Park Tax Case

McSherry, C. J., delivered the opinion of the Court. The question involved in this case is clearly stated in the following terms by the learned Judge whose rulings are now before us for review : “ The defendant company operates a local passenger railway, running for a part of its length (about two miles) through the annexed district, or within the present territorial limits of the city as extended, and for the rest of its length (about three and one-half miles) westwardly beyond those limits, and for the whole of its length on its own right of way, acquired and maintained at its own expense. This right of way it has purchased from the turnpike company upon whose roadbed its tracks are laid, under legislative authority. No street franchise or concession of any kind whatever has been conferred upon it by the city.

Its tracks are not laid upon, nor does it use, nor has it received any municipal privilege upon any city street or streets acquired by the city by grant, dedication or condemnation, or in any other way, and maintained at public expense. The question is, whether such an enterprise properly answers to the description of a street railway within the intent of the laws imposing the park tax of nine per cent, upon gross receipts from all street railway lines within the present city limits ?” The appellee company is the successor of the Baltimore, Catonsville and Ellicott’s Mills Passenger Railway Company. This latter company was incorporated by the General Assembly of Maryland under an Act passed at the January session of 1.860, ch. 34. By authority of this Act the corporation thereby created constructed a single track horse railway upon the bed of a turnpike road owned by the president, managers and company of the Baltimore and Fredericktown Turnpike Road, after first, by agreement, procuring for a money consideration, the right of way from the turnpike company.

The railway thus constructed was ¹⁵ located wholly in Baltimore County, with one terminus just at the city limits. Some thirty years afterwards this railway company became embarrassed financially and its property was sold under foreclosure proceedings, and the present appellee was the purchaser and assumed the same name, with the single exception that the word railroad was substituted for railway. The re-organized company—the appellee—having determined to change the motive power for the propulsion of its cars from horses to electricity, was empowered under the Act of 1894, ch. 162, to contract with the turnpike company for the amount of compensation to be paid to the latter for the use of its roadbed by this different and more rapid method of transit. Conformably to this Act the right to use the turnpike roadbed for an electric railroad was acquired by agreement for the sum of twenty-eight thousand dollars in money and the further consideration of the performance of certain stipulations which need not be stated or considered, as they are not material in respect to the pending controversy.

By ch. 98 of the Acts of 1888 the limits of Baltimore were extended and part of the railway now owned by the appellee and theretofore built by its predecessor was brought within the enlarged outlines of the city. When permission was first given by the Mayor and City Council in 1858, by ordinance, to certain individuals to construct a passenger railway upon some of the city streets and to run thereon cars drawn by horses, a tax of one-fifth portion of the whole passenger receipts was exacted; and when in 1862 these same individuals secured from the General Assembly an Act incorporating the Baltimore City Passenger Railway Company the exaction of one-fifth of the gross receipts was embodied in the fourth section of the charter. As succeeding street railway companies were formed a like tax was imposed upon them by the city. In 1874, by ordinance, the rate of this tax was reduced to twelve per cent., and in 1882 the Legislature, by chapter 229, provided “that each of the several passenger horse ¹⁶ railway companies in the city of Baltimore shall charge five cents and no more” for conveying each passenger, &c.; and by the second section, “that in lieu and substitution of the twelve per cent, tax now imposed upon and payable by the said several passenger horse railway companies mentioned in the first section of this Act, the said several passenger horse railway companies shall pay * * a tax upon their gross receipts of nine per cent., &c.” This tax is what is known as the park tax, and, up to the time of the annexation to the city of the outlying belt in 1888, was imposed upon and collected only from street railway companies upon the basis of their receipts within the city limits.

Since the decision by this Court of the case of Balto. U. P. Ry. Co. v. M. & C. C. Balto., 71 Md. 405 , there can be no question that the tax thus imposed was laid and collected in consideration of the privilege or franchise granted by the city to the several street railway companies to lay their tracks and to run their cars upon the public thoroughfares of the city. “ The nine per cent, tax * * has been imposed for the privilege accorded by the city to the appellant of