tion, and was in no wise interested in the products of such business, and assumed no risk in connection therewith. commerce in the city of Baltimore, to abate any | the profits of the business for its compensaand all personal taxes which may be levied hereafter by authority of the mayor and city council of Baltimore for any of the corporate uses thereof, upon any mechanical tools or implements, or upon any machinery or manufacturing apparatus, owned by such individuals, firm or corporation and actually employed and used in the business of manufacturing articles of commerce in the said city." The object of the ordinance was to encourage by manufacture the production of articles of commerce and to induce individuals, firms, and corporations to engage in the business of manufacturing such articles. Those who drafted and passed this ordinance confined its application to individuals, It is clear from the language employed firms, and corporations actually engaged in that the application for exemption from taxa- the manufacturing business. This was no tion of the property mentioned in the ordi- doubt done to exclude from the benefit of nance must be made by the owner of such the ordinance those that were in some indiproperty, and to entitle him to such exemp-rect or remote way connected with said bustion such owner must be "actually engaged iness, as the appellant in this case. in the business of manufacturing articles of commerce in the city of Baltimore," and further that said mechanical tools and impleents, etc., be actually employed and used in the business of manufacturing said articles of commerce in said city. The application in this case was made by the owner of the property, but at that time it was not actually engaged in the business of manufacturing articles of commerce, and this fact is admitted by it. So long as the appellant was actually engaged in the business of manufacturing articles of commerce, it was entitled to have its mechanical tools and implements, etc., actually employed and used in the business of manufacturing exempted from taxation; but when it ceased to be actually engaged in manufacturing, it was no longer entitled to such exemption. It thereafter derived its revenue a stipulated sum-from the rent received from the plant, tools, and machinery. It did not look to The appellant, although receiving the inducement and encouragement granted by the ordinance, discontinued the business of manufacturing articles of commerce, which was more or less uncertain in its profits and returns, and accepted in lieu thereof, from one willing to embark in said business, with all its risks and uncertainties, a stipulated sum as rent, not only for the mechanical tools, implements, machinery, and manufacturing apparatus, employed in said business, but also the building and premises in which the business was conducted. [2] To hold that the property in this case is exempt from taxation under this ordinance would, in our opinion, not only be enlarging the exemption created by the ordinance, but to so hold would be against the letter as well as the spirit of the ordinance. We will therefore affirm the order of the lower court. Order affirmed, with costs. CONSTABLE, J. The appellant brought this appeal from the action of the Baltimore city court which affirmed the action of the state tax commission of Maryland, which, upon appeal to it, affirmed the assessment of the appeal tax court of Baltimore city upon its refusal to abate taxes from the appellant's machinery, which, as its name implies, is engaged solely in the laundry business. The appellant is one of 12 laundries of Baltimore which are attempting to be relieved from the payment of taxes upon their apparatus by chapter 561 of the Acts of 1916. The Legislature by chapter 32 of the Acts of 1912, now codified under subparagraph (C), subtitle "Abatements to encourage manufactures," of paragraph 28, title "Taxes," of the new charter of Baltimore city, revised edition, 1915, whereby it gave power and authority to the mayor and city council of Baltimore "to provide by general ordinance, whenever it shall seem expedient for the encouragement of the growth and development of manufactures and manufacturing industry in the said city, for the abatement of any or all taxes levied by authority of the said mayor and city council of Baltimore, or by ordinance thereof, for any of the corporate uses thereof, upon any or all personal property, of every description owned by any individual, firm or corporation in said city, and property subject to valuation and taxation therein, including mechanical tools or implements, whether worked by hand or steam or other motive power, machinery, manufacturing apparatus or engines, raw materials on hand, stock in trade, bills receivable, and business credits of every kind, which said personal property shall be actually employed or used in the business of manufacturing in said city: Provided that such abatement shall be extended to all persons, firms and corporations engaged in the branches of manufacturing industry proposed to be benefited by any ordinance passed under the provisions of this paragraph of this section," etc. The mayor and city council, pursuant to this