Pennsylvania Railroad v. Baltimore & Ohio Railroad

Miller, J., delivered the opinion of the Court. By the Act of 1874, ch. 446, it was enacted “That all railroads within the State of Maryland, which cross or connect with any other road, or which may hereafter be so constructed or built, shall be, and are hereby required to permit the road so crossing or connecting to use their ■track or roadioay for the passage of the locomotives, cars, ■and tonnage, at a rate of tolls for passage of trains and tonnage not exceeding the rate per ton per mile, or proportionate part of a mile so used, as is charged for through freight per ton per mile ; provided, however, that the right of any road to use the track of any connecting road under this Act shall not be extended to a greater distance than five miles;" and “if the company of any railroad in this State shall fail or refuse to comply with the provisions of this Act, the party aggrieved shall have the right to recover, upon suit in any Court of this State that has jurisdiction, a sum not less than five hundred or more than one thousand dollars for each day of refusal or neglect.” The Pennsylvania Railroad Company in Maryland, which was incorporated under the free railroad law of 1876, with power to build and operate a railroad from Ellerslie in Allegany County to and witbin the City of Cumberland, sued the Baltimore and Ohio Railroad Company to recover th& penalty prescribed by this Act. The deelax-ation alleges, that the plaintiff’s road crosses at grade the tracks of the defendant’s road at a point near the defendant’s viaduct over "Will’s Creek, in Cumberland, that under the above Act it was entitled to use the tracks and roadways of the defendant on the terms prescribed by the Act, from the point of crossing to the basin wharf of the Chesapeake and Ohio Canal Company, a distance of less than five miles, and that defendant, for the period of one hundred and fifty-three days, refused to permit such use by the plaintiff whereby, and by force of said Act of Assembly an action hath acccued to the plaintiff, to have and ²⁶⁷ demand of the defendant not less than $500, for each day during which the defendant so refused to permit the plaintiff to use its track or roadway. To this declaration the defendant pleaded seven pleas, setting up various defences to the action.

The plaintiff replied to some of these pleas and demurred to others, and the defendant demurred to the replications. The Court sustained the demurrer to the replications, and overruled it as to the pleas. These pleadings need not be stated at length, for in the view we take of it, the determination of two questions will dispose of the case. 1st. One of the defences relied on and pleaded is that the defendant company is not subject to the operation of this Act of 1874, and in our opinion this defence must be sustained.

This company was incorporated by the Act of 1826, ch. 123. There was no provision in this Act nor in the Constitution of the State then in force, reserving to the Legislature the right to repeal or amend this charter, and it was, in all its essential features, a contract between the State and the corporators within the protection of the Constitution of the United States, and could not therefore be repealed, or in any manner unpaired or affected by any subsequent legislation to which the company did not give its assent or accept. The 18th section of this charter contains, among others, the provisions that “it shall not be lawful for any other company, or any person or persons whatsoever to travel upon or use any of the roads of said company, or to transport persons, merchandise, produce or property of any description whatsoever, along said roads or any of them without the license or permission of the president and directors of said company ; and that said road or roads with all their works, improvements and profits, and all the machinery of transportation used on said roads are hereby vested in the said, company incorporated by this Act and their successors forever ; and the shares of the capital stock of the said com ²⁶⁸ pany shall he deemed and considered personal estate, and shall he exempt from the imposition of any tax or burthen by the States assenting to this law.” The last clause here quoted containing the exemption from taxation has been construed by this Court as a contract within the protection of the Constitution of the United States, and that it embraces all the property arid franchises of the company, including all lateral roads built under the provisions of the original charter. State vs. Balto. and Ohio Railroad Co., 48 Md., 50 .

But far more important and far more essential to its existence are the previous . clauses which vest in the company the absolute property in the “road oi‘ roads” they were authorized to construct, and which give to them the unrestricted control over such roads, and make it unlawful for any other company' or person to “travel upon or use them” without their license or permission. That these clauses also constitute essential parts of the contract thus protected we entertain no doubt, and the protection must be equally extensive including all lateral roads or tracks built and constructed under the powers conferred by this charter. Now it requires no argument to show that a law which would compel the defendants to permit any other company or corporation- “to use their track or roadway .for the passage of locomotives, cars, and tonnage ” for a distance of five miles, upon such terms and considerations as the Legislature might see ñt to prescribe, is an invasion of the exclusive privilege granted to the defendant by these claused of its charter. If such a law he valid as against the defendant, it would be competent for the Legislature to extend this use for the whole distance of the defendant’s road so as to work a' practical annulment of the most important clauses of its. charter.

The conflict between the Act of 1874 and these clauses is too obvious to admit of question. In fact, even a crossing of the defendant’s