Buckler v. Safe Deposit & Trust Co. of Baltimore
| Decision Date | 23 February 1911 |
| Parties | BUCKLER v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al. SAFE DEPOSIT & TRUST CO. OF BALTIMORE v. NORTHERN CENT. RY. CO. et al. |
| Court | Maryland Court of Appeals |
Appeals from Circuit Court of Baltimore City; Alfred S. Niles, Judge.
Suits by Thomas H. Buckler against the Safe Deposit & Trust Company of Baltimore, as trustee, the Northern Central Railway Company and others, and by the Safe Deposit & Trust Company of Baltimore, as trustee, against the Northern Central Railway Company and others. From decrees for defendants in both cases, plaintiffs appeal. Affirmed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, THOMAS, PATTISON, and URNER, JJ.
Arthur W. Machen, Jr., and Wm. A. Glasgow, Jr., for appellant Buckler.
Edwin G. Baetjer, George R. Willis, and Bernard Carter, for Safe Deposit & Trust Company and others.
The single question of law presented by the record on these two appeals, and the one decided by the court below, is this: Is the rent reserved by a lease between the Northern Central Railway Company, a corporation of the states of Pennsylvania and Maryland, and the Pennsylvania Railroad Company, a corporation of the state of Pennsylvania, redeemable under and by virtue of section 88 or section 89 of article 21 of the Code of Public General Laws of Maryland (Code 1904).
There are several subordinate or preliminary questions presented in argument and on the various motions to dismiss the appeals relating to the rules of correct practice and the right of appeal in this character of case, which it may be proper to dispose of, before considering the controlling question, as to whether the rent reserved under the lease is redeemable or not. It appears from an examination of the record that there are three appeals taken by the appellant in No. 66 and one by the appellant in No. 67. Two of these appeals are from the same order, and will be considered together, as they present the adjudication of the court upon the main question of law in its final order of the 30th of December, 1910, that the rent reserved is not redeemable. The two remaining appeals are, first from an order passed on the 30th day of December 1910, as of the 28th day of December, 1910, upon the petition of the plaintiff below, the Safe Deposit & Trust Company of Baltimore, trustee, directing "the question of law" to be raised for the decision of the court; and, second, from an order passed on the 30th day of December, 1910, upon the petition of Thomas H. Buckler, the appellant in No. 66, filed on the 21st of December, 1910, making the petitioner a party to the suit. Subsequently, on the 3d day of January, 1911, a petition was filed in this court on behalf of Thomas H Buckler, an intervening petitioner, and also a motion to dismiss the appeal in No. 67, upon the ground that this court was without jurisdiction to entertain the appeal. The petition, in substance, avers that the case set up by the bill, was made for the purpose of instituting this suit, that there is no real dispute between the plaintiff and the defendants, but that it is an attempt by a mere colorable controversy and a fictitious suit to obtain the opinion of the court upon a question of law. It was further alleged that the interveners have instituted suit in the Circuit Court of the United States for the District of Maryland and in the Circuit Court of the United States for the Eastern District of Pennsylvania, and that this proceeding should be suspended until the decision of the cases in the last-named courts.
On the 3d day of February, 1911, there was also filed a suggestion and petition by Arthur W. Machen and J. Seymour T. Waters, as amici curiæ, presenting the identical questions, and asking the court to dismiss these proceedings and the appeal in No 67. On the 31st of January, 1911, the Safe Deposit & Trust Company of Baltimore City, trustee and the appellant in No 67, filed an answer to the Buckler petition, and which it will be seen also answers the allegations of the Machen and Waters petition, denying that the suit was colorable or fictitious or made solely for the purpose of raising the question presented by the proceedings, and averring, in substance, that the allegations of these petitions are not sustained or justified by the facts. Now assuming, without deciding, that these petitions and the motions thereon are properly before the court, we all agree that they are without merit, and must be overruled for reasons hereinafter stated.
We also hold that the order of the circuit court of Baltimore city passed on the 30th day of December (as of the 28th of December), 1910, on the petition of the plaintiff, directing, first, that a question of law be raised for the decision of the court, and, secondly, that for the purpose of the hearing the intervening petitioners should have the right to be heard as if they were parties to the suit, was a proper order, and the objections urged against it cannot be sustained. By section 196 of article 16 of the Code of Public General Laws of 1904 it is provided, if it appear to the court, either from the pleadings or otherwise, that there is a question of law in any case, which it would be convenient to have decided before any evidence is given, or any question or issue of fact is tried, the court may make an order accordingly, and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court may deem expedient; and all such proceedings as the decisions of such questions of law may render unnecessary may therefore be stayed.
It is clear we think that the court's order of the 30th of December, 1910, answering the question raised under section 196 of article 16 of the Code, above quoted, is an appealable order. Such an order is in the nature of a final decree, and from which a party has a right of appeal. Ridgely v. Cross, 83 Md. 168, 34 A. 469; McEvoy v. Security Fire Ins. Co., 110 Md. 275, 73 A. 157, 22 L. R. A. (N. S.) 964, 132 Am. St. Rep. 428; Dillon v. Insurance Co., 44 Md. 395; Chappell v. Funk, 57 Md. 472; McNiece v. Eliason, 78 Md. 168, 27 A. 940.
This brings us to the substantial question in the case, and the one answered by the court below; that is, whether the rent reserved by the lease filed with the bill of complaint is redeemable under or by virtue of section 88 or section 89 of article 21 of the Code of Public General Laws of Maryland of 1904. We are of opinion, after a careful examination of the lease here in controversy, that it is a lease under the provisions and within the purview of Act 1908, c. 126 authorizing the leasing of railroads and their franchises, and not a lease under sections 88 or 89 of article 21 of the Code. By Act 1908, c. 126, it is provided in part (section 265a) that it shall be lawful for any railroad company incorporated under the laws of this state to lease its railroad and franchise for the operation thereof to any other railroad company incorporated under the laws of this or of any other state of tehe United States whose railroad within or without this state shall either directly or by means of intervening line connect with the railroad so to be leased to said company, and thus forming a continuous route or routes for the transportation of persons and property. The agreement containing the terms and conditions of any proposed lease shall after due approval by the board of directors of each company party thereto be submitted to the stockholders of such one or more of said railroad companies as shall have been incorporated under the laws of this state at either a special meeting thereof, duly called in accordance with cthe charter and bylaws of the companies whereof they are stockholders for the consideration of the same, or at any annual meeting thereof, likewise duly called, and in the call for which it shall be stated that the said agreement will be considered at such meetings; and, if approved by a vote of not less than threefourths of the capital stock of such company or companies outstanding and entitled to vote, the said agreement shall then be duly executed by each of the parties thereto, and, when so executed, a copy...
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