McColgan v. Baltimore Belt Railroad

Fowler, J., delivered the opinion of the Court. The appellant, Charles C. McColgan, recovered a judgment against the Baltimore Belt Railroad Company in the Superior Court of Baltimore City for $3,543-75, which was affirmed by this Court. It is admitted that the judgment is valid and subsisting and that no part of it has been paid or otherwise discharged. The appellant procured an execution to issue from this Court to the sheriff of Baltimore City to sell for the payment of said judgment the lands and tenements of the appellee company, consisting of twenty-four lots of ground, with the improvements thereon, in the city of Baltimore, which, it is admitted, form part of the right of way of the appellee and upon which it has laid its tracks, and which therefore constitute an essential part of its railroad and are necessary to its operation.

The appellee’s property is mortgaged for a loan of six millions of dollars, and a sale of the lots levied on would prevent it from earning money to pay this and other debts. The Circuit Court of Baltimore City, upon a bill filed by the railroad company, passed a decree enjoining the judgment creditor from selling the lots in question in satisfaction of his judgment — and hence this appeal. The contention of the appellant is that he may, without ⁵²¹ showing any special or general legislative authority other than the right which any judgment creditor has to sell the property of a debtor, levy upon and sell the corporate property of a railroad company, which is essential to the performance of its corporate duties. And although this proposition is in direct conflict with the views of this Court as announced in State v. Consolidation Company, 46 Md. 1 , and Brady v. Johnson, 75 Md. 449 , and against the weight of authority, we are asked to adopt it and reverse the decree appealed from which is based upon and in entire accord with the cases just cited.

In Brady's case, supra, we held that it is clear upon well settled principles that an execution will not lie against property such as the property here" levied upon is admitted to be. And in the valuable notes to this case, as reported in 20 L. R. A. 737, a number of authorities sustaining our view are collected. The learned authors of Elliott on Railroads, the most recent and one of the most valuable works on the subject, cite Brady’s case, and a long list of authorities, including the Supreme Court of the United States and the highest Courts of Indiana, Tennessee, Massachusetts, Ohio, Pennsylvania, California, Illinois and Nebraska in support of the proposition that “ The franchise of a railroad company and corporate property essential to the enjoyment of the franchise, are not subject to sale on execution, unless the Legislature authorizes or assents to the transfer.” 2 Elliott on Railroads, section 520. But in addition to this, all of the corporate