West v. Western Maryland Dairy

• Decision Date: 18 May 1926
• Docket Number: 58.
• Citation: 135 A. 136,150 Md. 641
• Parties: WEST ET AL. v. WESTERN MARYLAND DAIRY.
• Court: Maryland Court of Appeals

135 A. 136

150 Md. 641

WEST ET AL. v. WESTERN MARYLAND DAIRY.

No. 58.

Court of Appeals of Maryland

May 18, 1926

Petition for Re-argument Overruled November 18, 1926.

Appeal from Circuit Court of Baltimore City; Joseph N. Ulman, Judge

Suit by the Western Maryland Dairy against Harold E. West and others. Decree for plaintiff, and defendants appeal. Reversed, and bill dismissed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and WALSH, JJ.

Thomas H. Robinson, Atty. Gen., and Herbert Levy, Asst. Atty. Gen (Robert H. Archer, Jr., Asst. Atty. Gen., on the brief), for appellants.

George W. Lindsay and E. Allan Sauerwein, Jr., both of Baltimore (Sauerwein, Lindsay & Donoho, of Baltimore, on the brief) for appellee.

John H Hessey, of Baltimore, solicitor for Maryland Agricultural Society, Maryland Farm Bureau Federation, filed a brief.

PATTISON J.

A corporation known as "the City Dairy Company" was incorporated on the 31st day of March, 1914, under the laws of the state of Maryland, with its principal office located in the city of Baltimore. On the 13th day of June, 1921, the name of the corporation was changed, by an amendment of its certificate, to the "Western Maryland Dairy, Incorporated." The company, pursuant to the authority conferred upon it by its charter, entered actively in the business of buying, pasteurizing, bottling, distributing, and dealing in milk and its products. In the conduct of its business it purchased its milk supply in Maryland and nearby states. Some of it was transported by rail and delivered to the company at the railway terminals in the city of Baltimore. Some was transported by motor vehicles, operated by individuals and companies on regular scheduled routes and delivered to the company at its plant in that city, while some was carried in the vehicles of the producers and delivered to the company at its plant.

These methods or means of transportation and delivery of the milk continued until the early part of the year 1925, when the Western Maryland Dairy determined, where it was practicable, to transport the milk by means of trucks owned and operated by it. To this end it bought out a number of individuals and companies, who were, at the time, transporting to it milk upon regular scheduled routes, and thereafter it carried the milk on those routes to its plant in its own trucks. The individuals and companies from whom the Western Maryland Dairy had bought said routes were, at the time of the sales thereof, operating their trucks thereon under the provisions of the "Public Freight Motor Vehicle Law," sections 258-262, art. 56, of the Code of Public General Laws, which make it "the duty of each owner of a motor vehicle to be used in the public transportation of merchandise or freight, operating over state, state-aid, improved county roads, and streets and roads of incorporated towns and cities in the state of Maryland, to secure a permit from the Public Service Commission of Maryland to operate over said roads and streets," and to obtain the license therein charged before operating said motor vehicles over said roads and highways. When the routes were so purchased and taken over by the Western Maryland Dairy and it had begun to operate its trucks thereon as said individuals and companies on said routes had done, the commissioner of motor vehicles, upon the advice of the Attorney General of this state, took the position that it, too, was subject to the provision of said act, and demand was made by him upon the company to comply with its provisions. This the company refused to do upon the ground, as it claimed, that it was merely transporting its own milk, in its own trucks, to its own dairy in Baltimore, and was not subject to the provisions of the act.

On November 5, 1925, the Western Maryland Dairy, Incorporated, filed its bill in the circuit court of Baltimore City against the Public Service Commission of Maryland, the State Roads Commission of Maryland, and the commissioner of motor vehicles of the state of Maryland, asking that an injunction be issued enjoining and restraining them, or any of them, from causing and procuring the arrest of the Western Maryland Dairy, Incorporated, or any officer or employee thereof for failure on the part of the Western Maryland Dairy to obtain a permit from the Public Service Commission of Maryland for the operation of any of its freight motor vehicles engaged in the transportation of milk. An answer was filed thereto, evidence was taken, and a decree passed granting the injunction as prayed. It is from that decree that the appeal in this case is taken.

The record discloses that the milk consumed by the Western Maryland Dairy amounts to about 10,000,000 gallons per annum and is one-half of all the milk used in the city of Baltimore. The farmers who produce the milk are members of an association known as the Maryland State Dairymen Association, and, with the exception of the milk consumed at their homes, the whole of their production is consigned to said association for sale, and is sold by it to dealers in milk, including the Western Maryland Dairy. In the sale of the milk, the association determines the price, as well as the terms upon which it is sold. When the milk is transported by rail, the price so determined upon is the amount to be received therefor at the roads terminal station in the city of...