Mayor of Baltimore v. President of Baltimore & Yorktown Turnpike Road

Robinson, C. J., delivered the opinion of the Court. The Baltimore and Yorktown Turnpike Company was incorporated by the Act of 1804, chapter 51, to build and maintain a turnpike road from the city of Baltimore to the Pennsylvania line. By the Act of i860, chapter 209, the company was authorized and empowered to build a passenger railway on its road-bed from Baltimore to Towsontown. Having built and operated the street railway- for a number of years, the company, under power conferred by the Act of 1872, chapt. 337, sold and conveyed to the Baltimore Union Passenger Railway Company the franchises, rights and privileges of the street railway conferred upon it by the Act of i860. Having thus disposed of the street railway, the Turnpike Company, by its deed dated 19th October, 1893, conveyed to the Mayor and City Council of Baltimore that part of its road lying within the city limits, as extended under the Act of 1888; subject, however, to the grant made to the Baltimore Union Passenger Railway Company of the franchises, rights and privileges of the street railway, and subject also to the rights of the City and Suburban Railway Company, its successor. The right thus to surrender this portion of its road is claimed by the Turnpike Company under the Act of 1824, chapt. 105, codified as Sect. 818, Art. 4 of Public Local Laws for Baltimore City, which provides: “ The president, directors and companies of the different Turnpike Companies owning roads running into the city of Baltimore may cede to said city such parts of said roads as lie within the corporate limits of said city, and the same, when ceded, shall be in all respects subject to the same regulations as unp'aved public streets.” — 542 — This deed, however, the city authorities refuse to accept, and they insist that the word “cede,” as used in the Act, is synonymous with and to be interpreted in the same sense as the word “grant,” and being a grant, the deed is inoperative until it has been accepted. And we have been referred to quite a number of dictionaries, as to the meaning of a word in no sense a technical word, but one in every-day use, and about which there ought not to be any difficulty as to its natural import and meaning. Like many other words, its precise meaning and signification depend somewhat upon the subject-matter in connection with which it is used. In some instances, it may, it is true, be used in the sense of “grant,” but ordinarily it means to “yield,” “surrender,” “give up.” But this, however, is not merely a dictionary question. We are dealing with an Act of the Legislature, conferring upon a Turnpike Company the power to cede to the city that part of its road lying within the corporate limits, and which, when ceded, the Act declares shall be a public street. There can be no difficulty, it seems to us, as to its meaning thus used. The Turnpike Company having accepted its charter and having built its road, could not at its own pleasure “cede” or “surrender” any portion of its road, unless by power conferred by the Legislature. Nor could' the city, however desirable it might be, acquire any part of turnpike road within its corporate limits except by purchase or by condemnation. And this being so, the object and sole object of the Act was to confer this power upon the Turnpike Company, should it deem it advisable to surrender any part of its road to the city. It was never supposed for a moment that there would or could be any objection on the part of the city authorities to a surrender of the road thus made without compensation, by which a toll-road within the city limits was thereby made a free highway. And hence the Act declares that the portion of the turnpike thus ceded shall thereupon become a public street. All the Act requires or means is that the Turnpike Company shall cede to the city the portion of its road lying within the cor — 543 — porate limits, and when ceded, the road, by operation of the Act itself, becomes a public street, and this too without any act of acceptance on the part of the city authorities by ordinance, resolution or otherwise. But then again it is said the power to cede is limited to that part of road lying within the city limits at the time the Act was passed; and the Turnpike Company has no power, therefore, to cede that part of its road lying within the city limits, as extended by the Act of 1888. The Act does not so say in terms ; on the contrary, the power is conferred in general terms, and it would, it seems, be a narrow construction of a power mainly conferred in the interests of the city itself. We cannot agree with the counsel for the appellant that the Legislature could not have foreseen that in sixty or seventy years the limits of the city would be extended two miles at least beyond the old city limits. We see no good reason for imputing such a want of foresight to the General Assembly. Baltimore was at that time a growing and prosperous city, and to any one of ordinary judgment, it must have been apparent, we think, that an extension of its limits at some time in the future would be absolutely necessary to its proper growth and development. Whether one mile or two miles, or even further, no one could tell, but any extension of its limits would necessarily include portions of some if not all of the several turnpikes then leading in every direction from the city. And as it would be to the interest of the city that these several turnpike roads should be converted into free highways, this power was not restricted to the portions of the roads within the city limits at the time the Act was passed, but was conferred in general terms, thereby enabling them to cede not only such portions, but also such parts of their roads as might be within the city limits, should the limits be thereafter extended. We come, then, to the last objection and one which it seems to us is fatal to the deed in question, and that is, the deed is made subject to the grant of the Turnpike Company to the Baltimore Union Passenger Railway Company of the — 544 — franchises, rights