United Railways & Electric Co. v. Hayes

Fowler, J., the.opinion of.the. Court The United 'Railways, and: Electric ¡Company;of,-Baltimore Qty.qn the 28th Augustlast, ¡under the provisions', of; the Baltimore, Code. of 1,893,, made .appljcatiqudtQ.the, Cfty; Engineer £qe;E -permit- to.tear up and,ppenjthe.bed,of ¡Wil-kin^ayenue frorp |B;runs.vyiek ¡street :westwardlyi;tp ¡the present,icity -litnifs, as shown on the plan submitted with the application ‘J fqp;th,e purpose, of .laying, its .double. passenger ,ira,ijwray frackeiydnch th,e,City,and; S.ubu.rbpn,; Rail way Company ,vyas¡;authoi;i,?ed> to layLy Ordinance No..34.of. the- Maypr and City.C.ouncib.of Bnltinxore,.apprpv-ed April 2nd,..^894.”„ ,.This,application,¡wa$ refused, by-the h(layor; and. the City Engineer,, whereupon; ¡the railway conjpany- filed apetitiqn in;.the¡Superior,Court.foipthe .vyrit-of lyiandamus requiring ¡the.¡city,engineer,.to,-issue and.th? i^ayor tpmpproye. ¡the, .permit .to gaid .company.tp- lay- its, tracks •as s.et ,fp,rth in ¡its application,,apd: as authorized ¡irt-the ordinance therein mentioned- .T-he-case was submitted qp petition, apswenand agreed. statement: of facts and by a pro. foyma oydey the petition was dismissed.; The petitioner has appealed?;?:. ;,;It is conceded that .by yarious consolidations the petitioner became , entitled; to all.. the ; rights,; privileges and franchises .granted.by Ordinance. 150 of.,i;88;o, .Ordinance No. 40 of,1.882, *492 and Ordinance No. 34 of 1894, but it is contended by the defendants : 1st. That Wilkins avenue had been properly “paved” for such length of time that the petitioner has forfeited all its rights under Ordinance No. 34 and section 11 of Ordinance 150 to construct its tracks, because it has failed to commence the work within six months from the time said avenue was properly graded and paved, and has not completed the work and commenced the regular running of its cars within twelve months after that time ; and 2nd. That Ordinance No. 34 of 1894, has been repealed by section 3 of the Act of 1898, chapter 123, commonly known as the “ New City Charter,” inasmuch as the provisions of said ordinance, relative to the laying of tracks on that portion of Wilkins avenue from Brunswick street to the city limits, are inconsistent with the provisions of that Act, and are, therefore, repealed by said Act by implication as fully as if said ordinance had been in fact repealed.” We will consider the questions presented by these two propositions in the order in which they are stated above; but before doing so, it may be well to transcribe the exact language of the ordinances relied on by the defendants to sustain their position. Section 11 of Ordinance iso of 1880, reads as follows: “And be it further enacted, &c., that the said proprietors, &c., their successors and assigns shall commence the work of laying down and constructing the railway tracks, aforesaid, within six months from the approval of this ordinance, and shall complete the said work and commence the regular running of cars within twelve months after the approval hereof, otherwise the rights and privileges herein granted shall be null and void: Provided that the provisions of this section shall not apply in case any of the streets hereinbefore named may not have been graded and paved at the time of the approval of this ordinance ; or should any of said streets be undergoing repairs by the city authorities in such manner as would interfere with the laying and constructing of the railway tracks, aforesaid, then the time for the completion of said railways, as herein- *493 before provided, shall be extended for a period of twelve months from the completion of such repairs, the tracks of said road, however, to be laid on such streets or parts of streets, as far as opened, paved and graded.” By Ordinance 34 of 1894, the City and Suburban Railway Company was authorized to extend its double track on Wilkins avenue from its terminus, at that time at Brunswick street, to the city limits as extended by the Act of 1888, chapter 98. The title of this ordinance is “An ordinance supplementary to Ordinance No. 150, approved October 25th, 1880, and to permit the City and Suburban Railway Company to extend its double tracks of passenger railway on Wilkins avenue from the present terminus to the city limits.” It was provided by this Ordinance No. 34 that “the construction, use and enjoyment thereof, be subject to all the conditions contained in the original ordinance and any supplements thereof heretofore passed.” It is conceded, of course, that section 11 of the original Ordinance 150, applies to the additional franchise