Red Star Line v. Baughman

Sloan, J., delivered the opinion of the Court. This is an appeal from an order of the Court of Common Pleas of Baltimore City dismissing the appellant’s amended petition for a writ of mandamus against the appellee. The amended petition states that the petitioner is a Virginia corporation, qualified to do business in the State of Mary ⁶⁰⁹ land; that the business for which it was incorporated and conducted by it is the operation of passenger motor vehicles for hire, in pursuance of which it operate® passenger bus lines in interstate commerce only, between Washington, D. C., and Philadelphia, Pa., and between Baltimore, Maryland, and Harrisburg, Pennsylvania; that the schedules of the petitioner’s passenger cars on the two routes were filed with the Public Service Commission of Maryland, and the license fees computed and paid on or about January 1st, 1926, for the year 1926, on the basis of the fees required by section 251 of article 56 of the. Code, amounting to $6,486.25; that on August 1st, 1926, the petitioners diverted the Harrisburg-Baltimore line to the route between Washington and Baltimore; and on December 9th, 1926, diverted the car® on the Washington-Philadelphia route to1 the Washington-Baltimore route, leaving unused the license fees for the two portions of the year 1926, $1,206.75, for which demand was made upon the appellee, who is the.

Commissioner of Motor Vehicles of Maryland, and by him payment was refused. The petitioner further charges that the refusal of the appellee is “improper, unwarranted and a direct burden upon interstate commerce.” To this petition the appellee demurred, and it is on Judge ODunne’s ruling on the petition and demurrer that this, appeal is before us. It is provided by section 251 of article 56 of the Code that “it shall be the duty of each owner of a motor vehicle to be used in the public transportation of passengers for hire, operating over State, State Aid, improved county roads, and streets and roads of incorporated towns and cities in the State of Maryland, to secure a permit from the Public Service Commission of Maryland to operate over said roads and streets and present same to the Motor Vehicle Commissioner annually at the time and according to the method and provisions prescribed by law for owners of all other motor vehicles, to make an application in writing for registration with the Commissioner of Motor Vehicles,” wherein shall appear the seating capacity of cars to be used and the routes and ⁶¹⁰ schedules on which to be run during the ensuing- year; and then follows the rate upon which the annual fees to be paid are computed. It is then provided by section 253 that “the license, or registration fees charges under this sub-title shall be on the basis of the entire year, but may be issued on or after the first day of July in any year for the remainder of the year, expiring on the thirty-first day of December, in which event one-half the yearly fee shall be paid.

No portion of the license or registration fee paid as aforesaid will be refunded for any part of the year during which said license is not used.” The appellant admits in its brief that it changed its routes and diverted its busses without obtaining the approval of the Public Service Commission, although there is a provision in section 253 of article 56 that in case of a change of route during any year for which a certificate has been issued “a proper readjustment of charge shall be made.” The petition does not state when the demand on the Motor Vehicle Commissioner was made, but the petition was not filed nntil in February, 1927, after the expiration of the license year. Nor is there an allegation of any refusal of the Public Service Commission to issue a permit, nor of the Motor Vehicle Commissioner to make a readjustment of charges on account of the changes of routes. So far as the petition discloses, the petitioner stood by and after the year had passed found that it had not used $1,206.57 of its license fees, and then, under a claim of a direct burden upon interstate commerce, asks the court to compel the Motor Vehicle Commissioner to refund the unearned balance. It is well settled that the writ of mandamus is the proper remedy to compel a public officer to perform a ministerial duty, but not to compel the performance of a duty wherein the officer must exercise his discretion.

Foote v. Harrington, 129 Md. 123 . It is also' settled that suits, not maintainable Tinder the Eleventh Amendment to the Constitution of the United States against the government, cannot be enforced circuitously against an executive officer of the state. Reeside v. Walker, 11 Howard, 272 ; Hagood v. Southern, 117 U. S. ⁶¹¹ 52; Smith v. Reeves, 178 U. S. 436 ; note 44 L. R. A. (R. S.) 189; 5 Ann. Cas. 295.

The instant case is clearly an effort to