and privileges of the street railway, with the right on the part of the latter company to use, manage and enjoy such franchises in perpetuity, and subject also to •all the rights of the City Suburban Railway Company, its successor. The Act of 1824 does not make it obligatory on the Turnpike Company to cede any portion of its road to the city, but if it proposes to exercise the power thereby conferred, it must make the cession without the reservation of any rights either in his own behalf or of its assignees. It has no right to surrender a part of its road burdened with easements which it claims the right to create in perpetuity. The Act contemplated and by every fair rule of construction means that the turnpike shall be ceded unencumbered, and when so ceded the Act declares that it shall thereupon become subject to all the regulations applicable to unpaved public streets. How far and to what extent this deed, made subject to the grant of the Turnpike Company tp the Baltimore Union Passenger Railway Company, would affect the control of the city authorities over the portion of the road thus ceded, it may not be easy to determine. It is sufficient to say, that if it would not in any manner interfere with their control over it as a public .street, then it was altogether unnecessary to make the deed subject to this reservation, while, on' the other hand, if it would interfere with such control, then the Turnpike Company had no right to surrender the road on such terms. And it is no answer to say the street railway was built and its franchises were sold under power conferred by the Legislature.. This may be true, but when these franchises and powers were granted the turnpike belonged to the company, and the portion of its road on which the street railway was built was at that time beyond the corporate limits and in no manner subject to the control of the city. And whilst the extension of the city limits can in no manner affect the franchises and privileges granted to the Turnpike Company, in connection with the street railway, át the same time, if it proposes to cede to the city part of the turnpike now within the corporate limits, the cession must be made without — 545 — reservation as to easements created by it without the assent or concurrence of the city authorities. And this brings us to the only remaining question, and that is: Whether the Turnpike Company has the right to grade its road within the city limits as extended by the Act of 1888. As a general rule the Mayor and City Council have the exclusive control of the highways and streets within the corporate limits. But the Turnpike Company was chartered by the Act of 1804, and there is no reservation in the charter itself, nor in any general law, nor in the Constitution then in force, reserving the right to amend or alter the charter thus granted. It became, therefore, a contract between the State and the corporators, within the protection of the Constitution of the United States, which forbids any State from passing laws impairing the obligation of contracts. Among the powers granted to the company was the right to grade its road, and this right we have said is a continuing right, to be exercised from time to time, as the necessities of the company or the public convenience may require. Peddicord’s case, 34 Md. 463. Being then a chartered right, the extension of the city limits, so as to include part of the turnpike, could not interfere with or deprive the company of the lawful exercise of this right. Neither the city authorities nor the Legislature itself could deprive it of this right. At the same time, the exercise of this right is subject to the paramount governmental power, known as the police power, inherent in every well-organized government, and to be exercised when the safety and welfare of the community requires it. It is a power which the Legislature can neither alienate nor surrender, and every chartered privilege is granted on the implied condition that it is to be exercised subject to this power. As was said by Mr. Chief Justice Fuller, “ It is likewise established that the inhibitions of the Constitution of the United States upon the impairment of the obligations of contracts, or the deprivation of property without due process of law, or of the equal protection of the laws,° by the States, are not violated by the legitimate exercise of legis — 546 — lative power in securing the public safety, health and morals. The governmental power of self-protection cannot be contracted away, nor can the exercise of rights granted, nor the use of property, be withdrawn from the implied liability to governmental regulation in particulars essential to the preservation of the community from injury.” N. Y. & N. E. R. Co. v. Bristol, 151 U. S. 567. (Decided February 28th, 1895.) - Now, the proof shows that in grading its road within the city limits, the turnpike bed has been lowered from three to four feet below the surface of certain public streets which intersect the road. The public is entitled to the use of these streets for all the purposes for which they were opened and dedicated. It is entitled to the use of them in going to and from the turnpike road, and the company has no right to so grade its road as to endanger the safety of persons thus lawfully entitled to the use of the public streets. The grading has been done, and all the city now asks is to be reimbursed or compensated'for expenses necessarily to be incurred in making the grade of the intersecting streets conform to the grade of the turnpike. And this we all agree the city authorities have the right to demand. In the brief of the appellees the point is made that this bill has been filed without the lawful authority of the Mayor and City Council. It is filed by the -city solicitor in the name of the Mayor and City Council, and in the absence of proof to the contrary, we must presume that it was filed by their authority. As to the City and Suburban Railway Company, we agree with the Court below, that the bill ought to be dismissed as to that company. Decree affinned in part and reversed in part, and cause remanded.