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to all classes of property holders, cannot | please so to place it, is an impairment of the be permitted to stand in the way of public obligation of the contract contained in its inprovements, and especially in the path of charter. The appellee, on the contrary, main. facilities for transportation, that the doc tains, also upon the assumptions already trine of eminent domain has been able to made, that this is not any interference with maintain its place in the law. The evidence the essential right of the railroad company is conclusive, and, indeed, undisputed, that to build a lateral road, if they have any such the cost of constructing a line outside of right under their charter, but is simply a reg. the prescribed area would be double that ulation of that right, which it is entirely of the proposed line, or about $18,000,000, competent to make under its powers." The and that this cost would be prohibitive. question, therefore, which we have to decide
All crossings of public or private roads is whether the act of 1906 is such a regulawill be overhead or underneath, as testified tion of the defendant's charter right as, unto by Mr. Jenkins, the locating engineer of der all the circumstances of this case, brings the line. The evidence is clear that the ter us within the police power of the state. ritory traversed by this line is without any Judge Cooley, in his work on Constitutional railroad facilities east or west; that it will Limitations (6th Ed.) p. 710, says: "The limdevelop and build up all this territory, and it to the exercise of the police power in these will afford the only practicable connection cases (the impairment of the obligation of of the Raltimore & Ohio Railroad with the contracts] must be this: The regulations Maryland & Pennsylvania Railroad, with must bave reference to the comfort, safety, or which there is now no connection, and that it welfare of society, they must not be in conwill relieve the congestion of the tunnels in flict with any of the provisions of the charthe city which are now taxed beyond their ter, and they must not, under pretense or capacity. The anticipated diversion of com regulation, take from the corporation any of merce from the city of Baltimore does not the essential rights and privileges which the appear to rest upon any substantial founda charter confers. In short, they must be potion, If there were such, the chamber of lice regulations in fact, and not amendments commerce of that city should be prompt to of the charter in curtailment of the corporate discover and proclaim it, but in the last an franchise." In Thorpe v. Rutland & Burling. nual report of the president and directors of ton R. R. Co., 27 Vt. 151, 62 Am. Dec. 625, a that body made in January, 1907, it is de leading and much quoted case, Judge Redclared that “the movement of merchandise in field said: “All the cases agree that the inwhich there could be no local interest has dispensable franchises of a corporation canbeen the cause of serious loss and detriment not be destroyed or essentially modified. But, to local merchants," and that the business of when it is attempted upon this basis to deny the city “has been greatly bampered by local the power of regulating the internal police tracks and facilities being used to handle of the railroads and their mode of transacting freight traffic from points beyond. Therefore their general business, so far as it intends the wisdom of the speedy arrangement by unreasonably to infringe the rights or interwhich all foreign traffic can be diverted, and est of others, it is putting the whole subject our insufficient facilities relieved, is so ap- of railway control quite above the legislation parent that there should be but one opinion of the country." With this careful and wellupon the subject.” A careful consideration considered language, both as to the main of all the testimony has convinced us that proposition and the qualification, we fully there is no such suburban development along agree. The general proposition is also well the line of the proposed road as is claimed in understood that “the constitutional prohibithe plaintiff's bill and in the argument of his tion upon state laws impairing the obligation coupsel, and which is made the legal basis of of contracts does not restrict the power of the legislation upon which the plaintiff relies the state to protect the public health, the pubto defeat the construction of the road.
