Pennsylvania R. Co. v. Baltimore & O.R. Co.

• Decision Date: 19 June 1883
• Parties: THE PENNSYLVANIA RAILROAD COMPANY IN MARYLAND v. THE BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: Maryland Court of Appeals

60 Md. 263

THE PENNSYLVANIA RAILROAD COMPANY IN MARYLAND v. THE BALTIMORE AND OHIO RAILROAD COMPANY.

Court of Appeals of Maryland

June 19, 1883

Appeal from the Circuit Court for Garrett County.

The case is stated in the opinion of the court.

The cause was argued before Miller, Yellott, Robinson, Irving and Ritchie, JJ.

Ferdinand Williams and William Walsh, for the appellant.

Hugh L. Bond, Jr., and John K. Cowen, for the appellee.

Miller J., delivered the opinion of the court.

By the Act of 1874, ch. 446, it was enacted "That all railroads within the State of Maryland, which cross or connect with any other road, or which may hereafter be so constructed or built, shall be, and are hereby required to permit the road so crossing or connecting to use their track or roadway for the passage of the locomotives, cars, and tonnage, at a rate of tolls for passage of trains and tonnage not exceeding the rate per ton per mile, or proportionate part of a mile so used, as is charged for through freight per ton per mile provided, however, that the right of any road to use the track of any connecting road under this Act shall not be extended to a greater distance than five miles;" and "if the company of any railroad in this State shall fail or refuse to comply with the provisions of this Act, the party aggrieved shall have the right to recover, upon suit in any court of this State that has jurisdiction, a sum not less than five hundred or more than one thousand dollars for each day of refusal or neglect."

The Pennsylvania Railroad Company in Maryland, which was incorporated under the free railroad law of 1876, with power to build and operate a railroad from Ellerslie in Allegany County to and within the City of Cumberland, sued the Baltimore & Ohio Railroad Company to recover the penalty prescribed by this Act. The declaration alleges, that the plaintiff's road crosses at grade the tracks of the defendant's road at a point near the defendant's viaduct over Will's Creek, in Cumberland, that under the above Act it was entitled to use the tracks and roadways of the defendant on the terms prescribed by the Act, from the point of crossing to the basin wharf of the Chesapeake & Ohio Canal Company, a distance of less than five miles, and that defendant, for the period of one hundred and fifty-three days, refused to permit such use by the plaintiff whereby, and by force of said Act of Assembly an action hath accrued to the plaintiff, to have and demand of the defendant not less than $500, for each day during which the defendant so refused to permit the plaintiff to use its track or roadway.

To this declaration the defendant pleaded seven pleas, setting up various defenses to the action. The plaintiff replied to some of these pleas and demurred to others, and the defendant demurred to the replications. The court sustained the demurrer to the replications, and overruled it as to the pleas. These pleadings need not be stated at length, for in the view we take of it, the determination of two questions will dispose of the case.

1st One of the defenses relied on and pleaded is that the defendant company is not subject to the operation of this Act of 1874, and in our opinion this defense must be sustained. This company was incorporated by the Act of 1826, ch. 123. There was no provision in this Act nor in the Constitution of the State then in force, reserving to the Legislature the right to repeal or amend this charter, and it was, in all its essential features, a contract between the State and the corporators within the protection of the Constitution of the United States, and could not therefore be repealed, or in any manner impaired or affected by any subsequent legislation to which the company did not give its assent or accept. The 18th section of this charter contains, among others, the provisions that "it shall not be lawful for any other company, or any person or persons whatsoever to travel upon or use any of the roads of said company, or to transport persons, merchandise, produce or property of any description whatsoever, along said roads or any of them without the license or permission of the president and directors of said company; and that said road or roads with all their works, improvements and profits, and all the machinery of transportation used on said roads are hereby vested in the said company incorporated by this Act and their successors forever; and the shares of the capital stock of the said company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burthen by the States assenting to this law." The last clause here quoted containing the exemption from taxation has been construed by this court as a contract within the protection of the Constitution of the United States, and that it embraces all the property and franchises of the company, including all lateral roads built under the provisions of the original charter. State v. B. & O. R. R. Co. 48 Md. 50. But far more important and far more essential to its existence are the previous clauses which vest in...