power and authority expressly given to them by the above act, enacted on July 6, the same language of subparagraph (C) of 1912, Ordinance No. 140, which is practically chapter 32 of the Acts of 1912. In 1914, by chapter 324 of the Acts of that year, now codified as section 88 (C) of article a new scheme of taxing laws relating to 23 of Bagby's Code, the Legislature enacted "ordinary business corporations" which authorized the state tax commission of Maryland, when dealing with this type of corporation, to tax clusive of bonds, shares of stock and securities "all personal property of such corporations, exas enumerated in article 81, section 214 of the Code of Public Civil Laws (1912), and property which by law is exempt from taxation, and exclusive of manufacturing plants situated in any city or county in which by law or ordinance manufacturing plants are exempt from county or municipal taxation." By chapter 561 of the Acts of 1916 the Legislature repealed the act of 1912 and rethat act, with the addition, however, that enacted the same in the identical language of in the last paragraph thereof they enacted as follows: "And provided further, that laundry machinery when employed or used in the business of laundering shall be classed as manufacturing within the purposes of this subparagraph." We have already said that the act of 1916 is in the identical language as the act of 1912; so, of course, we find that the act starts with the language, under the head of "Abatements to Encourage Manufactures," "to provide by general ordinance, whenever it shall seem expedient for the encouragement of the growth and development of manufacturies and manufacturing industry in the said city." The mayor and city council have never availed themselves of the power and authority granted under this act as they did under the act of 1912, by the enactment of an ordinance, and thus the Ordinance No. 140 ap proved on July 6, 1912, is the last expression employé", within the meaning of the Maryof the mayor and city council upon the sub-land Workmen's Compensation Act, which ject. We therefore are forced to the opinion excepts "casual employés" from its provithat until the city does enact an ordinance sions. Code, art. 101, § 63, par. 3. pursuant to the authority of the act of 1916 this appellant, and others like situated, can claim no right to this exemption. We are of the opinion that the lower court was correct, and we will therefore affirm the order. Order affirmed, with costs. (134 Md. 133) STATE ACC. FUND et al. v. JACOBS. (No. 89.) (Court of Appeals of Maryland. March 5, 1919.) 1. Master and SERVANT 362-WORKMEN'S COMPENSATION ACT "CASUAL EMPLOYÉ.” The question whether an employment is "casual," within the meaning of the Workmen's Compensation Act, must be determined with principal reference to the scope and purpose of the hiring, rather than with sole regard to the duration and regularity of the service. 2. MASTER AND SERVANT 362-WORKMEN's COMPENSATION ACT-"CASUAL EMPLOYÉ." A farmer and teamster engaged by a canning factory early in the canning season to do hauling at such times as he might be needed during the season at a certain rate of pay, the hauling being a necessary part of the employer's business, was not a "casual employé," within the meaning of the Workmen's Compensation Act. Appeal from Circuit Court, Caroline County; W. H. Adkins and Philemon B. Hopper, Judges. Proceedings by Julia Jacobs under the Workmen's Compensation Act to obtain compensation for the death of her son. From an order in favor of the applicants, the State Accident Fund and the State Industrial Accident Commission appeal. Order affirmed, and case remanded. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. Ogle Marbury, Acting Atty. Gen., and Philip B. Perlman, Asst. Atty. Gen. (Albert C. Ritchie, Atty. Gen., on the brief), for appellants. The injured man, who was a farmer and teamster, had been employed to do hauling for the factory whenever he was needed for that service. His employer testified: "He was engaged to me early in the canning season to work for me at such times as I might need him, and he promised to help me out at all such times as I might call upon him, and he did so; the day of the accident being the last of the work he had for the season." To the question, "Was there no separate engagement or contract of hiring for the work he was doing on the day of the accident?" the employer replied: "Nothing more than just to tell him to come; the same wages paid all the time, always during the season the same wages." Under this general engagement, the teamster who was injured had been called upon repeatedly for hauling service in the course of the packing season, being paid at the uniform rate of $3 per day when he hauled with his own team, and $1.50 per day when a factory team was used. The Workmen's Compensation Act of this state does not define the term "casual," as therein used to describe one of the classes of employés to whom the act is not intended to apply. It is a purely relative term, and, in the absence of a statutory definition, its application should be determined in each case according to the particular facts presented. The act defines an "employé" to be: "A