Baltimore & Ohio Railroad v. Waters

Pearce, J., delivered the opinion of the Court. The Baltimore and Ohio Railroad Company was chartered by ch. 123 of the Acts of Assembly in the year 1826, and by tlie fourteenth section of that Act the president and directors of.said company were “invested with all the rights and powers necessary to the construction and repair of a railroad from the city of Baltimore to some suitable point on the Ohio river, to be by them determined, not exceeding sixty-six feet wide, and with as many set of tracks as the said president and directors, or a majority of them may deem necessary; and in the same ³⁹⁸ section it was enacted “that they, or a majority of them, may make or cause to be made, lateral railroads, in any direction whatsoever, in connection with said railroad from the city of Baltimore to the Ohio river, and in the construction of the same, or their works, shall have, possess, and may exercise, all the rights and powers hereby given them in order to the construction or repair of the said railroad from the city of Baltimore to the Ohio river.” Section 15 of the charter conferred upon the corporation ample powers of condemnation to be exercised “for the construction or repair of any of said roads, or of any of their works’’ and in sec. 23, the concluding section of the charter, it was provided, “That full right and privilege is hereby reserved to the citizens of this State, or any company hereafter to be incorporated under the authority of this State, to connect with the road hereby provided for, any other railroad leading from the main route to any part or parts of this State, provided, that in forming such connection, no injury shall be done to the works of the company hereby incorporated.” The terminus upon the Ohio river was subsequently fixed at Wheeling then in Virginia, and the road was completed to that point and opened for business January 1st, 1853. In April, 1906, the president and directors of this company, in pursuance of the authority conferred in section fourteen of its charter, determined to build a lateral railroad iñ connection with its railroad from the city of Baltimore to the Ohio river, from a point on its main line at or near Gorsuch Station in Carroll County, Maryland, through Baltimore County, and a portion of Harford County, to a connection with the Philadelphia Branch of the Baltimore and Ohio Railroad, between Van Bibber and Sewells Stations, to be known as the Patapsco and Susquehannah Branch of the Baltimore and Ohio Railroad Company, and have surveyed, located, and adopted the route or line of the same which is approximately forty miles in length, and passes several miles to the north of the city of Baltimore, effecting a saving of thirteen and a half ³⁹⁹ miles over the present line through the city of Baltimore, and relieving the congestion of freight and passenger traffic now passing through the tunnel from Camden Station to Mount Royal Station, and the tunnel beyond Mount Royal Station. The descent over the main line from Gorsuch to the city of Baltimore, and the ascent over the Philadelphia Branch to Sewells, are by grades of about eight-tenths of one per cent, while by the proposed lateral line, the grades will be much lower and more even, being about three-tenths of one per cent for east bound traffic and five-tenths of one per cent for west bound traffic, the latter grade being higher, because the west bound freight is lighter and many cars returning are empty.

This proposed lateral road runs through a tract of land in Baltimore County near Pikesville belonging to the appellee, and the appellant having taken the necessary steps to condemn the strip of land required for passage through said tract, the appellee filed a bill to enjoin the condemnation proceedings alleging that the defendant cannot exercise the power of condemnation “for constructing a steam railroad on the property of the appellee, not only because it is expressly prohibited from so doing by the Act of 1906, ch. 457, but also because the defendant has no such power under its charter, the said proposed road not being a lateral road within the meaning of the charter when properly construed.” The defendant answered fully, averring that the proposed road is a lateral road within the meaning of its charter, and denying that the Act of 1906, ch. 457, is effectual to forbid the construction of the road. Testimony was taken, and after argument, the Circuit Court for Baltimore County perpetually enjoined the further prosecution of the condemnation proceedings, and from that decree this appeal is taken. In the opinion filed with the decree, the learned Judge of the Circuit Court reached the conclusion that the proposed road was not a lateral railroad authorized by the charter to be built, and therefore did not find it necessary to consider the other question raised in the case, and we shall' follow this order of inquiry. ⁴⁰⁰ The considerations which controlled the view of the Court below may be best stated in extracts from his brief but clear opinion. He found from the testimony of the president and general manager of the company that the proposed line “was intended to relieve the congestion in the freight yards and at the tunnels in the city of Baltimore, by running freight trains from the west over it, intendedfor the east, and running freight trains over it from the east, intended.for the west, so that zvestern a7id eastern freight, now passing through the city, will pass around it. * * * The charter of the Baltimore and Ohio R. R. Co., Act of 1826, ch. 123, was very liberal to the railroad, but it was intended to be, and was, a Maryland and Baltimore railroad; Baltimore was then, as now, the great metropolis of the State, and it was intended by the Legislature that this road should make Baltimore greater.