granted by Ordinance No. 34, namely to extend the double tracks of the petitioner from the old city limits at Brunswick street to the new city limits as fixed by the Act of 1888. But it appears that the tracks so authorized by Ordinance No. 34 were not constructed immediately, nor was any application for a permit to lay them filed with the city engineer until the 28th August last, and hence the question is presented whether such application was made within the time limited by section 11 of Ordinance 150, that is to say that section which provides that the work of laying the tracks must be commenced within six months from the approval of the ordinance and must be completed within twelve months, otherwise the rights and privileges granted would be void. It was provided, however, that the provisions of this section should not apply to any streets therein named which might not have been graded and paved at the time of the approval of the ordinance. The narrow question which the proposition we are now considering involves, is whether under the admitted facts of this case Wilkins avenue was graded and paved at the time of the passage *494 of ¡Ordinance ¡Mol '34., that!i-s! tó'say- on the 2ndbf April, TS’piqi ,T>he ¡contention 'of the petitioner is thaHt-'neveV; Wá's'ánd is ndt now ¡graded''and -'paved-within-the meaning'of 'tííé ’órdiría'nfcé's iníiqiieStio'm --¡By 'an>'examination 'bf'thiS'kgréed'-Statefrtéñt of facts; we learn fthatWilkinte 4veniié;-oñ*which -llh'é pétftíbríer-'d'eSiresntdíilayj itsi tracks-as ¡sét¡fóitH’m -fts-'applicktio'rt’td'thii bfty Engineer, is: aniio;ltí county roádj'-thát fróm''Bfúhsw;i,ck)Sti;eet'td the -.cityhlimifs'i ‘-‘thé'f-oadway-BaS''béen’ .mackdkmiz'ed''fidtfi! twenty-. ;to¡ thirty feet r in' width1 with i'bf-bfcéíñ"1 stbrié',’this' ’w'drk’ having!-been’"d’ohe-fVvphí tihietd tim'e; hS the'ccfnditióríá'bE tlíé road i required.” •; At thé -présdnt: tithe'1 -its 'CtíriditrérPiS that df thh average 'turnpike-toad in this vi'citdi^y-' '< '■ '¡■-1' ■; ■ - -1 From; the bridge ■ we'StWard> to'-'’¿vitLfi’n ¡five h'i!i'rídredvfefe:t of the southern 'city;.limits Hie ¡roadway is-'gradéd1 from' thirty td forty feét'Widep¡to-'obtain' tbe-fulDwidth 'Wilbrequifé'k'fill bf-téti'tó fifteen feet at certain points. 1 •* 1 s* .- ¡'‘''Wilkins' aileiitie fr’cihf Brún'swickístfeet' tío th'é'soUthefn bfty'limits'wksgrkd'éd, shaíped up >and then 'macadamized' with '¿rushed1’stone."Y 1 Itthils'kp-i péárs' that- ithd'kvéñúe' WaS'ñot mkdkdafa'i'zed. its’-whole''Width; biit that ‘-‘broken'-stone” 'Wás'plkcéd in !k''strip irifthfe middíé'ttí make'-.a solid road-for winter, while the” remainder df-'the bed ivas what;is ordinarilytéfiméd'a-dirt road; ‘-,li *' ':>'In 'our'Ppifiioñ'iriis too-clear'for'conlíróvtefsy,1 that kT'daddf áven’úe- thiis macadamized ,is: nóB‘‘graried'-krid paVéd’5’5 ilMhiii tliemeaning- of '-iht ■city ordiricmtizs} When' Ordinarícé’ 1 '56; whibh ‘we! aire'Considferiííg^Was’-pásséd-'the' then’City Cdd'e,’ (Art.' '47' sec:-'39)7-provided1 that’ “all-streets,1 láñete -ór a'lléys ttí be'-pavéd -shall ¡be''payed ’wStK-fübbléstbiie,''of s'ú'ch'.bihíél- stdne' ate -"the ’ city’ - cdmmissiónér 'Shall1 éorísidér' iáu’ffibíently duráblBj the!Stórie¡ tó'¡b:e'«Wie’sst-hkrí1’4-6-square-inches7 orí :thé-sürfáce; é%cfept‘''thé,’paft'' between' -tfhé! kerb'áñd'thé‘gutter ‘\vhi!Gh may be-'ofi'súch¡ smaller;'size:'aS"diféctéld’iby'thé1 City Cbihríiíssióríé‘r,‘ and' at 'l'éást; ¡six* inches' In dépthy -to: bé - placed '-upright 'id 'a* bed bf'Sahd' dr' gravel; at‘feast‘bufe foot'-íri; depth; 'ánd the'iríteí-' stices'-’shall -'be1 filled ¡up With'Stdhe 'ofi thé;'éizé:árid7qtík!lfty'tb' b'é-presc'fibecf bythe City-Commissioner.'-’ 1 No’rísiríbe1 Ordinance 1150 «was ' passed ’ irí1 r 83'o',: has any authority Been gNéri *495 by, the, city to, use,.macadam -for tlie.'purpose ¡of* if paving”- its stré.ets; but:by‘frfesolution¡iof <the Mayor and>Gity<Gouhcil-Nof 67, approved July 2nd, 1897, property-holders-'in the annex \yerfe, Authorized .to ¡ improve- -the- roads' in- front elf, their property either byigrading-dnd;paving.or,by :gráVelling or; macad-5 amizing theqi.in .unimproved.or parjly.improved’Streets :•* *- “ini s:uch imannerdas nthenmájórijy 1 bf then owners .--V- ft! i.-.* shall agree-.upbn'd’, / Here ! the two/ distinct and 'Separate methods ;ofi improving! streets.are-mentioned, and grável-amd macadám.-.appear to be placed,in-the: Saméeeláss.b; -’But 'in addition- tb th-is; untíér the City ordinances the5 cost >ofi “paving”' a (.Street is-assessedupon the 'owners ofit-he ábuittingpróperty- and-' sit;< appears ¡by the 1 agreed statements of facts-that the's'oj called,paving;bfl Wilkins aven-ue was done, byi the¡ City .Góim tnisisione'r-,under; several ¡resolutions which authorized .hitm to re-páir the- aVenue-.with “b'rbken. stone-.