to all classes of property holders, cannot be permitted to stand in the way of public improvements, and especially in the path of facilities for transportation, that the doctrine of eminent domain has been able to maintain its place in the law. The evidence is conclusive, and, indeed, undisputed, that the cost of constructing a line outside of the prescribed area would be double that of the proposed line, or about $18,000,000, and that this cost would be prohibitive.

All crossings of public or private roads will be overhead or underneath, as testified to by Mr. Jenkins, the locating engineer of the line. The evidence is clear that the territory traversed by this line is without any railroad facilities east or west; that it will develop and build up all this territory, and will afford the only practicable connection of the Baltimore & Ohio Railroad with the Maryland & Pennsylvania Railroad, with which there is now no connection, and that it will relieve the congestion of the tunnels in the city which are now taxed beyond their capacity. The anticipated diversion of commerce from the city of Baltimore does not appear to rest upon any substantial foundation. If there were such, the chamber of commerce of that city should be prompt to discover and proclaim it, but in the last annual report of the president and directors of that body made in January, 1907, it is declared that "the movement of merchandise in which there could be no local interest has been the cause of serious loss and detriment to local merchants,” and that the business of the city "has been greatly hampered by local tracks and facilities being used to handle freight traffic from points beyond. Therefore the wisdom of the speedy arrangement by which all foreign traffic can be diverted, and our insufficient facilities relieved, is so apparent that there should be but one opinion upon the subject." A careful consideration of all the testimony has convinced us that there is no such suburban development along the line of the proposed road as is claimed in the plaintiff's bill and in the argument of his counsel, and which is made the legal basis of the legislation upon which the plaintiff relies to defeat the construction of the road.

The defendant contends that the act of 1906 is invalid because it impairs the obligation of the contract embodied in the charter of the Baltimore & Ohio Railroad. This argument is based upon the fact, admitted by the plaintiff, that the charter of the Baltimore & Ohio Railroad is irrepealable. It is also based upon the assumption (which we have herein decided to be correct) that the railroad, under its charter, by a proper construction thereof, has the right to build this cut-off as a lateral road. Quoting now from the brief of the appellee: "Assuming these two things, the argument of the railroad company is that it can build this lateral road wherever it pleases, and any interference with the building of it, wherever it may

please so to place it, is an impairment of the obligation of the contract contained in its charter. The appellee, on the contrary, main. tains, also upon the assumptions already made, that this is not any interference with the essential right of the railroad company to build a lateral road, if they have any such right under their charter, but is simply a regulation of that right, which it is entirely competent to make under its powers." The question, therefore, which we have to decide is whether the act of 1906 is such a regulation of the defendant's charter right as, under all the circumstances of this case, brings us within the police power of the state.

Judge Cooley, in his work on Constitutional Limitations (6th Ed.) p. 710, says: "The limit to the exercise of the police power in these cases [the impairment of the obligation of contracts] must be this: The regulations must have reference to the comfort, safety, or welfare of society, they must not be in conflict with any of the provisions of the charter, and they must not, under pretense of regulation, take from the corporation any of the essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise." In Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 151, 62 Am. Dec. 625, a leading and much quoted case, Judge Redfield said: "All the cases agree that the indispensable franchises of a corporation cannot be destroyed or essentially modified. But, when it is attempted upon this basis to deny the power of regulating the internal police of the railroads and their mode of transacting their general business, so far as it intends unreasonably to infringe the rights or interest of others, it is putting the whole subject of railway control quite above the legislation of the country." With this careful and wellconsidered language, both as to the main proposition and the qualification, we fully agree. The general proposition is also well understood that "the constitutional prohibition upon state laws impairing the obligation of contracts does not restrict the power of the state to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such contracts." New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 672, 6 Sup. Ct. 252, 29 L. Ed. 516. But this general proposition is not universal in its application, and has its own well-recognized exceptions. The first and a fundamental exception, in cases Involving corporate rights conferred by a charter, is that stated by Judge Cooley, supra, that a police regulation "must not be an amendment of the charter in curtailment of the corporate franchise."

