Baldwin v. West

• Decision Date: 14 January 1931
• Docket Number: 63.
• Citation: 152 A. 907,160 Md. 202
• Parties: BALDWIN ET AL. v. WEST ET AL.
• Court: Maryland Court of Appeals

152 A. 907

160 Md. 202

BALDWIN ET AL. v. WEST ET AL.

No. 63.

Court of Appeals of Maryland

January 14, 1931

Appeal from Circuit Court No. 2 of Baltimore City; George A. Solter Judge.

Bill by Charles G. Baldwin and others against Harold E. West Chairman, and others, Commissioners, comprising the Public Service Commission of Maryland, and another. From a decree sustaining demurrers and dismissing the bills, complainants appeal.

Affirmed.

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

Charles G. Baldwin and Murray MacNabb, both of Baltimore, for appellants.

William Cabell Bruce and R. Dorsey Watkins, both of Baltimore (John H. Lewin and

Piper Carey & Hall, all of Baltimore, and R. A. Van Orsdel and T. Baxter Milne, both of Washington, D. C., on the briefs), for appellees.

URNER J.

The bill of complaint in this case was filed, under section 404 of article 23 of the Code, for the purpose of obtaining a judicial review of an order of the Public Service Commission passed in a proceeding instituted by persons seeking redress for irregularities, prejudicial to their interests, in service due them from the Chesapeake & Potomac Telephone Company. Demurrers to the bill were filed by the commission, and by the telephone company, which was joined as a defendant. The appeal is from a decree sustaining the demurrers and dismissing the bill.

The material portions of the Code provision referred to are as follows:

"Any corporation subject to this sub-title, or any of the provisions of this sub-title, and any person in interest being dissatisfied with any order of the commission, fixing any rate or rates, tolls, charges, schedules, joint rate or rates, or any order fixing any regulations, practices, acts or service, may commence any action in the circuit court for any county, or before any judge of the supreme bench of Baltimore city, in any court of Baltimore city of appropriate jurisdiction which may be adopted for the purpose, against the commission as defendant to vacate and set aside any such order on the ground that the rate or rates, tolls, charges, schedules, joint rate or rates, fixed in such order is unlawful, or that any such regulation, practice, act or service fixed in such order is unreasonable, in which action a copy of the complaint shall be served with the summons.

The answer of the commission to the complaint shall be served and filed within twenty days after service of the complaint, whereupon said action shall be at issue and stand ready for trial upon fifteen days' notice to either party.

All such actions shall have precedence over any civil cause of a different nature pending in such court, and the said courts shall always be deemed open for the trial thereof, and the same shall be tried and determined as other civil actions."

The first question presented by the record is whether defense by demurrer is permissible under the terms of the statute quoted. It is contended that an answer is the only available mode of interposing a defense in such a proceeding.

The statute does not in terms limit the commission to the use of an answer for the statement of its grounds of defense to a suit by which its order is challeged. The requirement that the answer shall be filed within twenty days after service of the bill of complaint is a procedural regulation in the interest of an early trial. The mere omission of the statute to mention demurrers should not be construed as an intention to exclude that customary and convenient method of testing the legal or equitable sufficiency of the grounds upon which the suit is based. This view is supported by the concluding provision of section 404 that such suits "shall be tried and determined as other civil actions," and by the declaration in section 409 of the same article that in proceedings like the present, "all processes shall be served and the practice and rules of evidence shall be the same as in civil actions, except as otherwise herein provided." There is no statutory exception which affects the right of demurrer here in dispute. It has been exercised without question in similar proceedings which have reached this court on appeal. Gregg v. Pub. Serv. Comm., 121 Md. 1, 27, 87 A. 1111; Yeatman v. Towers et al., Pub. Serv. Comm., 126 Md. 513, 515, 95 A. 158; Public Serv. Comm. v. Kensington R. Co., 131 Md. 649, 651, 102 A. 1011; Chenoweth v. Pub. Serv. Comm., 143 Md. 622, 623, 123 A. 77. The contention that the defendants could not demur to the bill must be overruled.

It is alleged in the bill of complaint that the plaintiffs filed a joint petition with the Public Service Commission describing certain errors in the fall issue of 1927 and the summer issue of 1928 of the telephone directory of the Chesapeake & Potomac Telephone Company, by which the plaintiffs had respectively been inconvenienced and injured, and praying that the commission require the telephone company to adopt a number of regulations proposed by the petition as tending to prevent such mistakes and their consequences in the future, and to avoid improper charges and discriminations. The rules thus submitted were as follows:

"That the Telephone Company will acknowledge in writing all written and verbal communications respecting changes in the telephone directory within forty-eight hours after receipt of the same, setting forth what changes they propose to make in compliance with the said notification, and will also furnish a copy of said letter to the subscriber if he is not the party requesting the change, and will keep a copy of said letter on file in the office of the Telephone Company for a period of one year."

"That every person, firm, or corporation whose name appears in the telephone directory who desires a change may

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