Hodges v. Baltimore Union Passenger Railway Co.

Robinson, J.,

delivered the opinion of the Court.

This is an application on the part of certain lot owners on Park avenue, to restrain the appellees from laying down tracks for a horse-railway on the bed of said street.

In support of its right to construct the railway in question, the defendant corporation relies, 1st. On Ordinance No. 150, of the Mayor and City Council of Baltimore, authorizing certain parties and their assigns, to build a horse railway on certain streets named in the Ordinance, upon terms and conditions therein prescribed.

2dly. Its charter under the general railroad law to build a street railway, between certain termini in said city.

3dly. The Act of 1882, ch. 41, authorizing the defendant corporation to construct and operate a street railway in conformity with the Ordinance No. 150; and to charge such rates of fare as may he prescribed by the Mayor and City Council, and to lease and operate other railways in said city.

Other grounds in addition to these are also relied on, but, in the view we take of the case, it is unnecessary to state them here.

The right of the defendant corporation to build a street railway, is not therefore based solely on the Ordinance No. 150, of the- Mayor and City Council, and the question whether the municipal authorities, in the absence of express legislation on the subject, had the power to authorize a joint stock company or its assigns to use the streets of the city for the purposes of a horse railway, does not necessarily arise.

*619 Whatever conflict, if any there he, in the decisions of the several States on this question, it is well settled that the Legislature in the exercise of its sovereign powers may authorize the use of the streets of a city or town for such a purpose, and that such a use is not an additional servitude for which adjoining lot owners are entitled to compensation. Cooley Const. Limitations, 547-560; 1 Red. Railways, 314-326; Elliott’s Case, 32 Conn., 579 ; Hinchman’s Case, 2 C. J. Green, 76; West vs. Bancroft, 32 Vt., 367 ; 21 Illinois, 522.

The right thus to rise the streets of a city for a horse railway, is not based, it is true, either upon the ground of public convenience or public necessity, because the Legislature has no power to take the property of the citizen for a public use without just compensation. It rests, however, on the ground that such a use is neither inconsistent with, nor does it in any manner supersede, the ordinary uses for which the street was dedicated as a highway—that «the easement thereby acquired was the right to use the streets of a city, not only according to the then existing modes of travel and transportation, but all such other modes as may arise in the ordinary course of improvement; and that a horse railway is but one of the legitimate contingencies within the objects and purposes for which the street was dedicated to the public, and which we must therefore presume, was within the contemplation of the parties, at the time damages were assessed to abutting owners. 1 Redfield on Railways, sec. 320; 2 Dillon on Municipal Corp., 719; Railroad Co. vs. Leavenworth, 1 Dillon C. C., 393; Elliott vs. Fairhaven and Westville Railway Co., 32 Conn., 519 .

We do not see on what grounds such a use can be said to be the imposition of an additional servitude. The motive power is the same, and the iron 1 rails, although laid on the bed of the street, do not materially interfere with or obstruct other modes of travel and transportation. *620 On the contrary, the railway in itself offers a quick and rapid transit from one part of the city to the other, thus-affording greater advantages and facilities in the use of the street as a public highway. Nor is there any invasion of the legal rights of adjoining owners. Their title to the land subject to the public easement remains the same, and they have the same access to their property and to the use of the street as a highway. The cars may, it is true, be an annoyance, -but not greater, perhaps; than other modes of conveyance running at regular periods. But, be this as it may, it must happen in the very nature of things, that streets will be used for legitimate purposes which may be to some extent an annoyance to persons living upon them; but this is an incident to all city property and for which there is no legal remedy. Assuming then that the Act of 1882, ch. 47, authorizing the defendant corporation to construct a horse railway on certain streets of the city of Baltimore is a valid Act, we are of opinion that the use of Park avenue for this purpose is not such an invasion of the rights of the complainants as to entitle them to an injunction. The question then resolves itself into this, is the Act of 1882 a valid exercise of legislative power ?