lic morals, or the public safety, as the one The defendant contends that the act of or the other may be involved in the execution 1906 is invalid because it impairs the obliga of such contracts." New Orleans Gas Co. v. tion of the contract embodied in the charter Louisiana Light Co., 115 U. S. 672, 6 Sup. Ct. of the Baltimore & Ohio Railroad. This 252, 29 L. Ed. 516. But this general propargument is based upon the fact, admitted osition is not universal in its application, and by the plaintiff, that the charter of the Bal. has its own well-recognized exceptions. The timore & Ohio Railroad is irrepealable. It is first and a fundamental exception, in cases also based upon the assumption (which we involving corporate rights conferred by a have herein decided to be correct) that the charter, is that stated by Judge Cooley, supra, railroad, under its charter, by a proper con that a police regulation "must not be an struction thereof, has the right to build this amendment of the charter in curtailment of cut-off as a lateral road. Quoting now from the corporate franchise.” the brief of the appellee: "Assuming these In the case before us the original charter two things, the argument of the railroad gave the defendant two distinct corporate company is that it can build this lateral road franchises of equal dignity and rank, both wherever it pleases, and any interference conferred in the same section and in substanwith the building of it, wherever it may tially the same language; the first being the
right to construct and maintain a railroad not the province of the courts, except in from the city of Baltimore to some suitable clear cases, to interfere with the exercise of points on the Ohio river, and the second to the power for the protection of local rights make, or cause to be made, lateral railroads, and welfare of the people in the community. in any direction whatsoever, in connection But, notwithstanding this general rule of with the said railroad from the city of Bal the law, it is now thoroughly well settled by timore to the Ohio river. The only restric decisions of this court that municipal bytion upon the route of the main road was laws and ordinances, and even legislative that the eastern terminus should be at the enactments, undertaking to regulate useful city of Baltimore, and the western terminus business enterprises, are subject to investiat some point on the Ohio river. As to the gation in the courts with a view to determin. lateral roads, there was absolutely no restric ing whether the law or ordinances are a law. tion whatever. As to both these essential ful exercise of the police power, or whether rights and privileges the faith of the state is under the guise of enforcing police regulapledged by the act of 1826, and as Judge Red tions there has been an unwarranted and field has said in Thorpe v. Rutland & Bur arbitrary interference with the constitutional lington R. R. Co., supra : “All the cases agree right to carry on a lawful business, to make that they cannot be destroyed or essen contracts, or to use and enjoy property.” So tially modified.” The Legislature could have in Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. said in the charter of 1826, “Provided that 499, 38 L. Ed. 385, the Supreme Court said: no such lateral road shall be built" within "To justify the state in thus interposing its the limits of the territory defined in the act authority in behalf of the public, it must of 1906, or any other territory from which appear, first, that the interests of the pubit might have been thought proper to exclude lic generally, as distinguished from those of the defendant. But it made no such exclu a particular class, require such reference: sion, and reserved no future right to make and, second, that the means are reasonably buch. The act of 1906, in so far as it is necessary for the accomplishment of the sought to be applied to the Baltimore & Ohio purpose, and not unduly oppressive upon inRailroad, is as substantially an amendment dividuals. The Legislature may not under of the charter in curtailment of its corporate the guise of protecting the public interests franchise, as if its title were “An act to repeal arbitrarily interfere with private business, section 14 of chapter 123 of the Acts of 1826, or impose unusual and unnecessary restricand to re-enact the same with amendments," tions upon lawful occupations. In other and as if the body of such act had repealed words, its determination as to what is a and re-enacted section 14, with a proviso ex proper exercise of its police powers not cluding the defendant from the territory de final or conclusive, but is subject to the superscribed in the act. Such legislation, cast in vision of the courts." Once more, in Lochner the form of an amendment, would be void, v. New York, 198 U. g. 45, 25 Sup. Ct. 539, 49 L and is none the less void because denominat Ed. 937, the court said: “It is impossible for ed a police regulation. The third section of us to shut our eyes to the fact that many that act repeals all laws and parts of laws of the laws of this character, while passed inconsistent with the provisions of that act, under what is claimed to be the police power thus indicating its purpose to amend the char for the purpose of protecting the public ter of 1826 in so far as it may be in conflict health or welfare, are in reality passed from with that act. But, apart from that con other motives. We are justified in saying sideration, we are of opinion that this act So when, from the character of the law and cannot be availed of to defeat the proposed the subject upon which it legislates, it is aproad.
parent that the public health or welfare In Dobbins v. Los Angeles, 195 U. S. 223, 25 bears but the most remote relation to the Sup. Ct. 18, 49 L. Ed. 169, it was contended law. The purpose of a statute must be deupon the supposed authority of Munn v. Il termined from the natural and legal effect of linois, 94 U, S. 113, 24 L. Ed. 77, that the the language employed; and whether it is or Legislature is the exclusive judge of the is not repugnant to the Constitution of the propriety of police regulation when the mat United States must be determined from the ter is within the scope of its power, but the natural effect of such statutes, and not from court there said: “The observations of Mr. their proclaimed purpose." Chief Justice Waite in that connection had The evidence in this case not only wholly reference to the facts of the particular case, fails to show that the interests of the public and were certainly not intended to declare generally require the enactment of this law, the right of either the Legislature or a city but it satisfies us that it has been enacted in council to arbitrarily deprive the citizen of the interest of a particular class, viz., the rights protected by the Constitution under property owners nearest the line of the road, the guise of exercising the police powers whose property will undoubtedly be rendered reserved to the state. It may be admitted less desirable by the construction and operathat every intendment is to be made in favor tion of the road. If the public welfare, and of the lawfulness of regulations to promote the general advancement and prosperity of the public health and safety, and that it is the territory described in the act were really
at stake, it would have been an easy matter
(106 Md. 197) to bring a cloud of witnesses in proof of this ADAMS V. COMMISSIONERS OF SOMERfact, in addition to the plaintiff himself and
SET COUNTY. the two gentlemen whom he produced. It (Court of Appeals of Maryland. May 17, 1907.) is not denied that there is a limit to the valid BRIDGES-INJURIES FROM DEFECTS-ACTIONexercise of the police power by the state. If INSTRUCTIONS. there were not such a limit, the claim of the
In an action for injuries caused by a de
fective bridge, an instruction that, before the power "would become another and delusive
jury "can find a verdict for the plaintiff, they name for the supreme sovereignty of the must find that the defendant knew, or by ordistate to be exercised free from constitutional nary care could have known, the bad condition restraint"; and we are forced to the conclu of the bridge, in time to repair the same before
the accident, and if the
defendant or sion that "the limit has been reached and
its agent, the road supervisor, could not by the passed in this case."