person who is engaged in an extrahazardous employment in the service of an employer carrying on or conducting the same upon the premises or at a plant, or in the course of his employment away from the plant of his em ployer." There can be no dispute as to the fact that the appellee's son was an "employé," within the definition of the act, at the time he was injured; but it is contended that his be characterized as only "casual," within the employment was so irregular that it should meaning of the act, and therefore expressly excluded from its operation. [1] The question whether an employment is casual must be determined with principal reference to the scope and purpose of the hiring, rather than with sole regard to the T. Alan Goldsborough, of Denton, for ap- duration and regularity of the service. One pellee. who enters into a contract of employment for an entire season is not a casual employé URNER, J. The appellee's son was fatal- merely because he may be required to work ly injured by being thrown against a post as for only short and irregular periods. When he was driving a wagon loaded with canned there is a continuing engagement to serve tomatoes out of the packing factory of his the employer in his business at such times employer. The only question to be decided as the particular and essential service may on this appeal is whether he was a "casual be needed, the employment is not "casual" For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes according to any of the judicial definitions sions of the British Workmen's Compensaof that term. In this case the service required and rendered was occasional, but it was in pursuance of an engagement covering the whole of the working season at the employer's plant. tion Act. Likewise in Cheever's Case, 219 Mass. 244, 106 N. E. 861, the employment of a teamster at various times to haul coal from the employer's coalyard was held to be casual under the Workmen's Compensation Act In Sabella v. Brazileiro, 86 N. J. Law, of Massachusetts (Laws 1911, c. 751, amend505, 91 Atl. 1032, where a longshoreman was ed by Laws 1912, c. 571), and in Gaynor v. employed at a certain sum per hour to help Standard Accident Ins. Co., 217 Mass. 86, load a ship, having frequently rendered 104 N. E. 339, L. R. A. 1916A, 363, a simisimilar service to the same employer on lar conclusion was reached in reference to previous occasions, it was held that the em- the employment of a waiter by a caterer to ployment was not casual under the New Jer- serve at a banquet, the engagement having sey Employer's Liability Act (P. L. 1911, p. no relation to any past or future hiring be134). It was decided in Boyle v. Mahoney, tween the same parties. Other cases in 92 Conn. 404, 103 Atl. 127, that one who which occasional employments were held kept machinery and boats in order at an to be casual, and hence not subject to the amusement park, whenever called upon for operation of statutes providing for such exsuch service, was not a casual employé with- ceptions, are Md. Casualty Co. v. Pillsbury, in the meaning of those words as used in the 172 Cal. 748, 158 Pac. 1031; Chicago Great Workmen's Compensation Act of Connecti- | Western R. Co. v. Industrial Commission, cut. In Jordan v. Weinman, 167 Wis. 474, 167 N. W. 810, a boy who was called in at irregular intervals for service in a butcher's shop, when extra help was needed, or in the absence of a regular employé, was held not to be serving under a casual employment within the terms of the Workmen's Compensation Act of Wisconsin (Laws 1911, c. [2] The work in which the appellee's son 50). Also in Dyer v. James Black M. & C. was engaged when he received the injury Co., 192 Mich. 400, 158 N. W. 959, where a which caused his death was a necessary man employed in other work on a building part of his employer's business. It was a' was engaged to assist in unloading glass as service rendered under an employment it arrived from time to time for use in the which was not limited to the hauling then in same building, it was held that the latter progress, but applied to every recurring ocemployment was not casual, under the Work-casion for such assistance during the whole men's Compensation Law of Michigan (Laws of one of the annual productive periods of 1912 [Ex. Sess.] No. 10), though there was the employer's enterprise. Upon the facts an interval of ten days between the only two of the case we agree with the ruling of the occasions when the service was performed. court below that the employment was not But in Hill v. Begg (1908) 2 K. B. 802, casual within the meaning of the statute, where there was no regular engagement for and that the appellee is entitled to compenthe service, it was held that the employ-sation under its terms. 284 Ill. 573, 120 N. E. 508; Thede Bros. v. Industrial Commission, 285 Ill. 483, 121 N. E. 172; McLaughlin v. Industrial Board, 281 Ill. 100, 117 N. E. 819; Aurora Brewing Co. v. Industrial Board, 277 Ill. 142, 115 N. E. 207; Western Union Tel. Co. v. Hickman, 248 Fed. 899, 161 C. C. A. 17. ment of a man at intervals to clean windows Order affirmed, with costs, and case rewas of a "casual nature" under the provi-manded. (134 Md. 1) CHESAPEAKE & POTOMAC TELEPHONE (Court of Appeals of Maryland. Feb. 11, 1919. 