In the case before us the original charter gave the defendant two distinct corporate franchises of equal dignity and rank, both conferred in the same section and in substantially the same language; the first being the

right to construct and maintain a railroad from the city of Baltimore to some suitable points on the Ohio river, and the second to make, or cause to be made, lateral railroads, in any direction whatsoever, in connection with the said railroad from the city of Baltimore to the Ohio river. The only restric tion upon the route of the main road was that the eastern terminus should be at the city of Baltimore, and the western terminus at some point on the Ohio river. As to the lateral roads, there was absolutely no restriction whatever. As to both these essential rights and privileges the faith of the state is pledged by the act of 1826, and as Judge Redfield has said in Thorpe v. Rutland & Burlington R. R. Co., supra: "All the cases agree that they cannot be destroyed or essentially modified." The Legislature could have said in the charter of 1826, "Provided that no such lateral road shall be built" within the limits of the territory defined in the act of 1906, or any other territory from which it might have been thought proper to exclude the defendant. But it made no such exclusion, and reserved no future right to make such. The act of 1906, in so far as it is sought to be applied to the Baltimore & Ohio Railroad, is as substantially an amendment of the charter in curtailment of its corporate franchise, as if its title were "An act to repeal section 14 of chapter 123 of the Acts of 1826, and to re-enact the same with amendments," and as if the body of such act had repealed and re-enacted section 14, with a proviso excluding the defendant from the territory described in the act. Such legislation, cast in the form of an amendment, would be void, and is none the less void because denominated a police regulation. The third section of that act repeals all laws and parts of laws inconsistent with the provisions of that act, thus indicating its purpose to amend the charter of 1826 in so far as it may be in conflict with that act. But, apart from that consideration, we are of opinion that this act cannot be availed of to defeat the proposed road.

In Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169, it was contended upon the supposed authority of Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, that the Legislature is the exclusive judge of the propriety of police regulation when the matter is within the scope of its power, but the court there said: "The observations of Mr. Chief Justice Waite in that connection had reference to the facts of the particular case, and were certainly not intended to declare the right of either the Legislature or a city council to arbitrarily deprive the citizen of rights protected by the Constitution under the guise of exercising the police powers reserved to the state. It may be admitted that every intendment is to be made in favor of the lawfulness of regulations to promote the public health and safety, and that it is

not the province of the courts, except in clear cases, to interfere with the exercise of the power for the protection of local rights and welfare of the people in the community. But, notwithstanding this general rule of the law, it is now thoroughly well settled by decisions of this court that municipal bylaws and ordinances, and even legislative enactments, undertaking to regulate usefu! business enterprises, are subject to investigation in the courts with a view to determining whether the law or ordinances are a lawful exercise of the police power, or whether under the guise of enforcing police regulations there has been an unwarranted and arbitrary interference with the constitutional right to carry on a lawful business, to make contracts, or to use and enjoy property." So in Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385, the Supreme Court said: "To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such reference: and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not under the guise of protecting the public interests arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts." Once more, in Lochner V. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L Ed. 937, the court said: "It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are in reality passed from other motives. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law. The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must be determined from the natural effect of such statutes, and not from their proclaimed purpose."

The evidence in this case not only wholly fails to show that the interests of the public generally require the enactment of this law, but it satisfies us that it has been enacted in the interest of a particular class, viz., the property owners nearest the line of the road, whose property will undoubtedly be rendered less desirable by the construction and operation of the road. If the public welfare, and the general advancement and prosperity of the territory described in the act were really

at stake, it would have been an easy matter to bring a cloud of witnesses in proof of this fact, in addition to the plaintiff himself and the two gentlemen whom he produced. It is not denied that there is a limit to the valid exercise of the police power by the state. If there were not such a limit, the claim of the power "would become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint"; and we are forced to the conclusion that "the limit has been reached and passed in this case."

