City of Hagerstown v. Baltimore & O.R. Co.

Decision Date07 January 1908
Citation68 A. 490,107 Md. 178
PartiesMAYOR & COUNCIL OF HAGERSTOWN et al. v. BALTIMORE & O. R. CO.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.

Suit by the Baltimore & Ohio Railroad Company against the mayor and council of Hagerstown and another for injunction. From an adverse decree, defendants appeal. Affirmed.

Argued before BRISCOE, BOYD, BURKE, SCHMUCKER, and ROGERS, JJ.

Alex. Neill, Jr., for appellants.

Amis Worth Parker and J. Clarence Lane, for appellee.

BRISCOE J.

The questions for decision in this case arise upon an appeal from a decree of the circuit court for Washington county overruling a demurrer to a bill in equity. The principal question involved turns upon the validity of an ordinance passed by the mayor and council of Hagerstown, on the 2d day of May, 1907. The ordinance is as follows:

"An ordinance entitled an ordinance to provide regulations for the herding, keeping, and confining of domesticated animals within the corporate limits of Hagerstown.
"Section 1. Be it enacted and ordained by the mayor and council of Hagerstown, that it shall be unlawful for any person or persons, corporation or corporations, without a permit therefor first had and obtained from the mayor and council to herd, keep, or confine, temporarily, transiently, habitually or permanently within a distance of two hundred and fifty (250) feet from two or more residences, which shall be situated, within the corporate limits of Hagerstown and upon a public street thereof, any horses, mules, donkeys, cattle, cows, steers, bulls, sheep, hogs, goats or other domesticated animals whatsoever, whether the same are awaiting transportation or otherwise unless such horses, mules, donkeys, cattle, cows, steers, bulls, sheep, hogs, goats or other domesticated animals shall be herded, kept or confined in an inclosed structure or building that shall be covered throughout by a substantial roof and inclosed on all sides by a tight wall containing apertures only for such doors and windows as shall be necessary to secure access and ventilation to such inclosed structure or building, and in no event shall any such doors and windows open or look upon any public street of said Hagerstown."

The validity of this ordinance is attacked upon several grounds: (1) Because it is unfair, partial, and unreasonable. (2) It places unreasonable, arbitrary, and oppressive power in the hands of the mayor and council. (3) It prohibits the appellee company from doing what it is authorized and required to do, both as a common carrier and by statute. (4) It was not enacted, as required, by the charter of Hagerstown.

The facts of the case, briefly stated, are these: On the 25th of May, 1907, a warrant was issued by one of the police justices of Hagerstown, charging upon oath that on the 10th day of May, 1907, the appellee corporation did, without a permit first had and obtained, herd, keep, and confine within a distance of 250 feet from two or more residences situate on Summit avenue, a public street within the corporate limits of Hagerstown, a certain large number of cattle, cows, steers, and hogs, then and there, not being herded, kept, and confined in an inclosed structure or building, as provided by ordinance regulating the herding, keeping, and confining of domesticated animals, and contrary to the provisions of the ordinance passed on the 2d day of May, 1907. The appellee company was arrested under the warrant, and on the 3d of June, 1907, filed in the circuit court for Washington county the bill of complaint contained in the record. A preliminary injunction was thereupon granted by the court below, restraining all further prosecution of the suit, under the ordinance, and from an order of court overruling a demurrer interposed on the part of the defendant this appeal has been taken.

The bill of complaint charges that the plaintiff is a corporation duly incorporated under the laws of the state of Maryland, is engaged in intrastate and interstate commerce, and is a common carrier of passengers, freight, and live stock; that among the lines of railroads operated by it is the Washington County Railroad Company, extending from Hagerstown, Md., to Weverton, Md., where it connects with the main line of the appellee road; that the Washington County Railroad Company is a corporation duly incorporated by an act of the General Assembly of Maryland, passed at the January session, 1864, p 451, c. 334, and that under its charter it is required to furnish accommodation for the transportation of passengers and property offered for transportation, at the place of starting and at the usual stopping places for receiving passengers and freight; that the appellee company is in possession and control of the property of the last-named railroad company, including its terminals and stockyards at Hagerstown, and operates the same for and on account of the Washington County Railroad Company, under the terms and provisions of its charter, and subject to the duties and obligations imposed upon and granted to it by the act of 1864. The bill further charges: That the appellee as a common carrier of live stock, and by the express provisions of the act of 1864 is required to provide proper and suitable stock pens and facilities for loading and unloading and caring for horses, cattle, and other live stock delivered to it in the course of its business, at its regular stations. That in pursuance of law they have erected, entirely on land owned by it, convenient to its station and place of starting in Hagerstown, proper accommodations to receive for shipment live stock offered for transportation, to wit, an inclosure into which the live stock are driven. The inclosure is connected by an elevated footway, raised at such an angle as will offer safe ascent and descent to or from the cars, and over which the live stock are driven for the purpose of loading for transportation, or unloading them, at the point of consignment. That without such inclosure and footway it would be unable to perform the duties required of it by law, as a common carrier, to those offering live stock for transportation, or to those receiving live stock for transportation, or to those receiving live stock consigned to them, and would render itself liable to actions for damages. It further avers that the inclosures are kept clean and free from any accumulation of offensive odors or dirt, and that its use is in accordance with its chartered rights and in compliance...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT