Simons Sons Co. v. Md. Tel. Co.

This suit was instituted in the Court below by the appellants against the appellee corporation for an injunction, upon the allegations and for the purposes set out in their bill of complaint. The appellee demurred to the bill, thus admitting the truth of the facts therein alleged as far as the same are well pleaded. The Court below sustained the demurrer and dismissed the bill. The action of that Court is before us for review upon this appeal.

The facts with which we will be concerned in the inquiry we are to make, as they are made to appear from the record of proceedings before us, are as follows: The appellee is a corporation formed and organized under the general incorporation laws of the State. The original Act of incorporation was obtained in January, 1890. This provided that the name of the corporation should be, "The Writing Telegraph Company of Baltimore City" and stated the object thereof to be the constructing, owning, and operating telegraph lines in the State * * * the transaction of a general telegraph business * * * and "the transaction of any business in which electricity, over or through wires may be applied to any useful purpose." By an amendment to the charter in July, 1895, the name of the corporation was changed to "Home Telephone and Telegraph Company of Baltimore City;" and by a further amendment in May, 1899, the name was changed to that by which the corporation is sued in the present proceeding "Maryland Telephone and Telegraph Company of Baltimore City;" and the object of the corporation as respects the operation of a telephone system was more specifically stated.

Prior to the last amendment and under the name "Home Telephone and Telegraph Company of Baltimore City," the corporation applied to the city of Baltimore for permission to construct and maintain its "lines of wire and electrical conductors under, upon or over the public streets, alleys, conduits and other public places" of the city in order to transact and carry on its telephone business therein. On the 1st of July, 1896, the city of Baltimore by Ordinance No. 110 granted this permission. The ordinance is styled, "An ordinance granting permission to the Home Telephone and Telegraph Company of Baltimore City to use for its telephone wires the ducts in the conduits of the police and fire alarm telegraph system, not needed for the city's use, and authorizing said company to extend its system in the territory not covered by the said police and fire alarm telegraph conduits, subject to certain conditions and restrictions, and authorizing the Mayor to rent all space in said conduits not promptly occupied by said the Telephone Company to such other persons or corporations as may desire to use the same." Following this is a preamble which recites that "the telephone has become almost a necessity of modern life in cities;" that "there is very great need of a cheaper telephone service in Baltimore City, the number of telephones being very small in proportion to the population on account of the very high prices demanded by the company which now has a monopoly of the telephone business here;" that such company had given official notice to the public through the report of the Telephone Commission to the General Assembly on January 6th, 1896, that "it will not and cannot reduce its rates for telephone service;" that "at the present rates the telephone, although greatly needed in business, is beyond the reach of persons of ordinary means, and the use of it is confined to a favored few, who have the means of paying the high prices charged;" that "it would be a great boon to the persons of moderate means, and a very great advantage to the business community, at large, to have a cheaper telephone service;" that "the Home Telephone and Telegraph Company of Baltimore City has declared itself ready and willing to supply such a service at rates very much lower than those now prevailing;" that the subways heretofore constructed by the city of Baltimore for the wires of the police and fire alarm telegraph system of the city are "capable of containing numbers of wires over and above the number of ducts required for the city's use;" and that these ducts produce no revenue to the city but can be made a source of revenue if leased to the Home Telephone Company.

