Bay Bridge Ferry Corp. v. Commissioners of Queen Anne's County

• Decision Date: 12 February 1931
• Docket Number: 92.
• Citation: 153 A. 441,160 Md. 398
• Parties: BAY BRIDGE FERRY CORPORATION v. COUNTY COM'RS OF QUEEN ANNE'S COUNTY.
• Court: Maryland Court of Appeals

153 A. 441

160 Md. 398

BAY BRIDGE FERRY CORPORATION v. COUNTY COM'RS OF QUEEN ANNE'S COUNTY.

No. 92.

Court of Appeals of Maryland

February 12, 1931

Appeal from Circuit Court, Queen Anne's County; Wm. H. Adkins and Lewin W. Wickes, Judges.

Mandamus by the Bay Bridge Ferry Corporation against the County Commissioners of Queen Anne's County. Judgment for defendants, and plaintiff appeals.

Affirmed.

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

Richard F. Cleveland and Edwin F. A. Morgan, both of Baltimore (Edwin H. Brown, Jr., of Centerville, and Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellant.

W Mason Shehan, of Easton, and Philip B. Perlman, of Baltimore (J. H. C. Legg, of Centerville, Harrington & Harrington, of Cambridge, and Shehan & Marshall, of Easton, on the brief) for appellees.

PATTISON J.

The appellant, the Bay Bridge Ferry Corporation, applied to the county commissioners of Queen Anne's county for a license to operate a public ferry across the Chesapeake Bay between a point near Sandy Point in Anne Arundel county on the western shore and a point on the eastern shore near Stevensville on Kent Island, in Queen Anne's county. With its petition the appellant filed its bond with two good and sufficient securities, as required by section 3 of article 37 of the Code of Public General Laws of Maryland, under which the application was made. The county commissioners refused to grant the license to the appellant, and on May 23, 1930, it filed its petition in the circuit court for Queen Anne's county asking that a writ of mandamus be issued, directed to the commissioners of Queen Anne's county, commanding them to grant to it a license to operate a ferry across the Chesapeake Bay between the points above mentioned.

In its petition, the appellant alleged that it was a body corporate, duly incorporated and existing under the laws of the state of Maryland, with full charter powers to construct, operate, and maintain a public ferry, as evidenced by its charter, a copy of which was filed, as an exhibit, with its petition. It further alleged that, at the time of filing the petition, it held valid and subsisting options on two tracts of land, one in Anne Arundel county on the western shore and the other on Kent Island near Stevensville in Queen Anne's county on the eastern shore of the bay, for the construction of the necessary piers and terminals for a public ferry which it desired to operate across the bay between the points stated, "for the purpose of transporting, as a common carrier, passengers, vehicles, animals, freight of all kinds and mail." The petition then alleged that it had applied, as stated, to the county commissioners of Queen Anne's county for a license to operate the ferry, and that they refused, and still refuse, to grant to it such license.

The county commissioners of Queen Anne's county filed their answer to the petition of the appellant, in which they denied that the petitioner had applied for and had been refused by them the license to operate the ferry as alleged in the petition; and, in their answer, they in substance averred:

(1) That the writ of mandamus should not issue as prayed, because the appellant has other adequate, sufficient, and convenient remedies at law available to it in the relief sought.

(2) That section 3 of Article 37 of the Code (Section 3, chapter 31 of the Acts of 1782) is now obsolete and that it has no application to the kind and class of ferries for which the appellant was asking a license to operate.

(3) That said act was inconsistent with, and repugnant to, subsisting laws subsequently passed covering the subject-matter of that act, and by which it was repealed. (4) That the "law relating to transportation by Public Service Corporations, the establishing of rates, their proper operation, and all other matters and things concerning Public Service Corporations reposes in the Public Service Commission of Maryland, full, adequate and compete authority in respect thereto, and anything in Article 37 of the Code * * * to the contrary has been repealed."

(5) That the proposed ferry of the appellant between Sandy Point and its terminal on Kent Island would parallel the ferry operated by the Claibourne-Annapolis Ferry Company between Annapolis and the west shore of Kent Island, with the eastern terminals of these ferries only three miles apart. That the traffic does not justify the establishment and operation of these two ferries as located. That, at the time the Claibourne-Annapolis Ferry Company, a corporation operating a ferry between Annapolis and Claibourne, was contemplating the operation of a ferry between Annapolis and Kent Island which necessitated the expenditure of considerable money by the company in the construction of its eastern terminal, it applied to and obtained from the county commissioners of Queen Anne's county a license to operate a ferry between the points named, and by an agreement entered into at that time, by and between the Claibourne-Annapolis Company and the county commissioners of Queen Anne's county, the latter were not to grant without the consent of the ferry company "any other franchise, permit or authorization to any corporation or individual for the purpose of operating a ferry from Kent Island to Anne Arundel County, Maryland, so long as the Claibourne-Annapolis Ferry Company, or its assigns, rendered adequate service from said Kent Island to Anne Arundel County, Maryland." That, should the county commissioners of Queen Anne's county now revoke the agreement so made and grant a license to the appellant company to operate a ferry between the points mentioned, it would be inequitable and unfair to the Claibourne-Annapolis Ferry Company, and contrary to the public interests.

The appellant demurred to the answer which was overruled by the court below, and, upon a judgment being entered thereon, an appeal was taken to this court.

Section 3 of article 37 of the Code (section 3, chapter 31, of the Acts of 1782), under which the application for a license was here made, is as follows:

"Whenever any person shall apply to the county commissioners or mayor of the city of Baltimore for a license to keep a public ferry, and shall offer two good and sufficient securities, the county commissioners or mayor shall grant such license, notwithstanding they or he may have, previous to such application, granted license or licenses to other persons to keep a ferry at the same place."

The above-quoted section of the act of 1782 was enacted as a supplement to the original act of 1781, chapter 22, by which the Justices of the several county courts were "authorized and required, at their respective March Courts, during the continuance of this Act to grant their license to any inhabitant of their county to keep a public ferry, at any place within their county, now used as such, if the said Justices shall think that a public ferry ought there to be kept and established, and from such place to any other county, or from this to any other state." This statute required the renewal of these licenses annually at the March term of the court, although they were authorized to grant such license at any other term, to continue until the March court thereafter, and any person keeping a ferry without such license was subject to the imposition of a fine for every offense.

Section 2 of chapter 31 of the Acts of 1782 authorized any two of the justices, on application to them, to appoint such person to keep a ferry, where one theretofore had been usually kept, until the next court, while section 3 of that act, now section 3 of article 37 of the Code, as amended, the section under which the license was asked for in this case, provided:

"That when and as often as any person shall apply to the justices of any county court for a license to keep a public ferry, and shall offer two good and sufficient securities, the said justices may and

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