Chenoweth v. Maloy

• Decision Date: 26 June 1923
• Docket Number: 42.
• Parties: CHENOWETH ET AL. v. MALOY ET AL., PUBLIC SERVICE COMMISSION.
• Court: Maryland Court of Appeals

123 A. 77

143 Md. 622

CHENOWETH ET AL. v. MALOY ET AL., PUBLIC SERVICE COMMISSION.

No. 42.

Court of Appeals of Maryland

June 26, 1923

Appeal from Circuit Court of Baltimore City; Henry Duffy, Judge.

Suit by Oscar B. Chenoweth and others against Wm. M. Maloy and others, constituting the Public Service Commission. From a decree of dismissal, complainants appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER, and OFFUTT, JJ.

John E Dempster, of Baltimore, for appellants.

N Charles Burke, of Towson, and Joseph C. France, of Baltimore for appellees.

William H. Maltbie and Joseph C. France, both of Baltimore, for United Rys. & Electric Co.

BOYD C.J.

This is an appeal from a decree sustaining a demurrer to and dismissing the bill of complaint filed by the appellants against the appellees, constituting the Public Service Commission of Maryland. The bill alleges that the plaintiffs (appellants) individually and acting as the civic committee of the Sixteenth Ward Republican League, are residents of the city of Baltimore, and are daily riders and passengers on the street railways of said city, and as such riders and passengers are financially interested in the rate of fare charged by the United. Railways & Electric Company of Baltimore city within the corporate limits of said city, as defined and limited by chapter 313 of the Acts of the General Assembly of Maryland of the year 1900.

The sole question in this case, as stated in the brief of the counsel for the Commission, is:

"Has the Public Service Commission power to grant the United Railways & Electric Company of Baltimore the right to collect a greater rate of fare for passengers over its road than that prescribed by chapter 313 of the Acts of 1900?"

That act is now section 796 of the Revised Charter of Baltimore City of 1915, being section 768 of article 4 of Public Local Laws, title "City of Baltimore," and is as follows:

"796. The United Railways and Electric Company of Baltimore, its successors and assigns, shall charge five cents, and no more, as a fare for the conveyance of each passenger over twelve years of age, and three cents, and no more, for each child between the ages of four and twelve years, from any point on any of its lines to any other point on such lines within the city of Baltimore: Provided, that such company shall give a free transfer, when the same shall be requested, upon the payment of each cash fare, which transfer shall be good at all points of intersection of lines of said railway for a continuous ride, except at such points on said lines where such form a route so as to permit a passenger to return in the same general direction of the line upon which the transfer was issued, the privilege of the transfer not to apply to the terminus of any line or route: Provided, that nothing in this act shall be construed to affect any of the interests of the mayor and city council of Baltimore in the said United Railways and Electric Company of Baltimore, or any of the railways consolidated under the corporate name."

The Public Service Commission on the 31st day of December, 1919, passed order No. 5327, providing that on and after January 1, 1920, and until midnight December 31, 1920, and no longer, unless such time be extended, the United Railways & Electric Company should be permitted to charge 7 cents fare for each passenger 12 years of age and 4 cents for each child between the ages of 4 and 12 years on any of its lines, and there are certain other provisions in it not necessary to mention. Then, on the 28th of December, 1922, the Commission ordered that changes be made in certain of the existing zones as there set forth, which continued the increase of fare set out above until midnight on the 30th day of April, 1924, unless modified or superseded by the Commission, etc.

The Act of 1910, chapter 180, p. 338, created and established the Public Service Commission, prescribed its powers and duties, and provided for the regulation and control of public service corporations and public utilities, etc. Section 13 of that act in part is as follows:

"All charges made or demanded by any such common carrier for the transportation of passengers, freight or property, or for any service rendered or to be rendered in connection therewith, as defined in section 2 of this act, shall be just and reasonable and not more than allowed by law or by order of the Commission, conformably with the law. Every unjust or unreasonable charge made or demanded for any such service or transportation of passengers, freight or property, or in connection therewith, or in excess of that allowed by law or by order of the commission, conformably with the law, is unlawful and prohibited."

The appellants contend that the words "conformably with the law" in section 13 are words of limitation on the powers of the Commission to increase rates. That language does not seem to us to present any difficulty. When the statute says that "all charges made or demanded * * * shall be just and reasonable and not more than allowed by law, or by order of the Commission, comformably with the law," it means what it says--that the charges (a) "shall be just and reasonable," and (b) "not more than allowed by law"--that is to say, those fixed by statute then in force or which might be thereafter passed, or (c) those fixed "by order of the Commission, conformably with the law," i. e., those fixed by order of the Commission, provided it conforms with the law in doing so. Every unjust or unreasonable charge is declared to be unlawful and prohibited, and cannot be in excess of that allowed by law, or by order of the Commission, conformably with the law--that is to say, an order passed which is authorized by the law.

We can illustrate the meaning of the term by reference to some of our decisions. In Pub. Ser. Com. v. U. Ry. & E. Co., 126 Md. 478, 95 A. 170, it was said by Judge Burke, speaking for the court:

"It is well settled that the Public Service Commission can exercise only such powers as the law has conferred upon it. If an order complained of is not within the scope of the authority conferred by law upon the Commission, it is unlawful, and it is the duty of the court, when applied to, to restrain its enforcement."

Judge Stockbridge, in speaking for the court in Havre De Grace v. P. S. C., 132 Md. 16, 103 A. 319, considered the powers of the Commission at length, and referred, amongst other cases, to Pub. Ser. Com. v. N. C. Ry. Co., 122 Md. 355, 388, 90 A. 105, 118, where Judge Thomas said:

"It must be observed that the power of the Commission to fix reasonable rates, etc., is legislative--Gregg v. Laird, supra , and that the functions of the court in reviewing the actions of the Commission are distinctly judicial, and are exercised only for the purpose of determining whether such action of the Commission is unreasonable or unlawful."

Other cases might be cited, but it is unnecessary.

We cannot understand how it can be said that Gregg v. Pub Ser. Com., 121 Md. 1, 87 A. 1111, is not applicable to this case, as we deem it conclusive of it, and practically covers every point involved. As shown by Judge Stockbridge in that case, chapter 387 of the Acts of 1892 had undertaken the regulation of rates to be charged by telephone companies for the service rendered to their subscribers. The rental fixed by the act was a flat rate of $6.50 per month for one telephone, and a lesser rate where the customer had two or more instruments. In 1894 the Legislature, by chapter 207 of that session, amended the prior act by providing that any person, firm, or corporation might, by special contract, agree with the telephone company for special equipment or service at such rates, terms, and conditions as might be stipulated in the contract. There were then two rates in force--one a flat rate and the other a contract rate. On January 2, 1912, the Commission prescribed the rates of charges for telephone service in the city of Baltimore to be effective on and after May 1, 1912, with an option to flat rate subscribers to continue the flat rate contracts until the 1st of October, 1912. On September 26, 1912, the order of January 2d was further modified by extending the period during which the flat rate subscribers might continue the contracts on that basis from October 1, 1912...