The ordinance then grants permission to said Telephone Company to use the ducts, c., mentioned in its title and preamble for the purposes of its business; and prescribes the regulations and conditions under and subject to which such permission is granted. Among these is the following, being sec. 4 of the ordinance, "that the rights and privileges hereby granted are granted subject to the following conditions, namely:" "That the prices to be charged by the said Home Telephone and Telegraph Company of Baltimore City shall not be more than four dollars per month for telephones furnished to business offices, and not more than three dollars per month for telephones furnished at dwelling houses within the corporate limit of Baltimore City, and to the further express condition that all the rights and privileges hereby and herein granted shall cease and be forever forfeited, in case the said Home Telephone and Telegraph Company of Baltimore City shall be consolidated with any other telephone company in Baltimore City, unless the terms of the consolidation provide that the consolidated company shall not charge more than the above mentioned rates for the use of its telephones." It is further provided in the ordinance that the powers therein granted to the telephone company may be forfeited at the option of the city unless the company shall have, within two years from the date of the same, not less than two thousand telephones in actual use in the city; and that the Telephone Company "shall indicate its acceptance of the terms and conditions" of the ordinance "by filing a written acceptance of the same with the Mayor, and filing at the same time a bond conditioned for a faithful observance of the provisions of" the "ordinance in the penalty of ten thousand dollars," c.

After the passage of the ordinance, the Telephone Company therein mentioned filed its bond as required thereby and its acceptance of the same, addressed to the Mayor, in the office of the Comptroller of the city. The grant of the use of the subways and ducts of the city for the purposes of the telephone company was made for "the period of ten years and until such time as the city's general subway system is ready for use in the localities now covered by the subways of the police and fire alarm telegraph system;" and subject to a rental to be paid to the city as provided in the ordinance.

The appellants are four in number — all citizens of Baltimore; all having business establishments, and conducting business therein, and all having need for the purposes of business, of the use of some telephone system. They sue for themselves and all others in like situation with themselves, as respects the use of the telephone and their relations to the appellee. It appears, rather inferentially than by direct averment, that all of the appellants had, with the appellee, prior to 1903, contracts for telephone service at the rate named in sec. 4 of the Ordinance 110 under which apparatus and equipments, with what is known as the metallic circuit, had been installed in their several business establishments. The appellee now refuses to furnish the appellants or any of them the telephone service mentioned, at the rates specified in the ordinance; and, it is alleged, is threatening some of them with a discontinuance of service to them and a removal of the telephone instruments and equipments from their places of business unless they agree to pay for said service at the rate of seventy-two dollars per annum; and as to others, has, by such threats, extorted from them contracts, made under protest, to pay for such service at the said rate. The prayer of the bill, in substance, is that the appellee be restrained from the aforesaid threatened action; and from demanding and receiving from the appellants he excess of charge for telephone service, such as is mentioned in the bill, over the rate provided in Ordinance No. 110; and that the appellants and others in like situation with them, as respects the matters in controversy between them and the appellee, be decreed entitled to demand and receive from the appellee the kind of telephone service mentioned in the bill of complaint at the rate of charges provided in said ordinance.

Among the grounds of demurrer to the bill the third in order is "that no contract is stated in said bill whereby the defendant is obliged to furnish the plaintiffs or any of them telephones and telephone service of the kind described in said bill;" and the fourth ground is "that by a proper construction of Ordinance 110, stated in said bill, the defendant is not obliged to furnish telephones and telephone service of the kind described in said bill to plaintiffs (appellants), or any of them, at the rates claimed in said bill." The matters embraced in these grounds of demurrer are such as the appellee ought to bring before the Court by way of answer. They cannot be properly treated and disposed of on demurrer.

The contention upon this phase of the demurrer is that the meaning of the word telephone and what the term will embrace when used in contracts for telephone service has been defined and fixed by statute in this State; and that the description of service to which the appellants allege themselves entitled is not within the terms of Ordinance No. 110 under which the rights of the appellants arose, when reference is had to the statute in construing the ordinance. The legislation to which is attributed this effect upon the rights of the parties here is that enacted by the Acts of 1892, ch. 387, which added to Art. 23 of the Code of Public General Laws, sub-title Telegraph and Telephone Companies, secs. 232A, 232B, 232C, 232D, and 232E; and Act of 1894, ch. 207, which added to said Article and sub-title of the Code, secs. 232F and 232G. Of these sections thus added to the Code, secs. 232A and 232B prescribed maximum rates of charges for rental or use of telephones by any "individual company or corporation, now or hereafter owning, controlling, managing or operating any telephone line or lines within the limits of any city, town or village in the State." Sec. 232C defined what the word telephone "shall be construed to include" wherever used in the Act of 1892, ch. 387. Sec. 232D required that every Telephone Company should supply all applicants with telephone connections and facilities "without discrimination or partiality" and made further provisions for protecting the rights of such applicants in securing such connections and facilities. Sec. 232E made it a criminal offense for "any owner, operator, agent or other person" to collect or receive for the rental or use of any such telephone "any sum in excess of the ratio fixed" by the Act and provided a penalty therefor.

