Consol. Gas Co. v. Baltimore County , 99 Md. 403 ( 1904 )

This is an appeal from an order of the Circuit Court for Baltimore County sustaining a demurrer and dismissing a bill of complaint filed by the appellant against the appellees for the purpose of vacating a contract made between the appellees, and for an injunction to restrain one of the appellees from exercising certain rights and powers conferred upon him by the contract. The agreement is dated in July, 1903, and was made by and between the County Commissioners of Baltimore County and the appellee, Schreiber, under which "he was authorized and empowered to lay and maintain for the period of twenty-five years gas-pipes and mains with such connections as may be required for the purpose of furnishing gas for public as well as private lighting and for heating and other purposes, in the several streets, avenues, and alleys, so far as the same are public streets, under the control of the party of the first part, situate in the villages and towns of Orangeville, Highlandtown and Canton and in the streets and avenues connecting the same, in Baltimore County."

To the bill, a demurrer was interposed, and one of the questions thus raised, did the County Commissioners of Baltimore County, have power to make the contract and grant the franchise, here in dispute, under the provisions of the Act of 1902, ch. 368. The title of this Act is an Act to legalize and regulate the granting of franchises for public purposes by the County Commissioners of Baltimore County.

It will be seen that by the first section of the Act it is provided that no franchise or right in relation to any highway, avenue, streeet, lane or alley, either on, above or below the surface shall be granted by the County Commissioners of Baltimore County, unless certain requirements of the Act are complied with.

By the second section, it is provided, if no valid objection is made to the granting of such franchise, and it appear to the board that the granting of the same is expedient and proper, the board shall have authority to grant such franchise, for such money compensation as it shall * * * determine — every grant of any such franchise, shall make provisions * *.

By sec. 3 when the grant of a franchise or right is made the County Commissioners shall not part with, but shall expressly reserve the right and duty, at all times to exercise full municipal control and regulation in respect to all matters connected with the grants not inconsistent with the terms thereof. And by sec. 4, it is provided, that nothing in this Act shall be construed as affecting any private rights or the rights of adjacent landholders as now held and enjoyed by law.

It is perfectly manifest, we think, that by the true construction of this Act, that the County Commissioners of Baltimore County, had full power to make the contract here in controversy, and to grant to the appellee Schreiber, the rights conferred by it.

But the appellant, insists that under the Act of 1886, ch. 384 and 395 (now Art. 3, § 114, 3, § 115 and 3, § 116, P.L. Laws of Baltimore County) it enjoyed the exclusive privilege to lay mains and sell gas in that county.

But we do not so read and construe those Acts. They were Acts, as indicated by their titles, affecting the formation of gas companies in Baltimore City, Baltimore and Anne Arundel Counties, and they distinctly prohibit the formation of gas companies in those counties, and also provide that no gas companies chartered in any other counties of the State shall have the right to lay mains or sell gas in the counties. And to repeal and annul charters for gas companies, except as therein provided.

Now according to the language and meaning of these Acts, they were never intended to apply to individuals, but relate solely to incorporated and chartered gas companies, and therefore have no bearing upon the decision of this case.

Now do we find any force in the appellant's contention that the franchise granted the appellee in this case "affected any private rights," previously granted it. The 4th sec. of the Act of 1902, simply protects vested rights in the streets and highways of Baltimore County, and prohibits their destruction by the County Commissioners, in making contracts under the Act.

There were other questions presented and argued at the hearing, but as those passed upon by us are conclusive of the case, we shall not discuss them here.

We agree with the conclusion reached by the Circuit Court for Baltimore County, in holding that the appellant has no exclusive right to lay mains and sell gas in that county, and that the County Commissioners had full power, under the Act of 1902, ch. 368, to grant the franchise in question, the appellee having complied with the requirements of the Act. So, for the reasons given by us, the order of the Circuit Court for Baltimore County dated on the 11th of November, 1903, sustaining the demurrer and dismissing the plaintiff's bill will be affirmed.

Order affirmed, with costs.

(Decided June 8th, 1904.)