Baltimore & A. R. Co. v. Lichten-Berg

• Citation: 4 A.2d 734
• Decision Date: 08 March 1939
• Docket Number: Nos. 47, 48.,s. 47, 48.
• Parties: BALTIMORE & A. R. CO. v. LICHTEN-BERG et al. (UNITED STATES, Intervener). WELLER et al. v. SAME.
• Court: Court of Appeals of Maryland

4 A.2d 734

BALTIMORE & A. R. CO.

v. LICHTEN-BERG et al. (UNITED STATES, Intervener).

WELLER et al.

v. SAME.

Nos. 47, 48.

Court of Appeals of Maryland.

March 8, 1939.

Appeals from Circuit Court, Anne Arundel County; Linwood L. Clark, Judge.

Suit by Jerome M. Lichtenberg against O. E. Weller and others, constituting the Public Service Commission of Maryland, to enjoin enforcement of an order of the commission stopping operation of certain motortrucks without required permits, wherein the United States of America intervened as a party complainant, and the Baltimore & Annapolis Railroad Company intervened as a defendant. From an adverse decree, the commission and the Baltimore & Annapolis Company appeal. A motion to dismiss the appeals was filed.

Motion to dismiss appeals overruled, and order reversed.

Argued before BOND, C. J., and OFFUTT, PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

Edgar Allan Poe, of Baltimore, for appellant Baltimore & A. R. Co.

J. Purdon Wright, of Baltimore, for appellants Weller and others.

Albert J. Goodman, of Annapolis, for appellees Jerome M. and Evelyn E. Lichtenberg and Vernon Snyder.

Bernard J. Flynn, U. S. Atty., of Baltimore (T. Barton Harrington, Asst. U. S. Atty., of Baltimore, and Enoch E. Ellison, of Washington, D. G, Atty., Department of Justice, on the brief), for the United States.

BOND, Chief Judge.

Complaint was made to the Public Service Commission by the Baltimore and Annapolis Railroad Company, under the Code Supp.1935, article 56, section 255A, that the appellees were engaging in the carriage of day laborers in motor trucks over the highways of the State between Baltimore and Annapolis, under contract with the United States Government, without compliance with the statutes governing contract carriers, and were thus subjecting the railroad to unrestricted and unregulated competition in the territory served by it. Code Supp.1935, art. 56, secs. 251 and 252. The commission, after having heard the parties, stated its findings to be that the owners of the trucks were acting as independent contractors engaged in intrastate transportation without the required permits, and without conformity of the trucks to the commission's safety regulations, and because of these facts the operation complained of was ordered stopped. Competition with the service of the railroad which is necessary and maintained with difficulty, was found, but the order of the commission was not explicitly placed on that ground.

In due course the carriers filed their bill of complaint to prevent enforcement of the order because unreasonable and unlawful. Code Supp.1935, art. 23, section 359. And by leave of court the Federal Government intervened as a party complainant, and the Railroad Company intervened as a respondent. Testimony taken before the commission was supplemented by further testimony in court, and upon all the evidence the chancellor, differing with the commission, decided that the single and exclusive contract shown, for a comparatively short, limited period, was not such a transportation of passengers as was intended to be controlled by the statutescited and that the regulation or stoppage sought would be an unconstitutional obstruction by the State of the performance of an essential function of the Federal Government. Competition with the railroad was found to be only partial, because the men were carried to and from work on projects at various distances from and beyond the railroad stations about Annapolis, and therefore although the parties had stipulated that the case should be completely disposed of, without a remand to the commission, Code art. 23, sec. 405, the chancellor considered himself required to remand it to enable the commission to give separate consideration to those parts of the transportation which were not competitive. On the ground that the remand suspended the proceedings below, rendering them incomplete and not ready for review, a motion to dismiss the appeals has been filed.

The Federal Government has been engaged in constructing buildings at sites near Annapolis on both sides of the Severn River, some near the railroad, some on the north side as far as four miles distant. As the Government required that men otherwise unemployed, and on government relief be used, and there was no adequate supply of such men nearby, the Federal Works Progress Administration has been furnishing them from Baltimore to be carried to the work and back each day, and for the transportation of those men to and fro in motor trucks the contract was made with the appellees, owners of the trucks, under date of July 29, 1938. These owners have otherwise no regular course of business in transportation of passengers; they have only merchandise trucks, and their activity which is complained of has arisen solely under the contract, and it is to end with the work on the projects, in no event later than June 30, 1939.

A standard form of government contract was used. The truck owners were required by it to furnish the necessary number of vehicles to carry 40 men per vehicle for $12 a day for each vehicle, or 60 men for $18, to make the round trip each working day, from a specified gathering point, or pick-up point, in Baltimore, to the sites of the work and return. Hours of movement were designated, but were varied in practice for convenience of the men and the work. When weather conditions interfered with the work the menwould not be carried. It was expressly provided that the contractors should comply with the law in equipping the vehicles, obtaining all required licenses and permits, and should carry liability insurance. But there has been no attempt by the appellees to qualify as carriers of passengers by obtaining the licenses specified in the Code Supp.1935, article 56, sections 251, 252 and 255. They have only licenses for commercial hiring. As many as 1500 men a day have been carried under the contract, in trucks such as are commonly used for carrying freight or merchandise, with closed front and sides, and open back, with the men seated on wooden benches.

After the passage of the commission's order on the complaint, bids for the transportation of the men were invited from the Railroad Company and many trucking and bus companies, but only one bid, and that for the hauling of 750 men, was received. The Government therefore returned to its existing contract, and the equity proceeding to preserve it.

Before the contract was made, the Railroad Company had offered to carry the workmen between Baltimore and its Annapolis stations at the rate of 45 cents for each passenger. Carriage by that means would, of course, have necessitated employment of trucks to distribute and gather the men at the Annapolis end of the journey. A limit placed by the Government agencies upon the Navy Department's expenditures for the transportation of laborers would have prevented acceptance of that rate, but the fact seems to furnish no answer to the questions to be solved, for supplying too little money for employing carriers qualified under the law would not, as we conceive it, authorize bringing into operation on the highways, by the contract, a system of conveyance outside the law. The fact leaves unaffected the question whether this system is within or without the law; and the question is to be answered in the same way whether the funds supplied are inadequate or ample.

That the appellees have been acting as independent private contract carriers seems to the court plain. Besides owning the trucks, and equipping and insuring them as owners, they have had their own employees driving them. The facts that the operation is for the benefit and convenience of the Government exclusively, and that the Government has fixed the times of movement and the extent of the journey, do not alter the fact of independence of the contractors. Bentley, Shriver & Co. v. Edwards, 100 Md. 652, 60 A. 283; Hull v. Philadelphia & R. R. Co., 132 Md. 540, 104 A. 274; Hilton Quarries v. Hall, 161 Md. 518, 158 A. 19. And a foremost question is whether such contractors come at all within the description of those to be affected by sections 252 and 251 of article 56 of the Co...