Baltimore Union Passenger Railway Co. v. Mayor of Baltimore

Irving, J., delivered the opinion of the Court. The appellee-sued the appellant in the Superior Court of Baltimore City, and the case was removed to Baltimore County for trial. The declaration sets up a claim for park tax from February 1st, 1885, to March 15th, 1881. The appellant was incorporated under the G-eneral Railway Law of the State, and was, by ordinance No. 150 of the ordinances of the City of Baltimore of 1880, (Rev. City Code of 1885, page 323,) authorized to construct certain street passenger railways in the streets of the city, subject to certain conditions, as follows, to wit: “to pay to the City Register for the use of the parit fund, quarterly, twelve per centum of the gross receipts accruing from passenger travel within the city limits; and for each car in daily use upon said railways a license tax of five dollars shall be paid yearly to the City Comptroller. ” By the Act of 1882, chapter 229, the Legislature assumed control of the whole matter, fixed the fare at five cents for aclults, and three cents for children, and reduced the park tax from twelve to nine per centum of the gross receipts. ■ The appellant had three railway lines, viz: The Huntingdon avenue line, Columbia avenue line, and the Pratt Street line.

The two last named were wholly within the city limits; but the first extended beyond the city limits for the distance of one-half mile; and this fact has given rise to this controversy. For this half mile of track, beyond the city limits, of the Huntingdon ⁴¹³ avenue line, the company deducted one-half the gross receipts of the company from all their lines, and paid the city only the nine per cent, tax on the other half of the receipts. To this claim on the part of the appellant of the right to deduct one-lialf of the whole receipts of the company from all their lines, because of this half mile of trade of one of the lines which is outside the city limits, and to pay no more park tax than what the other half yields, the appellee objected, and brought this suit to recover such sum in addition as the law entitles the city to receive. The Huntingdon avenue line travels 2.69 miles, one-half mile thereof only being outside the city.

The distance travelled by a car of the Columbia avenue line is 3.58 miles, wholly within the city, and the Pratt street line, wholly in the city, travels 2.36 miles. The aggregate of car mileage is 8.63 miles; but, as certain portions of the tracks are common to each, making allowance for the distance travelled on common tracks, the total of track mileage is only 7.08 miles. Inasmuch as one of these lines extends beyond the city, and into Baltimore County, the gross receipts from or on account of that portion of the track which is without the city limits ought not to pay any part of the nine per centum tax which has been imposed for the privilege accorded by the city to the appellant of using its streets for railway purposes. But it is self-evident that an arbitrary deduction of one-half the gross receipts of all the lines of the appellant to represent the revenues derived from the one-half mile of track outside the city cannot be right.

To deduct one-half of the gross earnings before computing the tax to be paid, as representing the revenues derived from that half mile outside the city limits, which is only about one-sixteenth of the whole mileage of the appellant, is suggestive of such an enormous amount of work done and money earned by that ⁴¹⁴ portion of the road, as compared with the rest of the mileage within the city, as taxes credulity too heavily for acceptance as a fair basis of settlement with the city. Having accepted their privileges on the condition of paying this tax upon the gross receipts, it was the duty of the appellant to furnish an accurate statement of such receipts. Upon a bill for discovery in aid of this suit, the total gross receipts have been given in response to the demand as $277,269; hut that amount includes the receipts from the county part of the tracks, of which they say they hare kept no account separate and apart from the other parts of their lines. In their answer to the bill for discovery, and by the testimony of their officers, it is shown, that they thought it impracticable by the methods- and agencies used by the company, to keep a separate account of the fares received from that part of the road.

Having no separate fare for the part of the road lying outside the city limits, but the five cents paid outside the city entitling the passenger to ride to any part of the city on that line, and by a free transfer to any part of the city traversed by any one of the lines of the appellant, and vice versa for persons getting on in the city and going to the county, it is clear that some method must he adopted to determine with reasonable accuracy what proportion of the revenues shall be deducted as not liable to tax. The evidence shows that a very small part of the fares received were paid for'rides 'begun and ended on the county part of the track. The five cents paid, therefore, in very much the larger number of instances, represented rides wholly in the city, and those begun in the county and ended in the city, or in the city and ended in the county; and inasmuch as portions of the tracks in the city were travelled by each line of cars; and inasmuch as the system of transfers from one line to another prevailed, by which passengers could start on ⁴¹⁵ one line and end their trip on another, it is plain -that any method which migdit he adopted to ascertain a proper deduction from the total gross receipts to represent the earnings of that part of the Huntingdon avenue line which was outside the city limits, must involve a calculation on the basis of the gross receipts from all the lines. The first five exceptions relate to evidence offered on hehalf of the appellant which was rejected.

By that evidence it was sought to establish a proper basis of computation, on the ground that the larger part of the passengers on that line got on in the county and rode into the city, or in the city and rode into the county, than began and ended their rides in the city. Witnesses who rode on that line twice or more a day stated their estimates from casual observation as to the proportion of passengers so doing. That the exclusion of such evidence was no ground of error is apparent from several considerations. If it was impracticable, as the company stated, to keep an accurate account by a record of the passengers riding on the road, when, and where they entered, and where they alighted, it is perfectly clear, that the testimony of passengers who only observed now and then, and who did not tell and could not tell at what point outside the city the passengers they observed got on, or where they got off in the city, or vice versa, could not supply a safe method of ascertaining what was wanted.

It would not only he the merest guess, resulting from only occasional observation, but it gave no possible help toward determining what proportion of the journeys of these passengers was made on the tracks in the city, and the track outside the city. Certainly, unless some method of reaching that proportion was supplied by proof 'in addition to the statements of those witnesses, their statements would not enable a jury to form a reasonably lair basis for tlie jury to determine what was the real earnings of Baltimore County track. ⁴¹⁶ The sixth exception brings for review the action of the Court on the prayers submitted by the respective parties; and as the second prayer on the part of the plaintiff was adopted by the Court below, as supplying to the jury the true method of making the ascertainment of proper allowance for the receipts on account of the track outside of the city limits, we will consider that first. The evidence having supplied the means of determining with certainty how many miles each car of the company, on each line, travelled during the period involved in the suit, by proof of how many round trijDS each car on each line made during the period sued for; and that proof enabling the j ury to find with accuracy how many miles were travelled by the cars of the company upon the half mile of track of the Huntingdon avenue line outside the city; and being given the total gross receipts