It was the one. shipping port of the State of any importance, and the lawmakers at that time guarded with great caution its commerce,, and a suggestion at that time that the freight to be carried over the B. & O. Railroad for export would be shipped via Philadelphia or New York, would no doubt have been regarded as treasonable. The lawmakers at that time were not afraid that the freight over its line from the Ohio river to Baltimore would be diverted to some other port for export, for-the reason that there were no other railroads to carry it. So that the power .to build lateral railroads was a power to build branches to carry out the purpose for which the main line was built, towit, to develop the State, and make of Baltimore a great commercial city. In other words, a lateral roadas then understood, was, in the definition given by Bouvier; ‘a branch road running from some point on the main line, intended as a connecting line or feeder.’ There seems to be no legal straightedge to lay upon a railroad charter granting the right to build lateral lines (between its termini) to determine just what branches may be built under it.

Every such charter, must be considered alone,, and what might be regarded in one,(ás a. lateral branch, might not be interpreted as such in another. So that if the intention of the Legislature granting the charter can- ⁴⁰¹ be fairly gathered from the grant itself, or from the history of the corporation from its beginning, that intention should control the Court in deciding upon what is a lateral branch that may be built under the charter. Any branch, therefore from the main line that is not a feeder of the port of Baltimore, is not a lateral railroad as contemplated in the charter of 1826. * * * I do not believe from the evidence that the proposed branch will be a feeder of the main line between Baltimore and the Ohio river, as was intended by the Legislature at the time of the grant, a feeder for the commercial development of the port of Baltimore. Being of the opinion therefore it is not a lateral railroad authorized by the charter to be built, it is unnecessary for me to go into the second question raised by the pleadings.” Turning now to the charter itself, with a view to détermine how far its language sustains the meaning and purpose attributed to it by the Court below, a controlling, if not an exclusive, purpose to develop the port of Baltimore, we should naturally expect to find some clear and emphatic expression of the supposed legislative intent.

On the contrary, however, we have been able to discover no indication whatever in the language, of such intent. The title of-the Act is, “An Act to incorporate the Baltimore and Ohio Railroad Company. ” The first section names the commissioners to receive subscriptions to the capital stock and defines their duties and powers. The second section declares the capital stock shall be three millions of dollars in shares of one hundred dollars each, of which ten thousand shares shall be reserved for subscription by the State of Maryland, and five thousand for the city of Baltimore, for twelve months after the passage of the Act, and the remaining fifteen thousand shares to be open to any other subscribers. This section also declares the corporate name and confers the usual corporate powers.

Sec. 3 provides a method of reduction of subscriptions in case the shares are over subscribed. Sec. 4 regulates the payment of subscriptions. Sec. 5 provides that if within twelve months after opening the subscription books, ten thousand shares ⁴⁰² have not been subscribed, all subscriptions should be void, and the amounts paid in, less proper expenses, should be returned to the subscribers pro rata. Sec. 6 provides for the election of the first board of directors.

Sec. 7 provides for annual elections of directors to continue the succession, and gives to the State of Maryland and the city of Baltimore, respectively one'additional director for every 2500 shares of stock held by them respectively. Secs. 8, 9 and 10 deal with stockholder’s meetings, statements of the company’s affairs, and the oath of directors. Sec. 11 provides that if any of the stock reserved for the State or city shall not be subscribed for at the expiration of twelve months, such stock may be disposed of to any other person. Sec. 12 defines the powers and duties of the president and directors.

Sec. 13 provides for an increase of capital stock, if found to be necessary. Secs. 14 and 15 provide for power to contract for construction of the railroad from the city of Baltimore to some point on the Ohio river to be determined by them, and for the exercise of the power of condemnation for that purpose, and sec. 14 also contains the power already quoted in full, to build lateral railroads. Sec. 16 relates to the crossing of roads and ways. Sec. 17 makes some further provisions as to the use and occupation of any lands or materials necessary to the construction or repair of any of said roads.

Sec. 18 relates to the' purchase of machines and carriages for purposes of transportation on said road, and regulates the tolls to be charged for such transportation. Sec. 19 relates to dividends; sec. 20 to penalties for injuries done to the said railroads or any of their works, machines or vehicles. Sec. 21 provides that when organized as before provided, the company shall have all the powers and privileges granted by that Act. Sec. 22 provides the Act should be null and void if the road should not be commenced within two years from the passage of the Act, and should not be finished in the State of Maryland within ten years from its commencement.

The twenty-third and last section makes the provision already noticed for connections to be made with any other railroad incorporated under the authority of this State. ⁴⁰³ It will be seen from this summary of the charter provisions that the city of Baltimore is not mentioned in the charter except where it appears in the name of the corporation in the title, and in the body of the Act; in sections two-, three and eleven referring to the reservation of stock for the city of Baltimore; in section seven providing for directors on the part of the city; in section fourteen fixing the terminus a quo at the city of Baltimore; and in section eighteen regulating tolls to be charged on transportation “along said railway from the city of Baltimore to the Ohio river;” and nowhere in the charter is the city of Baltimore mentioned as a port nor is any mention made in the charter of any traffic'destined for export; so that it is difficult for us to understand how from the language of the charter, there can be gathered any legislative intent “that no branch from the main line that is not a feeder of the port of Baltimore, is not a lateral railroad as contemplated in the charter.” All great railroads penetrating the interior of the country naturally are built from or to, some seaport, with a view of sharing in the export trade, and certainly this must have been one of the considerations which led the Legislature to fix the city of Baltimore, the chief commercial city and the only seaport of any real importance in the State, as its eastern terminus. But this consideration falls far short of warranting the assumption that the development of the export trade of Balti more, rather than the development of all the material and commercial interests of the State and city was the controlling consideration in the grant of the charter, and so conclusively controlling, as to exclude from the broad and unrestricted designation of “lateral railroads,” any road which was not a feeder to the city of Baltimore in its character of a seaport. As was well said in the appellant’s brief, “The main line was to carry traffic both east and west, but (in the view of the Court below) a lateral must furnish traffic to be carried Eastzvard, and to Baltimore or it is not a lateral. Though it pour a tide of traffic (by means of lateral roads) into Cumberland, Hagerstown or Frederick (whether from the east or the west) it would not be carrying out the purposes of its charter.

The ⁴⁰⁴ most commonpurpose in building a lateral is to reach'another road. Any such road however, is capable of carrying traffic around a terminus, and therefore not a lateral.” The testimony taken in this case shows that the proposed road will run through a territory without east and west railroad facilities, but that it will cross and connect with the Western Maiyland,the Northern Central, and the Maryland and Pennsylvania Railroad, thereby interchanging traffic with all these roads, both giving and receiving it, and directly tending to develop the trade and transportation of the region it traverses. Yet upon the theory adopted below these connections cannot be made under the charter. But that this was not the policy of the State in granting this charter, appears to us to be conclusively shown by section twenty-three, which in express terms reserves “full right to the citizens of this State, or any company hereafter to be incorporated under the authority of this State, to connect with the road hereby provided for, any other railroad leading from the main route to any part or parts of this State. ” Surely it would be a strange legislative policy which would forbid this road to build any lateral which was not a feeder to the port of Baltimore, while permitting .any other railroad thereafter to be built, to force upon it a connection designed to divert trade from any point on its line, even from its terminus at the city of Baltimore.

No Court has been more explicit than our own in laying down the rules for construction of statutes. In Allen v. Mutual Fire Ins. Co., 2 Md. 111 , the defendants charter authorized it “to make insurance on any kind of property” and the Court was asked to restrict its meaning to real estate only. The Court refused to do this saying that to do so “would be to violate one of the plainest, well settled rules of construction,” citing 6 Bacons Abridgment, 380, in which it is said: “Where words in a statute are express, plain and clear the words ought to be understood according to their genuine and natural signification and import, unless by such exposition a contradiction or inconsistency would arise in the statute, by reason of some subsequent clause from whence it might be inferred that the intent of Parliament was otherwise.” ⁴⁰⁵ In Alexander v. Worthington, 5 Md. 471 , Judge Legrand said: “The language of a statute is its most natural expositor) and when the language is susceptible of a sensible interpretation it is not to be controlled by extraneous considerations. * * We are not to be at liberty to imagine an intent, and bind the letter of the Act to that intent * * with the view of making the letter express an intent which the statute in its native form does not evidence. ” And in Smith v. State, 66 Md. 217, the Court said: “Even when a Court is convinced that the Legislature really meant and intended something not expressed, by the phraseology of the Act, it will not deem itself authorized to depart from the plain meaning of language which is free from ambiguity.” So in Hawbecker v. Hawbecker, 43 Md. 519 ) Judge Miller said: “It would be dangerous or unwarrantable for a Court to grope for an intent, or to make one from their own ideas of policy or morals, and on that ground, say that a particular case is withdrawn from the operation of the plain and unambigous language of a statute.” In the very recent case oí Agricultural College v. Atkinson, 102 Md. 561 , Judge Burke said: “Beyond the words employed, if the meaning be plain and intelligible, neither officer, nor Court is to go in search of legislative intent; but the Legislature must be understoqd to intend what is plainly expressed, and nothing then remains but to give the intent effect.” We cannot therefore agree with the learned Judge below in restricting as he did the broad and unqualified language of this charter.

