80 Md. 535 | Md. | 1895
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.”
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
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
- 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.