Barton v. Public Service Commission

³⁶² Hammond, J., delivered the opinion of the Court. Appellants are owners of taxicabs licensed by Baltimore County who operate primarily in that County, although they legally may, and occasionally do, carry passengers from there to Baltimore City. They applied to the Public Service Commission for the right, heretofore denied them by the Commission, to pick up fares in the City for the return trip to the County. Their application was rejected, and they appealed to the Circuit Court for Baltimore County, which affirmed.

We are asked to reverse the Circuit Court. The appellants contend that they are being denied the equal protection of the laws and that the action of the Public Service Commission was discriminatory, arbitrary and unlawful. The contentions so blend, one into the other, that they may be considered and decided together. The applicable statutory law is found in Code, 1957 Supp., Art. 78.

In Sec. 2, taxicabs are declared to be common carriers; Sec. 38 (a) provides that no taxicab may be operated in any incorporated city or town with a population of more than fifty thousand or between points within such city or town and points without thereof without a written permit from the Commission; Sec. 38 (b) provides that a permit is to be issued if the Commission after investigation judges that its granting would be best for the public welfare and convenience; Sec. 83 provides for judicial review of any final order or decision of the Commission, affirmative or negative; and Sec. 90 directs that every such final decision or order shall be prima facie correct and be affirmed, unless (so far as is here pertinent) “clearly shown to be (1) in violation of constitutional provisions, or * * * (4) arbitrary or capricious.” The Commission allows Baltimore City cabs to go to Baltimore County and to pick up passengers there for the return trip. On the other hand, whereas County taxicabs are allowed to bring passengers to the City and to return the same passengers to the County, under the rules of the Commission no new passenger may be accepted for the return trip to the County. Rule 4 establishes a zone of proximity to Baltimore City of a quarter of a mile from the boundary along any route traversed by a taxicab. Rule 8 says in part: “Taxicabs ³⁶³ which are being operated in communities outside the proximity of Baltimore, as defined in Rule 4, which are not operating under a permit from the Commission, may bring passengers from said communities into the City of Baltimore, but shall not receive any passenger within the City, other than said passengers brought from a community outside the proximity thereof.” The Code of Public Local Laws of Baltimore County, Everstine, 1955, Sec. 273, authorizes the County to regulate taxicabs there operating regularly, but provides that the regulation shall not extend to “taxicabs regularly operating in Baltimore City and operating occasionally in Baltimore County, provided that said taxicabs are subjected to regulation * * * by the Public Service Commission of Maryland It is clear that taxicabs licensed in Baltimore City lawfully may do in Baltimore County what taxicabs licensed in the County may not do in the City.

Clearly there is discrimination in the general or popular meaning of the word, but this is not to say that there is discrimination in the constitutional sense. If it is not arbitrary, discrimination is not invalid, and it is not arbitrary if it is based on a reasonable classification. Reasonableness of classification may often rest on a territorial basis, particularly where the affected territory has a large concentration of people. Salsburg v. Maryland, 346 U. S. 545 , 98 L. Ed. 281 , 288 (“The Equal Protection Clause relates to equality between persons as such rather than between areas.”) affirming Salsburg v. State, 201 Md. 212 (rule of evidence different in one county from that in most of the State); Weksler v. Collins (Ill.), 147 N. E. 797 ; and Packard v. Banton, 264 U. S. 140 , 68 L. Ed. 596 (in each case taxicabs in only the largest cities of the State were required to carry insurance); Tenement House Department v. Moeschen (N. Y.), 72 N. E. 231 , affirmed by the Supreme Court under the name of Moeschen v. New York Tenement House Department, 203 U. S. 583 , 51 L. Ed. 328 (the law affected only tenement houses and only those in cities of first class); State v. Shapiro, 131 Md. 168 (different rates of license fees for privilege of dealing in junk according to the population of the place where the business was conducted); ³⁶⁴ Mt.

Vernon Co. v. Frankfort Co., 111 Md. 561 (children under fourteen prohibited in mills and factories of Baltimore City and several counties but allowed to so work in the other counties and in canning factories). “It has long been the practice of the Maryland Legislature either to enact local laws or to exempt particular counties from the operation of general laws.” Neuenschwander v. Washington Sanitary Commission, 187 Md. 67, 80 . The Public Service Commission wrote appellants that it had denied their application for the reasons set forth in Governor McKeldin’s veto message as to Senate Bill 187 of the 1955 session of the Legislature. That bill would have permitted Baltimore County cabs to take on passengers in Baltimore City for the return trip. The Governor reported to the Legislature that it would be impossible to supervise adequately operations of the Baltimore County taxicabs in the City to make sure that they were merely transporting passengers from the City, and that even if this could be done, the practical effect of the bill would be to increase by indirection the number of taxicab licenses in the City.

It is stipulated that the Commission’s reasons