The subsequent legislation modified the foregoing by providing in sec. 232F that any person, firm or corporation might contract in the manner therein prescribed with any individual, company or corporation owning, c., any telephone lines within the State "for such special form, description and amount of telephone equipment and service expressed in such contract, as such person, firm or corporation may need, at such rates, and upon such terms and conditions as may be agreed upon;" but provided that nothing in this section should be construed to impair the obligation of any person or corporation owning or operating any telephone line in this State to furnish, in accordance with the aforementioned sections of the Code enacted by the Act of 1892, ch. 387, and at the rates of charge mentioned in secs. 232A and 232B, telephone equipment and service of the kind and description which was, at the time, being furnished by the Chesapeake and Potomac Telephone Company of Baltimore City at the said rates; and required as a condition precedent to the exercise by the said company of any of the powers conferred by the Act of 1894, ch. 207 (secs. 232F and 232G of Art. 23 of the Code), that it should file in the office of the Clerk of the Court of Appeals to be annexed to the original of the Act a full and adequate description in detail, and to be certified so to be by the Governor, of the equipment then used by said company in furnishing the service mentioned in the proviso. This description was to be taken as a true description of the "said equipment in all proceedings whether civil or criminal" which might be taken to enforce the requirements of the proviso or of the sections of Art. 23 of the Code therein mentioned. Sec. 232G provides for the appointment of a commission by the Governor upon which is imposed the duty, under the powers conferred upon it, to make such investigations as should enable it to report what is the cost of furnishing to the city of Baltimore and other places telephone service "both that known as the ordinary or grounded service, and also that known as the metallic circuit service;" and to procure all such information as may "be necessary and proper to determine what ought to be fair and sufficient rates for furnishing such telephone service;" and to make report to the next General Assembly.

Exhibit No. 1 filed with the bill of complaint makes it appear that it is claimed by the appellee corporation that, at the time of the passage of Ordinance 110, under the statute, to which reference has been made, regulating maximum charges for telephone service and defining what the word telephone should be held to include, the ordinary telephone equipment to which the statute applied had been described as what is known as the grounded circuit service and that said ordinance must be taken as having reference to that equipment for, or description of, telephone service, and does not authorize the appellants to call for contracts for the metallic circuit service as claimed in their bill.

It is not perceived from a reading of the legislation in question, and which has been reviewed, how it can have a necessary effect in construing the Ordinance 110. If it be assumed that the statute, in prescribing maximum rates of charges for telephone equipment and service, meant and was dealing with the ordinary grounded circuit service nothing is discovered in its terms or provisions which would prevent parties or corporations wishing to make contracts for furnishing telephone service from going to parties desiring to have such service furnished, and offering and contracting to furnish any kind or description of service that might be agreed upon provided only that for the particular kind or description of service which was within the contemplation and provisions of the statute charges should not be in excess of the rates therein prescribed. And so there is nothing to prevent a corporation organized for the purpose of furnishing telephone service from going to the Mayor and City Council of Baltimore (assuming for the present the power of the city to enter into such a contract), and in consideration of the right and privilege of using the subways and ducts of the city, obligating itself to make contracts with the citizens thereof to furnish any kind or description of service that it may choose to contract for within the like limitations. The general intent and policy of the law in question was to prevent extortion in charges for telephone service and to secure fair and reasonable rates of charges for such service. It would be contrary to this intent and policy to so construe the law as to restrict or hinder parties in making contracts for the service that will secure for them, at cheaper rates than those fixed as the maximum in the statute, improved equipments and more effective appliances. In other words to hold that parties are not free to secure contracts for a different and better telephone service than that with which the statute deals, at cheaper rates than the statute prescribes as a maximum for an inferior service. A telephone company could not be required to enter into a contract for service at rates under those which the statute permits it to charge for the description of service to which the statute applies, but its voluntary action in entering into contracts is under no restraint either as to description of service or rates of charge provided the maximum statute rates are not exceeded in any case falling within its provisions.