This Act is assailed on two grounds. First, it is said to be in conflict with sec. 48 of Art. 3 of the Constitution, which provides that corporations may be formed under general laws, but shall not be created by special Act of the Legislature. The answer to this objection is that the defendant does not derive its charter under the Act of 1882. On the contrary, it was incorporated under the general law of 1876, ch. 242; and the Act of 1882 merely amends its charter and confers additional powers and privileges. The right to amend the - charters of all corporations created under the general corporation laws of this State is expressly reserved to the Legislature. Sec. 48, of Art. 3 of the Constitution. We find nothing in the Constitution to justify the construction that such amend- *621 merits must be made by general laws operating alike on all corporations. One corporation may need to have its powers enlarged, while it may not be advisable or necessary to confer such powers on other corporations. And besides, the objects and purposes of corporations differ so widely that it would hardly be practicable to provide by general law for such amendments as they might from time to time require. Prom the adoption of the Constitution to the present, the Legislature has exercised this power by special Acts, and the rights and privileges conferred on corporations by these Acts have been repeatedly before this Court for determination, but the power of the Legislature to make such amendments has never been questioned.

Then again, it is argued that the Act of 1882 is in conflict with sec. 33, of Art. 3, of the Constitution, which provides that the Legislature “shallpass no special law for any case, for which provision has been made by an existing general law. ” This assumes that provision has been made by a general existing law conferring on the defendant corporation the privileges claimed under the Act of 1882; and in support of this view the counsel for the appellants rely on the Act of 1831, ch. 252, sec. 856, of Art. 4, of the Public Local Laws and the general railroad law of 1816, (ch. 242.)

Now the Act of 1831, authorizes the municipal authorities on the application of a majority of lot owners fronting on any street, to pass such'Ordinances as may be necessary for the construction of railway tracks, and to assess on the owners of such lots, their just proportion of the expense of such-construction. It further provides that any owner of a . front lot may at his own expense construct a sideling or turnout to enable him to have the beneficial use of said railway. This Act was passed long prior to the introduction •of horse railways for passengers, and it is very clear that its provisions have no application or reference whatever to such railways.

*622 In regard to the general railroad law of 1816, we should question very much hut for the decision in Oler’s Case, 41 Md., 583 , whether this Act was intended to apply to street railways. Few, if any, of its provisions have reference to railways of this character. Section 13 of that Act provides, that if it shall be necessary in the location of any railroad, to occupy any road, street, or ground of any kind, the municipal or other public authorities having charge thereof, and the railroad company may agree upon the manner and terms upon which the same may be used, and if said parties are unable to agree, the .company may appropriate so much of the same as may be necessary, in the same manner and upon the same terms as provided for in the appropriation of the property of individuals by the tenth section of that Act, provided also that such railroad company shall be responsible for •injuries done to private property. This section further provides that no railroad company shall be allowed to pass through the city of Baltimore without the consent of the municipal authorities.

Section 14 authorizes such railroad companies to charge •for the transportation of .passengers not exceeding three cents per* mile; and for the transportation, of property other than coal, ores, or other'' minerals, not exceeding five cents per ton per mile.

These provisions, it is plain, have no reference to the •construction of. street railways for passengers.

There is then no general law conferring the rights, and prescribing the terms and conditions on which the defendant was to construct and operate its railway on certain streets in the city of Baltimore; and the Act of 1882, ratifying Ordinance No. 150, and authorizing the defendant to build and operate its railway on such streets and on such conditions as the Mayor and City Council -of Baltimore may prescribe, is not therefore in conflict with sec. 33, of Art, 3 of the Constitution,

*623 (Decided 13th July, 1882.)

It was further argued that the defendant corporation had forfeited its rights under Ordinance Ho. 150, assuming it to be valid, because the work was not begun within the time prescribed by the Ordinance. This is a provision, however, intended for the benefit of tire city, and one which its authorities may w'aive at pleasure. Ho principle is better settled than that a cause of forfeiture cannot be taken advantage of or enforced against a corporation collaterally or incidentally, or in any other mode than by a direct proceeding for that purpose against the corporation. Angelí & Ames on Corporations, sec. YTY, and cases cited.

' There is nothing in the Act of 1828, chapter 135, under which Park avenue was opened, which limits the authority of the city or Legislature over the street. Under the provisions of that Act it became a public highway, and as such it is subject precisely to the same uses as any other street.

For these reasons the order of the Court below refusing an injunction will be affirmed.

Order affirmed, and bill dismissed.