use of reasonable or ordinary care and diligence The counsel for the appellee lay much
have discovered the defect in said stress upon the case of C., B. & Q. R. Co. v.
bridge, then their verdict should be for the de
fendant," was erroneous, as tending to convey Drainage Commissioners, 200 U. S. 561, 26 the idea that actual notice of the defect by the Sup. Ct. 341, 50 L. Ed. 596, in which the defendant was necessary to render it liable, and court said that the police power embraced
as ignoring evidence of the road supervisor's
knowledge of the dangerous condition of the regulations designed to promote the public bridge. convenience or the general prosperity, as well as regulations designed to promote the pub
Appeal from Circuit Court, Dorchester lic health, the public morals or the public County; Chas. F. Holland and Henry Lloyd, safety. In that case a public corporation, Judges. charged by law with the duty of causing a
Action by Samuel J. Adams against the large body of swamp lands to be drained and
county commissioners of Somerset county. made capable of cultivation, adopted a plan
From a judgment for defendant, plaintiff apwhich required the enlarging and deepening peals. Reversed and remanded. of the channel of a natural water course
Argued before BRISCOE, BOYD, PEARCE, running through the district, the best and SCHMUCKER, BURKE, and ROGERS, JJ. only practicable mode of effecting the drain James E. Ellegood, for appellantJoshua age. This plan also required the removal of Miles, for appellee. the foundations of a bridge erected by the de fendant railway over this water course, BURKE, J. This case was instituted in which the railway company refused to do, the circuit court for Somerset county by the or permit to be done, until it was paid such appellant against the county commissioners a sum as would compensate it for the cost of that county, and was tried in the circuit of removal and of constructing a new bridge court for Dorchester county, to which it had over the widened and deepened stream. It been removed. The trial resulted in a verwas held by the court that the drainage of dict and judgment for the defendant, and so large a body of lands "so as to make them the plaintiff has brought this appeal. fit for human habitation is a public purpose, The suit was brought for personal injuries to accomplish which the state may, by ap to the plaintiff, and for injuries to his horse, propriate agencies, exert the general powers wagon, and harness alleged to have been it possesses for the common good. The char
caused by a defect in a bridge on one of the acter of that law being as it was a general public roads of Somerset county. The declalaw operating upon all swamp lands through ration contained three counts. The first out the state, and the subject upon which it count described the personal injuries which operated, not, as here, the exclusion of trans the plaintiff suffered and the pecuniary losses portation facilities from a large region, but he thereby sustained, and avers that his inmerely the question of who should bear the jur and losses were due to the gligence cost of removing and restoring the bridge, of the defendant in permitting a county road are so widely different from the one before and bridge, within said county, leading from us as to deprive the case of any real appli Hall's corner to Marion post office, in Somcation to the present. The great and unusual erset county, at a point near the dwelling privilege enjoyed by the Baltimore & Ohio house of Edward Hall, to be and remain out Railroad in the exemptions from taxation se of repair, and in an unsafe and dangerous cured by its charter under our decisions may condition, The second count relates to inhave been unwisely granted and certainly juries to his horse, and the third to damage. should not be extended by construction, but to his wagon and harness. The same act the fact that they have been unwisely grant of negligence, as charged in the first count, ed cannot justify courts of justice in denying is averred in the second and third counts. In the exereise of a right clearly conferred and each count it is alleged that the defect in the beyond the power of withdrawal by repeal. bridge was known to the defendant prior to
For the reasons stated, the decree appealed the accident which caused the injuries and from must be reversed.
damage. This bridge was a very small affair. Decree reversed, injunction dissolved, and It was located on the county road described bill dismissed, with costs to the appellant in the declaration, and was constructed over above and below.