The law expressly provides that contracts for special forms and description of service may be made under regulations prescribed. We may suppose that this provision was made with a view to allow of contracts for higher rates, than those fixed as a maximum by the statute, in cases where parties desired to contract for special, or different and better equipments than those the statute contemplated when fixing the maximum charges therein specified; but parties would have the same right to make contracts of the same class at rates lower than the maximum rates of the statute, without going counter to either its letter or its spirit. The statute does not fix a meaning to or give a definition of the word telephone; nor prescribe an amount or description of telephone equipment to be imported into all contracts for telephone service irrespective of the intention of the parties to the contracts. The definition of the word telephone occurring in the Act of 1892 and the fixed description of telephone equipment provided for in the Act of 1894 have relation to the purposes of the legislation enacted by these two Acts. Sec. 232C enacted by the former Act expressly provides what the word telephone "shall be construed to include wherever used" in that Act; and sec. 232F enacted by the later Act expressly provides that the fixed description of telephone equipment which it requires to have filed with the original Act in the office of the Clerk of the Court of Appeals shall be taken as a true description of said equipment in all proceedings civil and criminal which might be taken thereafter for the enforcement of the requirements of that section or of the sections of the Code enacted by the Act of 1892. The legislation embraced in the two Acts referred to gave to parties seeking to make, or making contracts for telephone service certain rights, and wherever the provisions of the statute have to be availed of in the enforcement of those rights the definitions therein given of the word telephone and of telephone equipment apply; but there can be no reason for applying them, and they have no application, to cases in which parties by their own voluntary action enter into contracts, in no way violative of the provisions of the law, in which they fix for themselves the terms of their contracts and define for themselves what they are contracting for.

When, therefore, the appellee applied to the Mayor and City Council of Baltimore for the right to use the subways and ducts of the city for its corporate purposes there was nothing in the legislation we have been considering to prevent it from making the contract, which the appellants insist that it did make, to furnish the citizens of Baltimore with telephone service at the rates specified in the Ordinance No. 110; and the kind and description of equipment and service that was to be supplied at the said rates we must look for, not in the law, but in the contract that was made. To determine this question the Court is entitled to be advised of all the circumstances under which and the conditions with reference to which the contract was entered into. In the case of First National Bank v. Gerke,68 Md. 449, it was said at p. 456, CHIEF JUSTICE ALVEY delivering the opinion, "it is a principle of universal application that in order to arrive at the intention of the parties, the contract itself must be read in the light of the circumstances under which it was entered into. General or indefinite terms employed in the contract may be thus explained or restricted in their meaning and application and the contract must be so construed as to give it such effect and none other as the parties intended at the time it was made. These principles are elementary." The instrument being construed in the case was a bond and it was further said "regard must be had to the intention of the parties when the bond was executed; and whatever facts will shed light upon the question of intention may be considered in construing the bond."

