Chesapeake & Potomac Telephone Co. v. Mayor of Baltimore

Offutt, J., delivered the opinion of the Court. This is the second appeal taken in this case and all the facts material to a consideration of the questions raised by it will be found stated in the case of Mayor and City Council of Baltimore v. Chesapeake and Potomac Telephone Com- ⁷² pony, 142 Md. 79 , and the several propositions of law upon which the appellant relies on this appeal were decided adversely to its contentions in an opinion filed in that case by Judge Briscoe. In that case the judgment in the lower court was for the defendant and from that judgment the plaintiff appealed. Upon the appeal the judgment was reversed and the cause remanded.

When.it was reached for trial the lower court, upon an agreed statement of facts, returned a verdict for the plaintiff, upon which judgment was in due course entered, and from that judgment this appeal was taken. At the conclusion of the evidence in the trial court the defendant offered three prayers, which respectively submitted these propositions: (1) that an ordinance of The Mayor and City Council of Baltimore, imposing a tax of two dollars each on the poles of the appellant on the public highways in the territory annexed to the City of Baltimore by the Acts of 1918, chapter 82, is invalid, because it impairs the obligation of certain contracts between the appellant and the State of Maryland; (2) that such ordinance is invalid because it denies the appellant the equal protection of the law, and (3) that it is invalid because it deprives the appellant of property without due process of law, in violation of the guaranties of the Constitution of the United States. At the first trial of the ca'se the lower court directed a verdict for the defendant, and upon the appeal its prayers, embodying, the propositions we have just stated, were not before the court, and therefore we are asked by the learned counsel for the appellant to consider those questions on this appeal, upon the following theory, which they state in their brief in these words: “It will be noted that the defendant’s first prayer and the defendant’s third prayer, offered and refused by the court below on the second trial of this case in the Baltimore City Court, present the same questions of law as