United Rys. & Electric Co. of Baltimore v. West

• Decision Date: 20 March 1929
• Docket Number: 71.
• Citation: 145 A. 340,157 Md. 70
• Parties: UNITED RYS. & ELECTRIC CO. OF BALTIMORE v. WEST ET AL., PUBLIC SERVICE COMMISSION OF MARYLAND.
• Court: Maryland Court of Appeals

145 A. 340

157 Md. 70

UNITED RYS. & ELECTRIC CO. OF BALTIMORE v. WEST ET AL., PUBLIC SERVICE COMMISSION OF MARYLAND.

No. 71.

Court of Appeals of Maryland

March 20, 1929

Appeal from Circuit Court No. 2 of Baltimore City; Joseph N. Ulman Judge.

Action by the United Railways & Electric Company of Baltimore against Harold E. West and others, constituting the Public Service Commission of Maryland. Decree for defendants, and plaintiff appeals. Affirmed.

Parke J., dissenting.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Joseph C. France, Charles McHenry Howard, Charles Markell, and Henry H. Waters, all of Baltimore, for appellant.

Raymond S. Williams and Thomas J. Tingley, both of Baltimore, for appellees.

OFFUTT J.

The most important question presented by this appeal is whether the Public Service Commission of Maryland in limiting the United Railways & Electric Company of Baltimore to a rate schedule which permits it to earn by reasonably efficient management a return of 6.26 per cent. on the total value of its property deprives it of its property without due process of law.

While that question was considered and decided adversely to appellant's contention in West v. United Railways & Electric Co., 155 Md. 572, 142 A. 870, the decree in that case was reversed, and the case remanded that the allowance made by the commission for the annual depreciation of the company's property might be reconsidered and determined in accordance with the views expressed in the opinion.

Subsequent to the remand proceedings were had which resulted in increasing the allowance for depreciation by $755,116, and following that increase the commission revised the schedule of rates fixed in its order involved in the former appeal and permitted appellant to charge a base rate of 8 3/4 cents when tokens were sold, or 10 cents cash, for the transportation of passengers over 12 years of age, as compared with 7 1/2 cents when tokens were sold or 9 cents cash allowed by its previous order. Thereupon the appellant filed a supplemental bill in which, omitting so much as is merely argumentative or historical, it alleges:

"As the Commission thus found, all the evidence before the Commission showed, and the fact is, said increase in rate permitted by Order No. 13430 is not more than is required to increase the Company's annual return by $755,116, viz. the amount of the increase in annual allowance for depreciation, and the increased rates permitted by Order No. 12639, as so amended by Order No. 13420, will yield the Company an annual return not more in any event than $4,691,606, the amount which the Commission in its opinion filed February 10, 1928, found could reasonably be expected from the rates fixed by Order No. 12639. * * * The annual return that can be expected by the Company from said rates (as increased by Order No. 13420) is not more than $4,691,606, and not more than 6.26 per cent. on the fair value of the Company's property, and an annual return of $4,691,606 or of 6.26 per cent. would be substantially less than a fair return such as the Company is entitled under the Constitution of the United States, and also under the Maryland Bill of Rights and the Public Service Commission Law (Code Pub. Gen. Laws 1924, art. 23, §§ 346-418), to be permitted to earn. Said Order No. 12639, as so amended by Order No. 13420, of the Commission, therefore, and any prior orders of the Commission limiting the Company to the same or lower rates, are contrary to the Fourteenth Amendment of the Constitution of the United States and to the Maryland Bill of Rights and the Public Service Commission Law and are null and void, and, so long as they are enforced, deprive the Company of its property without due process of law, and said orders and the rates, regulations, practices, acts and services fixed thereby are unlawful and unreasonable.

In each and all of the following respects Order No. 12639, (as amended by Order No. 13420), of the Commission, and the Commission's opinion made a part of Order No. 12639, (as modified by the opinion made a part of Order No. 13420), and any prior orders of the Commission limiting the Company to the same or lower rates, and the rates, regulations, practices, acts and services fixed by said orders, or any of them, are unlawful, unreasonable, arbitrary, unsupported by any substantial evidence, contrary to the facts established by substantial evidence, confiscatory and contrary to the Fourteenth Amendment of the Constitution of the United States and to the Maryland Bill of Rights and the Public Service Commission Law and null and void. * * *

The Commission by said order burdened the Company with a substantial loss of revenue by requiring it to abolish the second fare upon its Halethorpe line, which loss, without any compensating offset, and without any lawful reason for abolition of said fare, further diminishes the inadequate return upon the Company's property. * * *

That the action of the Commission in so refusing to...