Now the ordinance here which constitutes the contract between the city of Baltimore and the appellee, in its fourth section where provision is made for furnishing to the citizens telephone service at the rate of forty-eight dollars for business places and thirty-six dollars per annum for dwellings, uses the word telephone generally and does not specify any particular description of service to be furnished. The most natural and reasonable construction to be given, or meaning to be imputed, to the word telephone as here used is the telephone with all improvements, equipments and appliances essential in its operation to make it most effective in use. If, as the appellee contends, the word is to have a restricted meaning, or a particular meaning the Court should be informed of the circumstances and conditions which will make this appear. It has been seen that in the legislation which has been invoked as affecting the construction of the ordinance in question two kinds or descriptions of telephone service are mentioned and recognized as in use — the one what is known as the grounded circuit service which the appellee insists is the one it is obligated to furnish under the ordinance; and the other the metallic circuit service which the appellants insist they are entitled to have. The Court is not informed judicially of the difference between these two descriptions of service; nor is it furnished with any information which enables it to say whether it is more probable and reasonable that one or the other was in the contemplation of the parties to the contract in question.

Again, the ordinance in question must have intended that the service to be furnished by the appellee should be effective in use; and while the appellee insists that the grounded circuit service is that which the Ordinance 110 provided for, the appellants contend that at the time of the passage of the ordinance that service was not effective for their purposes. It may be that conditions were then such as affecting the operation of that system that it was no longer effective. This contention between the parties cannot be settled upon demurrer, but must be by facts brought to the knowledge of the Court by evidence. Without pursuing this branch of the inquiry further it would seem that, as respects the grounds of the demurrer we have been considering, this is eminently a case in which the Court is entitled to know the circumstances and conditions surrounding the parties to the contract in question at the time it was made, in determining their meaning and intention as between the respective contentions here made.

The further grounds of demurrer are in substance that the appellants have not, in their bill, stated a case for relief in equity against the defendant, that they have no standing in a Court of equity to ask relief on the contract between the appellee and the Mayor and City Council of Baltimore and that their bill is multifarious. As to the rights of the appellants under Ordinance 110, and their standing in Court to enforce the same, the nature of the ordinance must determine. In the light of the preamble to the ordinance there can be but little doubt as to the intent with which it was enacted or the main object it was intended to accomplish. Its evident purpose was to minister to what it described as next to a public necessity. To make it practicable for the citizens of the municipality to more generally avail themselves of telephone facilities; and to that end to relieve them from the high prices of a corporation which was said to be then having "a monopoly of the telephone business" in the city of Baltimore, whereby these facilities were put "beyond the reach of persons of ordinary means" and were "confined to a favored few." To secure for persons of moderate means the "great boon" and "to the business community at large" the "great advantages" of a cheaper "telephone service." It is also evident that the ordinance was passed upon the faith of the appellee having "declared itself ready and willing to supply such service at rates very much lower than those "then prevailing." The design of the ordinance therefore was the public good, to secure a public benefit and to promote the public welfare. It was to that extent legislation, and if, in this aspect, it was within the powers of the municipality to enact it, it was something more than a mere contract with the appellee for the purposes of the municipality as a corporate entity.

The power under which the municipality proceeded in enacting the ordinance in question is found expressed in sec. 819A of Art. 4 of the Code of Public Local Laws as enacted by the Act of 1890, ch. 370, and is in these words "The Mayor and City Council of Baltimore shall have power to regulate the use of the streets, lanes and alleys in said city by railway or other tracks, gas or other pipes, telegraph, telephone, electric light or other wires and poles, in, under, over or upon the same, and may require all such wires to be placed under ground, after such reasonable notice as they may prescribe." The same power is contained in the present charter of the city, sec. 6, as enacted by the Act of 1898, ch. 123.

This provision of the charter of the city of Baltimore was before this Court for construction in the case of Lake Roland Elevated Ry. Co. v. Mayor, C.C. of Balt., 77 Md. 352 where, having reference to the Act of 1890, ch. 370, JUDGE BRYAN, delivering the opinion of the Court, said: "It has been for a long time recognized as the law that the Mayor and City Council of Baltimore have full and complete control over the streets and highways of the city. It has been considered, however, that certain uses could not be made of them without the sanction of an Act of the General Assembly. For this reason the Legislature saw fit to enlarge the corporate powers of the city." And CHIEF JUSTICE ALVEY who delivered a separate opinion upon the motion for re-argument of the case said in relation to the provision in question that it was "but an amplification of their (the city's) general power over and right and duty to regulate and maintain the streets and other highways of the city for the use of the public."

