Weller v. Maryland Bay Co.

• Citation: 3 A.2d 736,176 Md. 59
• Decision Date: 18 January 1939
• Docket Number: 79.
• Parties: WELLER et al. v. MARYLAND BAY CO.
• Court: Court of Appeals of Maryland

3 A.2d 736

176 Md. 59

WELLER et al. v. MARYLAND BAY CO.

No. 79.

Court of Appeals of Maryland

January 18, 1939

Appeal from Circuit Court, Anne Arundel County; Linwood L. Clark Judge.

Suit by the Maryland Bay Company, a Maryland corporation, against O E. Weller and others, constituting the Public Service Commission of Maryland, to secure a review and reversal of an order of the commission which rejected the application of the plaintiff for permission to operate a public ferry for hire between certain points on opposite shores of Chesapeake Bay. From an adverse order, defendants appeal.

Reversed and bill dismissed.

J Purdon Wright, of Baltimore, for appellants.

William A. Roberts, of Washington, D. C. (Roberts & McInnis, of Washington, D. C., and Samuel H. Feldstein, of Baltimore, on the brief), for appellee.

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

PARKE Judge.

The Maryland Bay Company, a body corporate of the State of Maryland, is the plaintiff and the Public Service Commission of Maryland is the defendant in a bill of complaint filed on June 2, 1938, on the equity side of the Circuit Court for Anne Arundel County. The defendant demurred to the bill of complaint and answered at the same time, and, after hearing, the Chancellor over-ruled the demurrer, and set the cause down for hearing on bill and answer pursuant to the provisions of sec. 405 of Art. 23 of the Code. From this order the pending appeal was taken.

The institution of this suit in a court of equity was for the purpose of securing a review and reversal of an order of the Public Service Commission of Maryland which rejected the application of the plaintiff for permission to operate a public ferry for hire between certain points on the opposite shores of the Chesapeake Bay. The Commission's refusal was based upon the conclusion that it was prohibited by law from permitting the operation of a ferry within the area desired by the applicant. The soundness of this conclusion is the principal question.

The bill of complaint avers the plaintiff's corporate existence and its powers which embrace the transportation of passengers and freight upon Chesapeake Bay and adjacent waters; the ownership, lease and control of ferries and other vessels and their operation; the construction, acquisition and operation of docks, piers, channels and appurtenant facilities; the ownership, purchase, sale and lease of lands and their improvements, and, generally, to do the things and to acquire the accessories and equipment for its corporate purposes. It sets out that the defendant has the jurisdiction and power pursuant to Section 379 of Article 23 of the Code Pub.Gen.Laws Supp.1935 to grant the permission and approval for a public utility to exercise any franchise or right under any provision of law, which has not been theretofore exercised whenever it shall, after due hearing, determine that such exercise is necessary or convenient for the public service.

The plaintiff desired to obtain the authorization specified for the exercise of its corporate powers and filed with the defendant on March 24, 1938, an application for an order to permit, authorize and empower the plaintiff to operate, across the Chesapeake Bay, a ferry service between Sandy Point, in Anne Arundel County, to a point near Stevensville, on Kent Island, in Queen Anne's County, for the transportation of passengers and freight in intra-state commerce; and the plaintiff prayed that it be afforded a hearing on the matter, and be given such further relief and authority as might be necessary to accomplish the object sought. The bill of complaint further alleges that the application is new and original, and a copy of this application is filed as part of the bill.

The application was dismissed on May 11, 1938, without its being set down for a hearing on the merits, on the ground that the defendant was without jurisdiction to authorize the establishment of a ferry across the Chesapeake Bay from Sandy Point to Kent Island, or in the immediate vicinity of these places, so long as an Act of the General Assembly of Maryland passed at its January Session of 1935, and known as the Bay Bridge Act remains in effect or the restriction upon the establishment of a ferry or bridge within twenty miles of the site of a certain proposed Chesapeake Bay Bridge continues. A copy of this order of the defendant is filed and incorporated in the bill by reference.