a ditch . about. 6 feet wide. Timbers, de
scribed in the evidence as "sleepers,” were perform his accustomed work; and that his placed across the ditch, and covered by oak injuries may result in paralysis and death. slabs about 17 feet long, nailed to the sleep He testified that in riding over the bridge he
About a week or ten days before the acci had no knowledge of any weak or defective dent, the ditch had been cleaned, and in order plank in it, and that there was nothing on to do this work three of the planks had the surface of the bridge to indicate that been taken up, and replaced after the clean there was a weak or defective plank therein. ing had been done; but the boards had not After the accident, it was found that one of been nailed to the sleepers. The surface of the boards was broken, and was shivered on the boards appeared to be sound, and showed the underneath side, although this defect was no decay, or defect of any kind. The work. not visible on the surface; that this shiver man who took up the planks to clean the weakened the plank, but the board was otherditch saw no defect in the boards, and, so far wise sound. When the plaintiff's horse stepas he could see, the boards of the bridge were ped upon this weak spot, the board split sound, and they were replaced by him after lengthwise, and the horse's foot was caught, the ditch was finished. For the week previous, and in this way the accident occurred. and up to the morning of the accident, the Because of the concealed character of the hauling over the bridge was very heavy. On defect in the bridge, the testimony of Lee the morning of the accident, Mr. Isaac H. Carver and Isaac H. Whittington, the road Whittington, the road supervisor, had passed | supervisor, who had charge of this road and over the bridge. He was walking, and had bridge, becomes most important. Lee Carver charge of a team of two mules with a load of testified that he had driven over this bridge wood. He stopped and examined the bridge, 1 nearly every evening during the week previ. and saw that a plank had been pushed out ous of August 13, or August 20, 1905, and of its place, so that its end was not even that either on August 13th or 20th, in driving with the other boards, and he pushed it back over the bridge, he discovered a defective in its place, so as to make the ends more plank by noticing that it bent down when his even. He testified that he saw nothing fur horse stepped on it, and that he passed over ther the matter with the bridge, and that it without difficulty, or injury, but got out of the boards seemed sound, and not decayed, his carriage and examined it. He found that and showed no break. This evidence as to the weak plank was a board showing no dethe apparent soundness of the bridge was fect on the upward surface, not decayed at corroborated by other witnesses. The evl
all, nor broken, but shivered on the underdence shows that on the day of the accident, neath side, and that he pushed the plank so and for a number of days prior thereto, as to make the shivered or weak place come heavily laden wagons had passed over the
over the sleeper, which made it project be bridge, and no defect therein was noticed by
yond the other planks at one end and short those in charge of the teams. Four witness at the other. That during the week following es on behalf of the plaintiff testified that, the 13th or 20th of August he saw Mr. Whita short time before the accident, while driv
tington, the road supervisor in charge of ing across the bridge, one of its planks this road and bridge, and told him that there showed weakness, but that it showed no de
was a bridge near Will Hall's place which fect on the outward surface. It is clear
had a weak or defective board in it, and that from all the evidence that the defect in the he pushed the board as described above, and bridge was a latent, or hidden, defect, not
that Mr. Whittington said that he would at. readily or easily discoverable without a care
tend to it. On cross-examination this witful examination, or without the existence of
ness said that he did not know whether he some special circumstance calling attention told the supervisor that there was a bridge, to it. The plaintiff offered evidence tending or that the bridge near Will Hall's residence to prove the following facts: That on the
was defective, and further testified that there morning of September 15, 1905, he was riding
was a big bridge nearer Will Hall's resiin his wagon from his home to Marion Sta dence than the bridge where the accident oc tion, in Somerset county, over the public road curred; that this big bridge was about 150 upon which the bridge spoken of is located, yards above the bridge where the accident and while driving over the bridge his horse occurred, but that he did not tell the superstumbled and fell, and he was thereby thrown visor that it was the big bridge near Will from his wagon; that his head struck the Hall's residence, but did tell him that the ground, rendering bim almost senseless; that bridge had a plank in it short at one end. when he recovered himself he was standing Mr. Whittington testified that Lee Carver in the road; that his horse's right leg was told him that the bridge with a defective or fastened in the bridge; that the shafts and weak plank in it was the big bridge down by other parts of his wagon were broken; that Will Hall's, and that he went and examined he repaired the wagon temporarily, and then the big bridge, and had it repaired, although drove to Marion Station, and afterwards to he found little, if anything, the matter with his home. He further offered evidence tend it. He had, however, previously testified, as ing to show that he was seriously and per. we have seen, that, in passing over the bridge manently injured; that he suffered intense where the accident occurred on the morning pain, incurred expense, and is incapable to 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 coinmissioners 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 tbe 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 bad 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