Having thus recognized and asserted the full and ample power of the municipality over the subjects committed to its control under the provision of law to which reference is now being made the case distinctly held that the municipality in the exercise of such power was acting in a legislative capacity; that it was discharging a trust committed to it for the public benefit; and that it could not relieve itself of the duty it owed to the public — it could not divest itself of the power and the corresponding duty and could not abridge it. In the course of his opinion JUDGE BRYAN refers several times to the power in question as a legislative power and makes this the foundation of the theory upon which the case was decided; and CHIEF JUSTICE ALVEY in his opinion says "the power vested in them (the Mayor and City Council) in respect to the streets, is of a legislative character; and they can neither restrict themselves, nor their successors, by any irrepeable ordinance, in the exercise of such power over the streets except it be by express authority of the Legislature of the State."

The character and nature of the power to be exercised by the Mayor and City Council of Baltimore, in making regulations and granting permission for the use of its street for any of the purposes named in the provision of law by which such power is conferred, having been thus defined, was the municipality acting within the purview of such power in imposing upon the appellee the condition expressed in sec. 4 of Ordinance 110 as respects the rates of charges therein specified for telephone service. It is contended that the condition annexed to the ordinance in this respect is an attempt on the part of the Mayor and City Council to exercise the function of the Legislature which alone can prescribe or regulate the compensation of a public service corporation. This does not result from any fair construction of the ordinance. It is for the Legislature to grant, or provide for granting, charters to corporations; and in making such grants to impose, at its pleasure, restrictions and limitations upon the powers to be exercised by them when created. It can, at pleasure, regulate, in the charters of public service corporations, the compensation which they may exact for services incident to the object of their creation. These regulations when imposed are limitations upon the powers of the corporation, and they must in making contracts and carrying out their purposes act within the limitations so imposed; but acting within these limitations the corporation has the right to make contracts at its pleasure and do any act for carrying out its legitimate purposes.

Now when the ordinance in question was passed by the Mayor and City Council of Baltimore and accepted by the appellee corporation, the latter had its charter and was subject, in making its contracts. only to the limitations which the law imposed. Within these limitations it was free to contract. In passing the ordinance the municipality made no attempt to interfere with the chartered rights of the appellee or to abridge its chartered powers. It did not attempt of its own authority and right, to impose upon the appellee, in invitum, the rates of charge for telephone service specified in the ordinance. The appellee had, at the time of the passage of the ordinance, the right to refuse to accept its terms. In accepting these it was acting within its chartered powers and in the free exercise of its chartered rights. All of the obligations imposed by the ordinance were imposed by the appellee upon itself by its own voluntary action in accepting the ordinance. As well might it be said, if the ordinance had omitted the condition as to rates of charge, that the appellee in contracting with individuals at the rates mentioned in the ordinance, which it would have had the right to do, was being subjected to an illegal imposition, as to say that the ordinance in question, under the circumstances appearing here, is to be taken as having that effect.

While there was no attempt on the part of the Mayor and City Council of Baltimore to usurp the function of the Legislature by imposing the condition expressed in sec. 4 of Ordinance 110, in undertaking thereby the regulation of the compensation of a public service corporation, they would seem to be, in incorporating the condition mentioned in the ordinance within their limited or quasi legislative power in respect to the control of the streets and of their use or occupation by "telegraph, telephone, electric light or other wires and poles in, under, over or upon the same." The municipality in having the control of the streets as indicated is invested with a trust for the benefit of the community and has imposed upon it a duty to the general public in that connection. The law gives to the municipality the right to regulate the use of its streets; and requires of a public service corporation that it shall obtain from the municipality the requisite authority to use the streets and highways thereof where such use is desired for its corporate purposes. It cannot be the duty of the municipal authorities to grant such use for the mere advantage of the corporation, while it is their duty, in granting the same, to secure the largest measure of advantage to the general public with a just regard for the rights of the corporation.

