City of Baltimore v. Baltimore, C. & E.M. Pass. R. Co.

• Decision Date: 19 June 1896
• Citation: 35 A. 17,84 Md. 1
• Parties: MAYOR, ETC., OF BALTIMORE v. BALTIMORE, C. & E. M. PASS. R. CO.
• Court: Maryland Court of Appeals

35 A. 17

84 Md. 1

MAYOR, ETC., OF BALTIMORE v. BALTIMORE, C. & E. M. PASS. R. CO.

Court of Appeals of Maryland

June 19, 1896

Appeal from Baltimore city court.

Action by the mayor and city council of Baltimore against the Baltimore, Catonsville & Ellicott's Mills Passenger Railroad Company to recover a tax.Judgment for defendant and plaintiff appeals.Affirmed.

Argued before BRYAN, RUSSUM, PAGE, FOWLER, McSHERRY, and BRISCOE JJ.

Thomas I. Elliott, for appellants.

John K Cowen, E. J. D. Cross, Hugh L. Bond, I. N. Steele, J. E Semmes, and Francis K. Carey, for appellees.

McSHERRY C.J.

The question involved in this case is clearly stated in the following terms by the learned judge whose rulings are now before us for review: "The defendant company operates a local passenger railway, running for a part of its length (about two miles) through the annexed district, or within the precent territorial limits of the city as extended, and for the rest of its length (about three and one-half miles) westwardly beyond those limits, and for the whole of its length on its own right of way, acquired and maintained at its own expense.This right of way it has purchased from the turnpike company upon whose roadbed its tracks are laid, under legislative authority.No street franchise or concession of any kind whatever has been conferred upon it by the city.Its tracks are not laid upon, nor does it use, nor has it received any municipal privilege upon, any city street or streets acquired from the city by grant, dedication, or condemnation, or in any other way, and maintained at public expense.The question is whether such an enterprise properly answers to the description of a 'street railway,' within the intendment of the laws imposing the park tax of 9 per cent. upon gross receipts from all street-railway lines within the present city limits."

The appellee company is the successor of the Baltimore Catonsville & Ellicott's Mills Passenger Railway Company.This latter company was incorporated by the general assembly of Maryland under an act passed at the January session of 1860(chapter 34).By authority of this act, the corporation thereby created constructed a single-track horse railway upon the bed of a turnpike road owned by the president, managers, and company of the Baltimore & Fredericktown Turnpike Road, after first, by agreement, procuring, for a money consideration, the right of way from the turnpike company.The railway thus constructed was located wholly in Baltimore county, with one terminus just at the city limits.Some 30 years afterwards, this railway company became embarrassed financially, and was sold under foreclosure proceedings; and the present appellee was the purchaser, and assumed the same name, with the single exception that the word "Railroad" was substituted for "Railway."The reorganized company (the appellee), having determined to change the motive power for the propulsion of its cars from horses to electricity, was empowered, under Act 1894, c. 162, to contract with the turnpike company for the amount of compensation to be paid to the latter for the use of its roadbed by this different and more rapid method of transit.Conformably to this act, the right to use the turnpike roadbed for an electric railroad was acquired by agreement, for the sum of $28,000 in money, and the further consideration of the performance of certain stipulations, which need not be stated or considered, as they are not material in respect to the pending controversy.By chapter 98 of the Acts of 1888, the limits of Baltimore were extended, and part of the railway now owned by the appellee, and theretofore built by its predecessor, was brought within the enlarged outlines of the city.When permission was first given by the mayor and city council, in 1858, by ordinance, to certain individuals, to construct a passenger railway upon some of the city streets, and to run thereon cars drawn by horses, a tax of one-fifth portion of the whole passenger re ceipts was exacted; and when, in 1862, these same individuals secured from the general assembly an act incorporating the Baltimore City Passenger Railway Company, the exaction of one-fifth of the gross receipts was embodied in the fourth section of the charter.As succeeding street-railway companies were formed, a like tax was imposed upon them by the city.In 1874, by ordinance, the rate of this tax was reduced to 12 per cent.; and in 1882the legislature, by chapter 229, provided "that each of the several...