The counsel for the appellee lay much stress upon the case of C., B. & Q. R. Co. v. Drainage Commissioners, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, in which the court said that the police power embraced regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety. In that case a public corporation, charged by law with the duty of causing a large body of swamp lands to be drained and made capable of cultivation, adopted a plan which required the enlarging and deepening of the channel of a natural water course running through the district, the best and only practicable mode of effecting the drainage. This plan also required the removal of the foundations of a bridge erected by the defendant railway over this water course, which the railway company refused to do, or permit to be done, until it was paid such a sum as would compensate it for the cost of removal and of constructing a new bridge over the widened and deepened stream. It was held by the court that the drainage of so large a body of lands "so as to make them fit for human habitation is a public purpose, to accomplish which the state may, by appropriate agencies, exert the general powers it possesses for the common good. The character of that law being as it was a general law operating upon all swamp lands throughout the state, and the subject upon which it operated, not, as here, the exclusion of transportation facilities from a large region, but merely the question of who should bear the cost of removing and restoring the bridge, are so widely different from the one before us as to deprive the case of any real application to the present. The great and unusual privilege enjoyed by the Baltimore & Ohio Railroad in the exemptions from taxation secured by its charter under our decisions may have been unwisely granted and certainly should not be extended by construction, but the fact that they have been unwisely granted cannot justify courts of justice in denying the exercise of a right clearly conferred and beyond the power of withdrawal by repeal.

For the reasons stated, the decree appealed from must be reversed.

Decree reversed, injunction dissolved, and bill dismissed, with costs to the appellant above and below.

(106 Md. 197)

ADAMS v. COMMISSIONERS OF SOMERSET COUNTY.

(Court of Appeals of Maryland. May 17, 1907.) BRIDGES-INJURIES FROM DEFECTS-ACTIONINSTRUCTIONS.

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In an action for injuries caused by a defective bridge, an instruction that, before the jury "can find a verdict for the plaintiff, they must find that the defendant knew, or by ordinary care could have known, the bad condition of the bridge, in time to repair the same before the accident, and if the * defendant or its agent, the road supervisor, could not by the use of reasonable or ordinary care and diligence have discovered the defect in said bridge, then their verdict should be for the defendant," was erroneous, as tending to convey the idea that actual notice of the defect by the defendant was necessary to render it liable, and as ignoring evidence of the road supervisor's knowledge of the dangerous condition of the bridge.

Appeal from Circuit Court, Dorchester County; Chas. F. Holland and Henry Lloyd, Judges.

Action by Samuel J. Adams against the county commissioners of Somerset county. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. James E. Ellegood, for appellant. Joshua Miles, for appellee.

BURKE, J. This case was instituted in the circuit court for Somerset county by the appellant against the county commissioners of that county, and was tried in the circuit court for Dorchester county, to which it had been removed. The trial resulted in a verdict and judgment for the defendant, and the plaintiff has brought this appeal.

The suit was brought for personal injuries to the plaintiff, and for injuries to his horse, wagon, and harness alleged to have been caused by a defect in a bridge on one of the public roads of Somerset county. The declaration contained three counts. The first count described the personal injuries which the plaintiff suffered and the pecuniary losses he thereby sustained, and avers that his injuries and losses were due to the negligence of the defendant in permitting a county road and bridge, within said county, leading from Hall's corner to Marion post office, in Somerset county, at a point near the dwelling house of Edward Hall, to be and remain out of repair, and in an unsafe and dangerous condition. The second count relates to injuries to his horse, and the third to damage. to his wagon and harness. The same act of negligence, as charged in the first count, is averred in the second and third counts. In' each count it is alleged that the defect in the bridge was known to the defendant prior to the accident which caused the injuries and damage. This bridge was a very small affair. It was located on the county road described in the declaration, and was constructed over a ditch about 6 feet wide. Timbers, de

