60 Md. 263 | Md. | 1883
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
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
2nd. In oue of the replications it is averred that the defendant by the Act of Virginia, of March 6th, 1841, granting it the right of way through that State, was required to establish a depot at the Chesapeake and Ohio Canal Basin, in Cumberland, for the purpose of accommodating and facilitating the transfer of passengers and
How assuming all this to be true, it does not follow that the defendant, by making this agreement with the Canal Company in 1851, rendered itself amenable to the provisions and subject to the penalties provided in the Act of 1874, or that it was the design of this Act, to enforce compliance on the part of the defendant with that agreement, or to provide penalties for a failure to observe it. Ho such purpose is manifest upon the lace of the Act, even if the extraordinary assumption should be made, that the Legislature would have had the power to prescribe such penalties. If this agreement has been violated by the defendant and the plaintiff has a right of action therefor, it can assert it in the proper form, but clearly it cannot by reason of any breach of that contract, recover from the defendant the penalties prescribed by the Act of 1874, nor can the defendant be held, by having entered into this agreement of 1851, to have accepted by anticipation the Act of 1874, as an amendment to its charter. The present suit is not brought upon or for a breach of that agreement, but soleltj for the penalties imposed by this statute, and the action must .stand or fall as the plaintiff may or may not make out a case entitling it to recover these penalties, and, in our opinion, it is perfectly clear that the Virginia Act of" 1847, and this agreement of 1851, cannot be invoked as lending any force or effect whatever to the plaintiff's case, as set out in its declaration.
From these views, and without noticing the other defences set up by the pleas, it follows that this action cannot be maintained, and the judgment below must be affirmed.
Judgment affirmed,.