The bill of complaint recites that the plaintiff had, on October 28, 1936, filed with the defendant an application for a permit to exercise its franchise, and that this application was dismissed on January 27, 1937. On March 26, 1937, the plaintiff made application for a re-consideration of this action, and this request was denied on April 28, 1937; and, again, on May 25, 1937, an application for a re-consideration was made and, likewise, denied. The complainant shows that the refusal in every instance was based on the same ground that the defendant was without jurisdiction. The plaintiff next filed in the Superior Court of Baltimore City on August 7, 1937, a petition for a writ of mandamus to command the defendant to grant a public hearing on its application for a certificate of public convenience and necessity for the operation of a ferry service between the points named. A demurrer to this petition was sustained on the theory that the remedy of the plaintiff had been a statutory appeal from the action of the defendant.

The plaintiff next here states that Order No. 33058 of the Commission, which as heretofore stated was passed on May 11, 1938, is final; and that the bill of complaint now under consideration is the only remedy at law or in equity which is available to it, and is an appeal from the order dismissing the plaintiff's application, which was filed with the defendant on March 24, 1938; and which embraces facts that were not available at the several times of the prior applications. These alleged changes and different circumstances are said to be:

(1) The abandonment of the Chesapeake Bay Bridge project contemplated in the Chesapeake Bay Authority Act (Acts of 1935, Chapter 330, p. 743); Article 89B sections 85 to 104 inclusive of Public General Laws Supp.1935; and

(2) The passage of Chapter 356 of the Acts of 1937, and the assumption of jurisdiction and duties by the Board created by this Act; and (3) The requirements of residents and merchants of the State which render necessary an adequate ferry service in the vicinity of the route proposed.

The plaintiff avers that the defendant's Order No. 33058 is unlawful and unreasonable and null and void; and is in violation of the Constitution of Maryland; and that Chapter 356 of the Acts of 1937 materially modified, amended and superseded the Chesapeake Bay Authority Act (Acts of 1935, Chapter 330) with respect to the construction and operation of ferries. Furthermore, it is declared that under the provisions of Sections 404, 405 and 407 of the Public Service Commission Law of Maryland (Code, Art. 23) the Circuit Court for Anne Arundel County has jurisdiction to set aside, vacate and amend Order No. 33058 of the defendant.

The plaintiff alleges that it has established its right to a certificate or finding of public necessity and convenience as required by Article 23, Section 379 of the Public Service Commission Law; and that it will show that it has a well conceived plan to afford service over the proposed route, which is the shortest on Chesapeake Bay without interference with small boat traffic; that it is financially able to conduct the enterprise; that it controls practicable and adequate terminals at Stevensville and Sandy Point; and that it is prepared to proceed promptly with the construction necessary to establish service, which is now inadequate; and, further, that the plaintiff has expended large sums of money and incurred large obligations in connection with the proposed ferry service; and that the refusal of the defendant denies to the plaintiff the right to exercise its franchise and deprives it of its property without due process of law.

On allegations thus stated in summary the relief prayed, in addition to that of general relief, is:

(1) That said Order No. 33058 of May 11, 1938, be declared null and void.

(2) That the Bay Bridge Authority Act (Acts of 1935, Ch. 330) be declared null and void in so far as it is a bar to the action of the defendant in approving or denying on its merits the application of the plaintiff.

(3) That the application of the petitioner for a certificate of convenience and necessity be approved; and that the Order No. 33058 be so amended.

The proposed ferry service is admittedly within the distance of twenty miles from the site of the bridge contemplated by the Acts of 1935, Ch. 330.

The demurrer and answer filed by the defendant raises, first, the sufficiency of the averments to justify equitable relief; and, secondly, issues of fact on all the material allegations upon which the relief sought is founded. Since the demurrer was heard and over-ruled, and the appeal comes from that decision, the facts alleged must be taken to be true for the purposes of a review of the action of the Chancellor on the demurrer. The problem presented by the demurrer will depend for its solution on the meaning of the statutes which relate to the construction of bridges and the operation of ferries for the use of the public in traversing the Chesapeake Bay.

Under the provisions of Chapter 330 of the Acts of 1935, nineteen new sections are added to Article 89B of the Code of Public General Laws of Maryland, title 'State Roads', as enacted by Chapter 539 of the Acts of 1931, and its amendments. These new sections followed Section 74 of the Article...