scribed in the evidence as "sleepers," were placed across the ditch, and covered by oak slabs about 17 feet long, nailed to the sleepers. About a week or ten days before the accident, the ditch had been cleaned, and in order to do this work three of the planks had been taken up, and replaced after the cleaning had been done; but the boards had not been nailed to the sleepers. The surface of the boards appeared to be sound, and showed no decay, or defect of any kind. The workman who took up the planks to clean the ditch saw no defect in the boards, and, so far as he could see, the boards of the bridge were sound, and they were replaced by him after the ditch was finished. For the week previous, and up to the morning of the accident, the hauling over the bridge was very heavy. On the morning of the accident, Mr. Isaac H. Whittington, the road supervisor, had passed over the bridge. He was walking, and had charge of a team of two mules with a load of wood. He stopped and examined the bridge, and saw that a plank had been pushed out of its place, so that its end was not even with the other boards, and he pushed it back in its place, so as to make the ends more even. He testified that he saw nothing further the matter with the bridge, and that the boards seemed sound, and not decayed, and showed no break. This evidence as to the apparent soundness of the bridge was corroborated by other witnesses. The evidence shows that on the day of the accident, and for a number of days prior thereto, heavily laden wagons had passed over the bridge, and no defect therein was noticed by those in charge of the teams. Four witnesses on behalf of the plaintiff testified that, a short time before the accident, while driving across the bridge, one of its planks showed weakness, but that it showed no defect on the outward surface. It is clear from all the evidence that the defect in the bridge was a latent, or hidden, defect, not readily or easily discoverable without a careful examination, or without the existence of some special circumstance calling attention to it. The plaintiff offered evidence tending to prove the following facts: That on the morning of September 15, 1905, he was riding in his wagon from his home to Marion Station, in Somerset county, over the public road upon which the bridge spoken of is located, and while driving over the bridge his horse stumbled and fell, and he was thereby thrown from his wagon; that his head struck the ground, rendering him almost senseless; that when he recovered himself he was standing in the road; that his horse's right leg was fastened in the bridge; that the shafts and other parts of his wagon were broken; that he repaired the wagon temporarily, and then drove to Marion Station, and afterwards to his home. He further offered evidence tending to show that he was seriously and per manently injured; that he suffered intense pain, incurred expense, and is incapable to

perform his accustomed work; and that his injuries may result in paralysis and death. He testified that in riding over the bridge he had no knowledge of any weak or defective plank in it, and that there was nothing on the surface of the bridge to indicate that there was a weak or defective plank therein. After the accident, it was found that one of the boards was broken, and was shivered on the underneath side, although this defect was not visible on the surface; that this shiver weakened the plank, but the board was otherwise sound. When the plaintiff's horse stepped upon this weak spot, the board split lengthwise, and the horse's foot was caught, and in this way the accident occurred.

Because of the concealed character of the defect in the bridge, the testimony of Lee Carver and Isaac H. Whittington, the road supervisor, who had charge of this road and bridge, becomes most important. Lee Carver testified that he had driven over this bridge nearly every evening during the week previous of August 13, or August 20, 1905, and that either on August 13th or 20th, in driving over the bridge, he discovered a defective plank by noticing that it bent down when his horse stepped on it, and that he passed over it without difficulty, or injury, but got out of his carriage and examined it. He found that the weak plank was a board showing no defect on the upward surface, not decayed at all, nor broken, but shivered on the underneath side, and that he pushed the plank so as to make the shivered or weak place come over the sleeper, which made it project beyond the other planks at one end and short at the other. That during the week following the 13th or 20th of August he saw Mr. Whittington, the road supervisor in charge of this road and bridge, and told him that there was a bridge near Will Hall's place which had a weak or defective board in it, and that he pushed the board as described above, and that Mr. Whittington said that he would attend to it. On cross-examination this witness said that he did not know whether he told the supervisor that there was a bridge, or that the bridge near Will Hall's residence was defective, and further testified that there was a big bridge nearer Will Hall's residence than the bridge where the accident occurred; that this big bridge was about 150 yards above the bridge where the accident occurred, but that he did not tell the supervisor that it was the big bridge near Will Hall's residence, but did tell him that the bridge had a plank in it short at one end. Mr. Whittington testified that Lee Carver told him that the bridge with a defective or weak plank in it was the big bridge down by Will Hall's, and that he went and examined the big bridge, and had it repaired, although he found little, if anything, the matter with it. He had, however, previously testified, as we have seen, that, in passing over the bridge where the accident occurred on the morning the plaintiff was injured, he saw that there

was a plank pushed out of its place, so that its end was not even with the other boards.