But we have yet to inquire what is the true meaning of the term “Lateral Railroad.” In the view' taken by the Circuit Court, it was not necessary for it to make this inquiry but it is necessary for us, and we are not without ample recourse to cases in other Courts of high authority. Before referring to these, it may be well to observe that there is nothing peculiar about the charter of the B. & O. R. R. Co. which would discriminate it in respect to branch roads from the charters considered in those cases. The charter of the B. & O. R. R. Co. was one of the earliest granted in this country, and is believed ⁴⁰⁶ to have been the model of many of the later organized roads. In most of these, the same general-power is given to construct lateral roads, and in many the language used is very nearly the same.

In almost all, an important city of the State granting the charter is made one of the termini; so that the views expressed by the Courts of those States in which the meaning of this term has been considered; should be especially worthy of our consideration. In Newall v. Galena & Chicago Union R. R. Co., 14 Ill. 273 , the plaintiff sought to enjoin the defendant from constructing a lateral road Irom the main line towards Dixon on the ground of want of power. The language of the charter was, “and they may also construct, maintain, and use such other lateral routes as may be deemed advantageous, and expedient and necessary, under the same rights and privileges as by this Act is provided for the construction of the main route.” The proposed road contemplated a connection at Dixon with the Rockford and Rock Island R. R. then in course of construction, and the Court said “The question is, is this a lateral road within the provision of the charter above quoted? We think it is.

A lateral road is one proceeding from some point on the main trunk between its termini. This is a road lateral to, and proceeding from the main road. This is a simple fact. Ingenuity cannot remove or disprove it. * * We were asked in argument, if the defendants may build a road 40 miles in length, and terminating or connecting with, another road, at a distant point from the main trunk of this road, of what length, or to what point, may they not build a lateral road?

We do not feel called upon to answer the question. 7he Legislature has not seen fit to fix a limit, and we do not feel called upon in this case at least, to do so. * * I fully recognize the propriety, and even necessity of applying the rule of strict construction to the powers granted in these railroad charters; but the rule can only be applied in cases of ambiguity, or where a power is claimed by inference or implication, and is not expressly given by the charter. Where a power is expressly given, a strict construction maintains it. There must be ambiguity to give room for construction. The Leg ⁴⁰⁷ islature takes the resposibility of granting these charters, and it is for them to see that too much power is not expressly given.. * * The legislature has no right to give a power without restriction, relying upon the Courts to restrain its exercise within judicious limits.” In Pa.

R. R. Co. v. Canal Commissioners, 21 Pa. St. 9, the effort was to extend by construction the corporate powers of the Railroad Company, and in refusing this, Judge Black, in the strong, sententious language which marked his opinions, said: “The privileges of the Pennsylvania R. R. Co. may be too rigidly restricted. If the usefulness of the company would be increased by extending them, let the Legislature see to it. But let it be remembered that nothing but plain English words will do it, and when called on by counsel to enlarge corporate powers by construction, we can only repeat again and again and that our duty imperatively forbids it.” To this we may properly add, that when powers have been granted in plain English words, our duty imperatively forbids us to curtail them by attempted construction.

In B. & O. R. R. v. Wheeling, 13 Grattan, 40, the same question now before us arose under the Virginia Charter of the B. & O. R. R., which was contained in the Act of March 6th, 1847. This Act authorized the company to complete théir road through the territory of the State to a depot to be established on the northern side of Wheeling creek in the city of Wheeling. The second section provided; “That to secure to the said city of Wheeling the benefit of the western terminus, all parts of said railroad between the Monongahela river and said terminus, shall be opened simultaneously for the transportation of freight and passengers,” and then made certain regulations as to tolls to be.charged. The sixth section subjected the company to the provisions of the general railroad law of 1837, by which anthority was given to any railroad subject to that law, to make lateral railroads in any direction whatever, not exceeding ten miles in length., and the Court said that provision was as much a part of the Act of March 6th, 1847, as if embodied therein in totidem verbis. ⁴⁰⁸ The Central Ohio R. R. established its terminus at Belair on the west side of the Ohio river, opposite Benwood, a few miles south of Wheeling, and the B. & O. R. R. desiring to connect directly with that road, began the construction of a branch from a point before reaching Wheeling, to Benwood, where the connection would be made by a ferry.