1. TELEGRAPHS AND TELEPHONES 10(9) USE OF STATE ROADS-COMPENSATION. Code Pub. Civ. Laws, art. 23, § 359, giving telegraph and telephone companies the right to use all highways belonging to the state, does not give such companies the right to make special use of the state's property or the exclusive use of the highways of the state free of charge. 2. TELEGRAPHS AND TELEPHONES 10(9) USE OF STATE ROADS - ACTION BY STATE ROADS COMMISSION. Where telephone company made contract with turnpike road company agreeing to pay specified sum for operation of telephone line along turnpike road, and thereafter applied to state roads commission for permit to construct line of telephone poles on turnpike road, agreeing that upon the acquisition by the commission of title to the road all rights reserved in the turnpike company by its agreement with the company should be possessed by the commission, the commission upon acquisition of the road could bring an action to recover compensation for use of road by the telephone company upon the latter's refusal to pay therefor in view of Code Pub. Civ. Laws, art. 91, §§ 34, 35. Appeal from Superior Court of Baltimore City; Walter I. Dawkins, Judge. "To be officially reported." Suit by the State Roads Commission of Maryland against the Chesapeake & Potomac Telephone Company of Baltimore City. Judgment for plaintiff, and defendant appeals. [1910, to January 1, 1915, there have been con- The plaintiff prays the court to instruct the the evidence herein that on July 26, 1905, the court, sitting as a jury, that if it shall find from defendant agreed with the president, managers, and company of the Baltimore and Yorktown turnpike road to pay said turnpike company 25 cents a year for each and every pole maintained by defendant on the York turnpike road, and if the court should further find that the plaintiff did, on July 22, 1910, acquire all the right, title, interest, and estate whatsoever in law or equity of the president, managers, and company of said road in said turnpike road, subject to certain reservations contained in the deed and agreement of July 22, 1910, and that from July 22, 1910, to January 1, 1915, there had been continuously defendant, and that the defendant has paid upon said road 1,019 poles maintained by the nothing to the plaintiff therefor, that then the verdict must be for the plaintiff at the rate of rental set forth in said agreement. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, and CONSTABLE, JJ. Shirley Carter, of Baltimore (Bernarà Carter & Sons, of Baltimore, on the brief), for appellant. Philip B. Perlman, Asst. Atty. Gen., and Ogle Marbury, Acting Atty. Gen. (Albert C. Ritchie, Atty. Gen., on the brief), for appellee. BRISCOE, J. This is a suit by the state roads commission of Maryland to recover from the Chesapeake & Potomac Telephone Company, of Baltimore City, a corporation of the state of Maryland, the sum of $1,132.76, The plaintiff's granted prayers, referred to alleged to be due and owing the plaintiff by in the opinion, are as follows: Affirmed. Plaintiff's first prayer: The plaintiff prays the court to instruct the court, sitting as a jury, that if it shall find from the evidence herein that on July 26, 1905, the defendant agreed with the president, managers, and company of the Baltimore and Yorktown turnpike road to pay said turnpike company 25 cents a year for each and every pole maintained by defendant on the York turnpike road, and that the defendant constructed a pole line upon the Yorktown turnpike road in accordance with a certain application made on May 19, 1910, to the plaintiff, after the passage of an order by the plaintiff dated May 21, 1910, which order provided that all rights reserved to the turnpike company by said agreement with the defendant should be possessed in every respect by the plaintiff in the event of its thereafter securing title to the turnpike road, and that the acting under the terms of said order by the defendant should be its assent to all the provisions of such order, and if the court should further find that the plaintiff did, on July 22, 1910, secure title to said turnpike road, and that from July 22, the defendant for the use of its roadbed for the telephone poles and wires of that company from the 22d day of July, 1910, to the 1st day of January, 1915. The case was heard in the court below upon an agreed statement as to the facts, which is set out in the record, and from a judgment in favor of the plaintiff the defendant has appealed. The cause of action and the basis of the plaintiff's claim are stated and appear from the averments of the declaration and the agreed statement of facts, and, briefly stated, are these: On the 22d day of July, 1910, the president, managers, and company of the Baltimore and Yorktown turnpike road granted and conveyed to the plaintiff, the state roads commission of Maryland, all of its right and title in and over any and all of the roadbed of its turnpike, beginning at the limits of the city of Baltimore, and extending in a northerly direction to a line dividing the states of Maryland and Pennsylvania, a dis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 106 A.-17 |