It would seem to be but a reasonable incident to, and exercise of, the power to regulate the use of the streets and highways which has been conferred by the provision of law we are here considering, that, where a public service corporation gets permission to use such streets and highways for its corporate purposes, and such purposes consist in making contracts with the citizens of the municipality to which the power is entrusted, and exacting from them compensation for a service that for urgent reasons of convenience or the necessities of business conditions they must avail of, the permission can be granted under such regulations as to rates of charges as will protect the community against extortionate exactions and secure fair and reasonable terms in availing of the facilities which the corporation furnishes. It cannot be here objected by the appellee that the regulation contained in the ordinance here in question as to rates of charge was not a reasonable one. The time to have urged such a consideration was before it accepted the ordinance and availed of the privileges it acquired thereunder. Whatever may have been the description of service the appellee was to furnish under the Ordinance 110 it would seem to be concluded as to the reasonablenes of the rates of charge for that description of service by its own voluntary action.

It follows from the construction, and the effect, which we think it proper to give to the power conferred by law upon the Mayor and City Council of Baltimore in pursuance of which Ordinance 110 was enacted by them that the ordinance imposed upon the appellee a duty to the general public which the members thereof have a right to enforce against it in conditions which will show that it is violating such duty. There are authorities which seem to be directly in point going to support the views which have been expressed. In the case of the People ex relJackson v. Suburban R.R. Co., 178 Ill. 594, the village of River Forest a municipal corporation organized under the general statutes of the State of Illinois, granted by ordinance to a suburban railroad company permission to use the streets of the municipality under regulations prescribed in the ordinance. Among these regulations a section of the ordinance "provided that the rate of fare should not exceed ten cents for one continuous ride of one trip from any point on said railroad in River Forest to any station on the loop line or some point in the city of Chicago," c. "Provided that the fare between any point on said railroad in the village of River Forest and any of the said points in the city of Chicago or the said point of connection of said railroad with any elevated railroad as aforesaid, and intermediate points' shall not exceed the fare charged at any point in the town of Cicero west of the east line of central avenue or in the village of Harlem or in either of them, to the same points or return either for single trip or at commutation rates or otherwise." The railroad company in 1898 while maintaining the rate of ten cents in the village of River Forest and the same for return or intermediate points, that being the highest rate of fare, offered for sale and sold twelve tickets for a dollar good for one continuous ride over its road in the town of Cicero only and refused to sell tickets for twelve rides for one dollar from any point in River Forest but continued to charge ten cents, c. Amandamus was sued out by the relator to compel the company so long and at such times as it sold tickets at the rate of twelve for a dollar from the town of Cicero, c., to sell tickets at the same rate from any point on its line in the village of River Forest, c. The Supreme Court ordered the writ accordingly, and in the course of the opinion in the case said "while it is true the charter of a street railway corporation is granted under the general laws of the State, yet a charter so obtained gives but the bare power to exist. In order to enable such a corporation to carry out the sole purpose for which it has existence it must have a further exercise of sovereign power in its behalf. Some city or village clothed by delegation with authority to exercise sovereign power possessed by the State must grant such corporation authority to enter upon its streets and alleys and construct and operate its road there. The power possessed by the State to attach as conditions to such a grant the performance of duties owing by a quasi public corporation to the public and directly beneficial to the public may be exercised by a municipality in the exercise of the power by it possessed, by delegation from the State, to permit the use of its streets, alleys and public places by the corporation."