After the passage of the Act of March 6th, 1847, in order to induce the B. & O. R. R. to accept said Act, an agreement was made between the railroad company and the city of Wheeling by which said city engaged to do certain things, and the agreement set forth: “The intention of the parties to the agreement, among other things, to secure to the city of Wheeling the practical benefits of the terminus of the B. & O. R. R. according to the provisions of said law.” The city of Wheeling claimed that the construction of this branch would deprive her of the practical benefits of the terminus, and prayed an injunction to restrain its construction. Two great roads were at that time in course of construction in Ohio and approaching the Ohio river. The Central Ohio passing through the centre of the State, and the Cincinnati and Marietta passing through the southern part, and the B. & O. R. R. Co. desired to connect with both. The Court said: “In this state of things it was important that the Act should plainly express the intention of the Legislature; that nothing should be intended which was not expressed, and nothing expressed which was not intended, in order that there might be no mistake on either side.

When therefore 'the Legislature by that Act gave to the company the branching power without any express restriction, it cannot fairly be presumed that they intended to restrict it. If they had so intended, they ought and would have said so expressly.” The Court therefore held the provision applicable, and that it authorized the connection in question. The physical situation will appear from the plat annexed hereto. , ⁴⁰⁹ It was urged in argument that the city of Wheeling was not only entitled to the benefit of a direct and continuous railway to one of the largest and most important Atlantic cities, and all the local benefit incident to the terminus of a great railroad, but also to the benefit of connection between that and other roads, within her limits. But the Court answered this by saying, “She expected to obtain these by the advantages of her position, her wealth, trade, population and importance; which she hoped and expected would be sufficient to attract to her limits all connections which might otherwise have been made at some other point of the road within its limited river front of ten or twenty miles.

For these expected benefits the company did not stipulate by the acceptance of the Act, except to the extent of a compliance with its terms.” In Blanton v. Richmond F. & P. R. R., 86 Va. 618 , the charter gave power to construct branch or lateral roads, and it was held that this power .gave authority to construct a branch line running in the same general direction as the main line, and the fact that the”new line will connect the main line with another railroad makes it none the less a branch road. The language of the charter was, “They may make or cause to be made, branches or lateral railroads, in any direction whatsoever, in connection with said railroad, not exceeding ten miles in length.” Richmond was the southern terminus of the R. ⁴¹⁰ F. & P. R. R., and it was proposed to build a lateral road around the city connecting with the Richmond & Petersburg R. Co., as shown in the annexed plat. The Court said the charter placed it entirely in the power of the president and directors to say how many and in what directions branches or lateral roads should be run. “That a lateral railroad is nothing more or less than an off-shoot from the main line or stem. And this is the meaning attributed to it by the Supreme Court of Pennsylvania in McAboy's Appeal, 107 Pa.

St. 558.” It was contended in that case that the proposed road would change the terminus of R. F. & P. R. R. from Richmond where it- was fixed by the charter, but the Court denied this result saying, “It simply proposes to build this branch for the purpose of carrying through business outside of the limits of the city, leaving the passengers and freight destined for Richmond to be delivered there. * * * As it does not change the terminus, serves as a feeder to the main stem, assists the company to develop the country through which it passes, and tends to promote the public convenience both as to trade and travel, it cannot be regarded as obnoxious to any of the objections that have been raised against it.” The same views have been held and expressed in a number of other cases, among which may be cited Pittsburg v. Penn ⁴¹¹ sylvania, 48 Pa. 355 ; Price v. Pa. R. R., 209 Pa. St. 81; Biles v. Tacoma R. R., 5 Wash. 514 ; Howard Co. v. Booneville Bank, 108 U. S. 316 . We have been referred to Akers v. Union N. J. R. R., 14 Vroom 110 , as furnishing the best test of what is a lateral road, in which the Court said: “It denotes a road connected indeed with the main line, but not a mere incident of it, not constructed simply to facilitate the business of the chief railway, but designed to have a business of its own, for the transportation of persons or property to and from places not reached by the principal route.” This language was used in reference to what were shown to be mere side tracks leading to freight houses on or near the line of the road.

In Grey v. Greenville & Hudson R. W. Co., 59 N. J. Eq. 385, Vice Chancellor Emery, following that case, and speaking of a road, which he said, “begins and ends on the main