Baltimore & Annapolis Railroad v. Lichtenberg

Bond, C. J., delivered the opinion of the Court. Complaint was made to the Public Service Commission by the Baltimore & Annapolis Railroad Company, under the Code (Supp. 1935), art. 56, sec. 255A, that the appellees were engaging in the carriage of day laborers in motor trucks over the highways of the state between Baltimore and Annapolis, under contract with the United States Government, without compliance with the statutes governing contract carriers, and were thus subjecting the railroad to unrestricted and unregulated competiton in the territory served by it. Code (Supp. 1935), art. 56, secs. 251 and 252. The commission, after having heard the parties, stated its findings to be that the owners of the trucks were acting as independent contractors engaged in intrastate transportation without the required permits, and without conformity of the trucks to the commission’s safety regulations, and because of these facts the operation complained of was ordered stopped.

Competition with the service of the railroad, which is necessary, and maintained with difficulty, was found, but the order of the commission was not explicitly placed on that ground. In due course the carriers filed their bill of complaint to prevent enforcement of the order because unreasonable and unlawful. Code (Supp. 1935), art. 23, sec. 359. And ³⁸⁷ by leave of court the Federal Government intervened as a party complainant, and the railroad company intervened as a respondent.

Testimony taken before the commission was supplemented by further testimony in court, and upon all the evidence the chancellor, differing with the commission, decided that the single and exclusive contract shown, for a comparatively short, limited, period, was not such a transportation of passengers as was intended to be controlled by the statutes cited, and that the regulation or stoppage sought would be an unconstitutional obstruction by the State of the performance of an essential function of the Federal Government. Competition with the railroad was found to be only partial, because the men were carried to and from work on projects at various distances from and beyond the railroad stations about Annapolis, and therefore, although the parties had stipulated that the case should be completely disposed of, without a remand to the commission (Code, art. 23, sec. 405), the chancellor considered himself required to remand it to enable the commission to give separate consideration to those parts of the transportation which were not competitive. On the ground that the remand suspended the proceedings below, rendering them incomplete and not ready for review, a motion to dismiss the appeals has been filed. The Federal Government has been engaged in constructing buildings at sites near Annapolis on both sides of the Severn River, some near the railroad, some on the north side as far as four miles distant.

As the Government required that men otherwise unemployed, and on government relief, be used, and there was no adequate supply of such men nearby, the Federal Works Progress Administration has been furnishing them from Baltimore to be carried to the work and back each day, and for the transportation of those men to and fro in motor trucks the contract was made with the appellees, owners of the trucks, under date of July 29th, 1938. These owners have otherwise no regular course of business in transportation of passengers; they have only merchan ³⁸⁸ dise trucks, and their activity which is complained of has arisen solely under the contract, and it is to end with the work on the projects, in no event later than June 30th, 1939. A standard form of government contract was used. The truck owners were required by it to furnish the necessary number of vehicles to carry forty men per vehicle for twelve dollars a day for each vehicle, or sixty men for eighteen dollars, to make the round trip each working day, from a specified gathering point, or pick-up point, in Baltimore, to the sites of the work and return.

Hours of movement were designated, but were varied in practice for convenience of the men and the work. When weather conditions interfered with the work, the men would not be carried. It was expressly provided that the contractors should comply with the law in equipping the vehicles, obtaining all required licenses and permits, and should carry liability insurance. But there has been .no attempt by the appellees to qualify as carriers of passengers by obtaining the licenses specified in the Code (Supp. 1935), art. 56, secs. 251, 252, and 255.

They have only licenses for commercial hiring. As many as 1500 men a day have been carried under the contract, in trucks such as are commonly used for carrying freight or merchandise, with closed front and sides, and open back, with the men seated on wooden benches. After the passage of the commission’s order on the complaint, bids for the transportation of the men were invited from the railroad company and many trucking and bus companies, but only one bid, and that for the hauling of 750 men, was received. The Government, therefore, returned to its existing contract, and the equity proceeding tó preserve it.

Before the contract was made, the railroad company had offered to carry the workmen between Baltimore and its Annapolis stations at the rate of forty-five cents for each passenger. Carriage by that means would, of course, have necessitated employment of trucks to distribute and gather the men at the Annapolis end of the journey. A ³⁸⁹ limit placed by the government agencies upon the Navy Department’s expenditures for the transportation of laborers would have prevented acceptance of that rate, but the fact seems to furnish no answer to the questions to be solved, for supplying too little money for employing carriers qualified under the law would not, as we conceive it, authorize bringing into operation on the highways, by the contract, a system of conveyance outside the law. The fact leaves unaffected the question whether this system is within or without the law; and the question is to be answered in the same way whether the funds supplied are inadequate or ample.

That the appellees have been acting as independent private contract carriers seems to the court plain. Besides owning the trucks, and equipping and insuring them as owners, they have had their own employees driving them. The facts that the operation is for the benefit and convenience of the Government exclusively, and that the Government has fixed the times of movement and the extent of the journey, do not alter the fact of independence of the contractors. Bentley, Shriver & Co. v. Edwards, 100 Md. 652 , 60 A. 283 ; Hull v. Philadelphia & R. R. Co., 132 Md. 540 , 104 A. 274 ; Hilton Quarries v. Hall, 161 Md. 518 , 158 A. 19 .

And a foremost question is whether such contractors come at all within the description of those to be affected by sections 252 and 251 of article 56 of the Code (Supp. 1935). “All motor vehicles,” reads section 252, “except when used exclusively for the transportation of pupils to and from public and/or private schools, operating for hire intrastate over the improved roads and streets of this State * * * on regular schedules or between fixed termini, * * * shall be subject to the provisions of this sub-title * * * except that the public duties of a common carrier shall not thereby be imposed on the owner of any such vehicle not actually engaged in public transportation.” It was by an Act of 1927, chapter 620, that this section was inserted in the law. The requirements had previously been confined to owners of motor vehicles used in the “public intrastate ³⁹⁰ transportation of passengers for hire” (section 251) ; and the purpose described in the title of the new Act was to subject to the provisions of the motor vehicle license regulations “all motor vehicles operating for hire on regular schedules or between fixed termini, with certain exceptions.” The inclusion was comprehensive, and specification of the exceptions precludes our making any other. Vanderford v. Farmers’ & Mechanics’ Nat.