The record presents three bills of exceptions, two of which relate to questions of evidence, and one to the rulings of the court on the prayers. As the main question in the case arises under the last exception, that will be first considered. The plaintiff offered four prayers, and the defendant three. The court granted all the prayers offered on each side. To the granting of the defendant's prayers, the plaintiff excepted; but the defendant took no exception to the granting of the plaintiff's prayers. The purpose of instruction is to inform the jury clearly and pointedly as to the law of the case, so as to leave no reasonable ground of misapprehension or mistake. They should not be equivocal, or ignore evidence tending to prove a fact having an important bearing upon the law of the case, although the evidence as to that fact may be contradicted by the testimony of other witnesses. The principles of law by which the responsibility of county commissioners for accidents occurring on public roads and bridges, in cases where that responsibility has not been modified, or changed by local statutes, are well settled by decisions of this court, and are well understood. In the case of County Commissioners of Baltimore County v. Hattie E. Wilson, 97 Md. 207, 54 Atl. 71, 56 Atl. 596, Judge Schmucker, who delivered the opinion of the court, after quoting sections 1 and 2 of article 25 of the Code of Public General Laws, said: "It has been repeatedly held by this court that these sections of the general law not only conferred the power, but also imposed the duty, upon the county commissioners to keep the public roads in a safe condition; and that, as the law provided them with proper agents for the discharge of these duties and the power to levy the requisite taxes for the repair of the roads, it made them liable for injuries resulting from the nonrepair of such roads, or the existence of dangerous obstructions upon them." In the case of County Commissioners of Anne Arundel County v. Duvall, 54 Md. 355, 39 Am. Rep. 393, the court referred to the cases of Duckett, 20 Md. 468, 83 Am. Rep. 557, Gibson, 36 Md. 229, and Baker, 44 Md. 1, and said: "In all of those cases the injuries for which the county commissioners were held liable resulted directly from the bad condition of the public roads or bridges. The county commissioners are specially charged by law with the duty of keeping these in good repair and safe for the travel of the public. Tyson's Case, 28 Md. 510; Walter's Case, 35 Md. 394; and cases above cited. If they fail to do so, and injury results, they are liable in an action at law, not by virtue of any liability at common law, but because they are made so by statute. They are not permitted to excuse themselves by the fact that the road supervisor is also required by law to keep the public road in repair, and may be made

liable in a penalty or in damages for a failure to do so. Their obligation is a paramount and pre-existing one, and cannot be discharged by the failure of another to do that which they (the commissioners) are required by law to do."

The instructions granted at the instance of the defendant will now be examined in the light of these principles. The defendant's first prayer, after instructing the jury that the county commissioners are not insurers against accidents occurring on the public roads and bridges, nor are they required by law to make and keep them in perfect condition and repair, but only that they should use reasonable care and diligence in the exercise of the powers vested in them in regards to the public roads and bridges, asserted the proposition that, even if the jury should find that the bridge was out of repair, and not in perfect condition, "yet, before they can find a verdict for the plaintiff, they must find that the defendant knew, or by ordinary care could have known, the bad condition of the bridge, in time to repair the same before the accident; and if the jury find from the evidence that the defendant, or its agent, the road supervisor, could not, by the use of reasonable or ordinary care and diligence in the exercise of the powers vested in them, have discovered the defect in said bridge, then their verdict must be for the defendant." There was not a particle of evidence in the case that the county commissioners had any actual or personal knowledge of the defect in the bridge, and in view of the character of the defect it might well have been argued that neither the commissioners, nor the road supervisor, by the exercise of ordinary care, could have known of the unsafe condition of the bridge. The plaintiff had alleged that the defendant knew, prior to the accident, that the bridge was unsafe; but, in order to charge the defendant with knowledge, it was not necessary for him to show actual or personal knowledge by the commissioners. Notice communicated to, or knowledge acquired by, Mr. Whittington, the road supervisor, as to the unsafe condition of the bridge, was notice to the commissioners, and gratified the allegations as to the knowledge on their part set out in the narr. The plaintiff offered evidence tending to prove that prior to the accident Mr. Whittington had this knowledge, although he denied that evidence, but that was a question for the jury. This prayer, no doubt, announced a sound general proposition of law; but, as applied to the facts of this case, it is perfectly obvious that it was most misleading and objectionable. It was vague, indefinite, and equivocal as to the question of notice, and ignored all reference to the testimony as to the knowledge of the road supervisor of the dangerous condition of the bridge, which was, perhaps, the crucial and controlling question in the case. As framed, the jury might have readily concluded that, because the commissioners did