In the case of Rice v. Detroit, c., Ry., 122 Mich, 677, a similar franchise was granted to the railway by the village of Dearborn and among other regulations, rates of fare to be charged by the railroad were prescribed in the ordinance granting the franchise. The railroad failed to provide certain tickets to be sold to passengers at the prescribed rate so that they could be had at a point where the same were called for by a passenger whereby the passenger was compelled to pay fare in excess of the prescribed rate and he was permitted to recover the excess of fare paid in an action of assumpsit.

In the case of Westfield Gas Milling Co. v. Mendenhall etal., 142 Ind. 538, an Act of the Legislature of Indiana of 1887 had provided that incorporated towns and cities could provide by general ordinance to reasonably regulate the supply, distribution and consumption of natural gas within their respective corporate limits and to require a fee for the use of the streets, c. The town of Westfield, a municipal corporation, passed such an ordinance and provided a maxium schedule of rates to be charged to consumers for the supply of gas and fixed the price to be charged for kitchens and cook stoves at eighty cents per month for twelve months — $9.60 per year. Under said ordinance the Westfield Gas and Milling Company contracted with the municipality for furnishing gas to the inhabitants thereof and agreed "that in consideration of the town waiving its rights by law to require" the Gas Company to pay a license fee for the use of the streets, to furnish gas to consumers in the town "in accordance with a schedule of rates and prices fixed by said ordinance."

The Gas Company afterwards gave notice that when contracts with consumers then current should expire it would charge thereafter one dollar per month for the use of gas for cook stoves instead of eighty cents the then rate of charge. Certain of the inhabitants of the town who were consumers of gas and patrons of the gas company applied for an injunction to restrain said company "from carrying out its purpose to deprive them of the use of natural gas from the plant of the" company "upon the ground" that they "had refused to pay a price therefor in excess of the maximum rate fixed" by the ordinance. There was a demurrer to the bill of complaint and the same was overruled by the lower Court whose action was affirmed on appeal. The Appellate Court in its opinion said "The town had the right in granting the use of its streets, to impose such reasonable requirements, terms, regulations and conditions therein, upon those accepting the privileges and benefits of the grant, as its own prudence and discretion might dictate, so as not to restrict however, the town in its legitimate exercise of legislative powers. The authority to prescribe such terms and conditions, if not expressly conferred by the Act of 1887, may at least be reasonably inferred therefrom, in order that the full force and effect may be given to the power expressly granted."

Upon both reason and authority which commends itself to our approval we think the appellants have rights under the Ordinance No. 110 which they are entitled to enforce in this proceeding against the appellee.

The remaining ground of demurrer to be considered is that the bill of the appellants is multifarious because the appellants have contracts with the appellee each of which is distinct and separate from the other. We do not think the bill is open to this objection. "As to the doctrine of multifariousness all the authorities agree that there is no rule of universal application, and all concede that much must be left to the discretion of the Court in particular cases," see Brian et al. v. Thomas etal., 63 Md. 476-480; Neal et al. v. Rathell et al.,70 Md. 592-598. While it is true that the appellants have distinct and separate contracts with the appellee, and the facts alleged in connection with these contracts are to some extent variant, yet this under the circumstances of the case can create no difficulty or embarrassment in decreeing the relief which the bill seeks. The appellants all have a common interest in enforcing the duty imposed upon the appellee under the Ordinance No. 110 and this is, in substance and effect, what the bill asks to have done. The ordinance is the source and foundation of the rights asserted by all the appellants and in effect the relief prayed is that the ordinance may be decreed effective. The decree will be against the same defendant and in substance will give the same relief to each and all of the appellants. The case bears an analogy, in the aspect we are now considering to the case ofMayor and City Council of Balt. v. Gill et al., 31 Md. 375, where the complainants had distinct and separate interests affected by the causes of complaint and yet had a common interest in having the source and foundation of these causes removed.

As a consequence of the views herein expressed the decree of the Court below sustaining the demurrer to the bill of the appellants and dismissing the bill must be reversed.

Decree below reversed and cause remanded with costs to theappellants.

(Decided February 24th, 1904.)