-” ; »The whole > cost5■ of this, work was- pa-id for.by.thei.éity; a?; far:as-Wé are-informed byithe, facts.iñ,the> record.Certainly theréís-fioficlaim made by the- .defendants/ that,the property Owners ,wefé;eVer-cáll'ed on to pay any part of the expense of the work authorized-by the. .resolutions we have mentioned-;./ But; as.-we have said; We think, the;¡qüestion> toó .clear, .to--réqüirei fú-rthér eláborátion.;- In this- connection;,however,; we may refer tó thé case of Leak v. The City of Philadelphia, 150 Pa. St. 643, which sustains the view we .have; taken.1.'' In the -opinión of ■ Judíje- Willson in the Court-below,, which<.waS; adopted by .the Supreme Court, it is said»-:- “A.¡clear distinction has-been recognized'between"mere artificial road bed and; a paved: road bed/; ■ This, was1 expressly stated • .ini th^- Act ,of 1 April i sr s>t,- ;i 864 < <«*. - * ’ in which-it'Was provided .that ¡upon-- the. petition iofi ¡a,’majority:.of th’d owners- of the.ground, ion: any-streets- in"> certain;.wardsmotialready»paved; councils might ;diréct- that, the said’streets’: shall'be macadam-’ ized.in-a- suitable'manner, iristead;of béinglpaved:’’. ■'■Wehave' alread.y^ointed out a suhs’tántiallyí similar provision in:the Baltimore City,Code.., ..Continuing,¡the: learned Judge:in the'case-just’ cited ¡said: “I do-not ¡regard, a macadam ■ rbád ás paved in the meaning of the- term’ as it- has-been, employed "in the- stat-i *496 utes and ordinances applicable to this city. Such a road is artificial, improved, it may be, but not paved in the technical or natural sense of the word.” II. We will briefly consider the second proposition on which defendants rest their defense, namely, that the third section of the Act of 1898 (the new city charter) repeals the ordinances relied on by the petitioner and by which it claims it is authorized to lay its tracks on Wilkins avenue from Brunswick street to the city limits. By the section referred to it is provided that “ all ordinances * * * now in force and not inconsistent with this Act shall be and they are hereby continued until changed or repealed.” But section two of the same Act provides “ that this Act shall not affect or impair any right vested or acquired and existing at the time of the passage of said Act and provided that this section shall not be construed to make irrepealable or irrevocable any right which before the passage of this Act was repealable or revocable ; nor shall this Act impair, discharge or release any contract, obligation, duty, liability or penalty whatever now existing.” It follows from what we have said in discussing the first proposition that the right to lay the tracks on Wilkins avenue as provided by Ordinance 34 was not forfeited, and if so it was a right existing when the new city charter was passed and adopted by the Legislature. In Baltimore, Canton and Point Breeze Railway Co. v. Latrobe, 81 Md. 222, we held that the right to lay tracks on streets of Baltimore given by Ordinance 150 was such a clear right as entitles the petitioner to the writ of mandamus to compel the issue and approval of a permit. The only question, then, is whether the ordinances relied on are inconsistent with the charter of the city and therefore repealed by implication under the provision of the third section thereof, which provides that only ordinances not inconsistent therewith are continued in force. In what respect are those ordinances inconsistent with the new charter ? It is true that the latter provides that railway companies now shall pay for any privilege to lay tracks in any of the streets and *497 that certain other provisions are therein contained giving the city the right to purchase franchises at the expiration of a certain period. But these provisions evidently were intended to apply to the future. This we think 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. Under the new charter the grants of franchises were revocable — and so is the franchise now claimed by the petitioner under the ordinances in existence before the new charter was passed. It was so held in the case of Lake Roland Elevated Railway Co. v. Mayor, &c., 77 Md. 381, and, of course is conceded by the petitioner. Reading sections two and three of the new charter together, we think that so far from there being a repeal of the ordinances in question by implication, it is quite obvious that no repeal was contemplated. (Decided January 18th, 1901.) Order reversed with costs and cause remanded.