion of its lines lying within the city without first obtaining a franchise for that purpose from the municipal authorities. An examination of those three sections of the City Charter discloses the fact that they relate solely to franchises granted by theMayor and City Council and not to those granted by the Legislature. Whatever may be said of the expediency of the granting by the Legislature of franchises in the streets of the city without requiring adequate compensation therefor to be paid to the municipality, there can be no doubt, in view of the decisions of this Court, of the power of the Legislature to make such grants. Groff v. Frederick City, 44 Md. 67; Hodges v.Railway Co., 58 Md. 619; Baltimore v. The State,15 Md. 462; Revell v. Annapolis, 81 Md. 9; Humphrey v.Baltimore, 47 Md. 151-2; Hiss v. Balto. Hampden R.R. Co.,52 Md. 254.

When the proposed switch is constructed neither the United Railways Company nor the Gaither's Express Company will have any exclusive or superior right to use or occupy the portions of the street or sidewalk over which the switch runs. The right of the appellants as property owners in that connection as well as those of persons passing along the street, will be the same after the switch is made that they were before. The railway company and the property owners have equal rights to the use of the public streets which each must exercise reasonably with respect to the right of the other. Cars cannot be permitted to so stand upon the switch as to prevent other vehicles from passing. "If at any time the owner has occasion for the presence of vehicles in front of his property on the street to take away or deliver persons or goods he may exercise that right for such reasonable time as is necessary for his purposes; and if, in such exercise of the right, the passage of the street cars is impeded the street cars must wait." Poole v. Falls Road Ry. Co., 88 Md. 540; Hodges v. Railway Co., supra; Lonaconing Ry. Co. v. Consolidated CoalCo., 95 Md. 636. The portion of sec. 2 of the Ordinance of February 6th, 1905, imposing a penalty for hindering or delaying the cars by the use of other vehicles on the switch must be construed to relate only to an unreasonable hindrance or delay and cannot be held to have been intended to prevent or punish the reasonable use by adjacent property owners or persons having business with them of the public streets in front of their premises.

Both the railway company and the express company must so use the switch, when constructed, as not to unnecessarily or improperly interfere with the rights of the public or the adjacent property holders and if they fail to do so and injury results from such failure the proper tribunals will afford relief to the injured persons. But we cannot anticipate defaults or acts of negligence or abuse on the part of the companies in maintaining and using the switch or in the storage or handling of such inflammable or explosive substances as may be lawfully committed to them for transportation. Green v. City and Suburban RailwayCo., 78 Md. 308.

The decree appealed from will be affirmed.

Decree affirmed with costs.