Park Tax Case

McSherry, C. J., delivered the opinion of the Court. The question involved in this case is clearly stated in the following terms by the learned Judge whose rulings are now before us for review : “ The defendant company operates a local passenger railway, running for a part of its length (about two miles) through the annexed district, or within the present territorial limits of the city as extended, and for the rest of its length (about three and one-half miles) westwardly beyond those limits, and for the whole of its length on its own right of way, acquired and maintained at its own expense. This right of way it has purchased from the turnpike company upon whose roadbed its tracks are laid, under legislative authority. No street franchise or concession of any kind whatever has been conferred upon it by the city. Its tracks are not laid upon, nor does it use, nor has it received any municipal privilege upon any city street or streets acquired by the city by grant, dedication or condemnation, or in any other way, and maintained at public expense. The question is, whether such an enterprise properly answers to the description of a street railway within the intent of the laws imposing the park tax of nine per cent, upon gross receipts from all street railway lines within the present city limits ?” The appellee company is the successor of the Baltimore, Catonsville and Ellicott’s Mills Passenger Railway Company. This latter company was incorporated by the General Assembly of Maryland under an Act passed at the January session of 1.860, ch. 34. By authority of this Act the corporation thereby created constructed a single track horse railway upon the bed of a turnpike road owned by the president, managers and company of the Baltimore and Fredericktown Turnpike Road, after first, by agreement, procuring for a money consideration, the right of way from the turnpike company. The railway thus constructed was [15] located wholly in Baltimore County, with one terminus just at the city limits. Some thirty years afterwards this railway company became embarrassed financially and its property was sold under foreclosure proceedings, and the present appellee was the purchaser and assumed the same name, with the single exception that the word railroad was substituted for railway. The re-organized company—the appellee—having determined to change the motive power for the propulsion of its cars from horses to electricity, was empowered under the Act of 1894, ch. 162, to contract with the turnpike company for the amount of compensation to be paid to the latter for the use of its roadbed by this different and more rapid method of transit. Conformably to this Act the right to use the turnpike roadbed for an electric railroad was acquired by agreement for the sum of twenty-eight thousand dollars in money and the further consideration of the performance of certain stipulations which need not be stated or considered, as they are not material in respect to the pending controversy. By ch. 98 of the Acts of 1888 the limits of Baltimore were extended and part of the railway now owned by the appellee and theretofore built by its predecessor was brought within the enlarged outlines of the city. When permission was first given by the Mayor and City Council in 1858, by ordinance, to certain individuals to construct a passenger railway upon some of the city streets and to run thereon cars drawn by horses, a tax of one-fifth portion of the whole passenger receipts was exacted; and when in 1862 these same individuals secured from the General Assembly an Act incorporating the Baltimore City Passenger Railway Company the exaction of one-fifth of the gross receipts was embodied in the fourth section of the charter. As succeeding street railway companies were formed a like tax was imposed upon them by the city. In 1874, by ordinance, the rate of this tax was reduced to twelve per cent., and in 1882 the Legislature, by chapter 229, provided “that each of the several passenger horse [16] railway companies in the city of Baltimore shall charge five cents and no more” for conveying each passenger, &c.; and by the second section, “that in lieu and substitution of the twelve per cent, tax now imposed upon and payable by the said several passenger horse railway companies mentioned in the first section of this Act, the said several passenger horse railway companies shall pay * * a tax upon their gross receipts of nine per cent., &c.” This tax is what is known as the park tax, and, up to the time of the annexation to the city of the outlying belt in 1888, was imposed upon and collected only from street railway companies upon the basis of their receipts within the city limits. Since the decision by this Court of the case of Balto. U. P. Ry. Co. v. M. & C. C. Balto., 71 Md. 405, there can be no question that the tax thus imposed was laid and collected in consideration of the privilege or franchise granted by the city to the several street railway companies to lay their tracks and to run their cars upon the public thoroughfares of the city. “ The nine per cent, tax * * has been imposed for the privilege accorded by the city to the appellant of using its streets for railway purposes.” 71 Md. 413. There is no pretence that the tax was ever imposed or collected either in respect of gross earnings received from suburban travel, or in respect of such earnings accrued to any other railway than one located and operated upon a public street of the city. The history of the legislation relating to this subject would, apart altogether from the explicit language used in 71 Md. supra, be sufficient to demonstrate, we think, that the tax was a franchise tax exacted in exchange for the privilege accorded these several companies to lay their rails and run their cars upon city streets—streets subject to the control of the Mayor and City Council of Baltimore and subject to no other dominion whatever. This is emphasized by the ordinance which reduced the rate of the tax to twelve per cent., for it provided that the several railway companies named in it (and. the appellee is not included) should be required to pay to the City Register twelve per cent, of their [17] gross receipts “ in lieu of the one-fifth as now required under their respective grants.” Clearly this language indicates, if it does not expressly declare, that the tax was the equivalent for the grant; and consequently if there were no grant there was to be and in reality was, no tax. When subsequent legislation spoke of streets in connection with this class of railways, it manifestly meant streets and not private rights of way. It would do violence to the words employed in the Act of 1894, ch. 550, relating to this subject, and would ignore the distinctive character of the tax itself, if the term street railway were stretched so far from its natural and primary meaning as to force it to include railways, that though operated like street railways, are in fact not built upon and do not occupy streets at all. As the Act of 1888 has brought a part of the appellee’s tracks within the new limits, it is insisted by the city that the appellee became liable to pay this tax upon the earnings received from that part of the road, solely because of the extension of the city outlines, even though the turnpike road still continues a turnpike road and has not become a street at all. But the obvious answer, it seems to us, is that appellee’s road was not constructed upon a street of the city; is not now located on such a street; but was built upon and still occupies its own purchased right of way over which the city has not now and never has had control; and as to the occupancy of which the city could not confer and never undertook to confer on the appellee any right or privilege whatever. A permission given by the city to the appellee to locate its tracks upon their present site, along the bed of the turnpike, would have conferred no right or authority to construct the road where it is now located. That right and authority were derived from the Legislature and from the turnpike company. If, then, no right was conferred by the city—and confessedly there was not—for the tracks were laid long before the city’s limits embraced any part of the territory through which the appellee’s railway runs, the city gave nothing to the appellee in exchange for which it could [18] lawfully exact the franchise tax; and in this vital particular the appellee differs widely from the old lings constructed within the city and upon the beds of the city’s streets. The extension of the city limits gave to the appellee no rights or privileges which it did not have before. It granted to the company no authority it did not already fully possess and enjoy. If the appellee held, before the Act of x888, none of its rights as to the occupancy of the turnpike by grant, license or permission from the city; and if it acquired from the city since the extension no other rights than it had before ; there can be no ground upon which the claim to collect the tax can be placed unless it be that the Act of 1882, and a subsequent Act of 1894, ch. 550, have authorized the city to impose a gross receipt tax for the benefit of the city without regard to whether the railway be located on a city street, on a turnpike road, or wholly on private property acquired by the company through purchase or condemnation. There is no such intention manifested in either of the statutes referred to, and we are not, in our judgment, authorized to expand by sheer implication a tax burthen of this kind so as to make it include an object, or speaking more accurately a person, natural or artificial, obviously not within the scope of the original scheme devised to raise revenue for the maintainance of the parks. Without going into any of the other questions discussed at the bar and in the elaborate briefs filed, it seems to us no valid reason can be assigned for holding that the appellee is now liable to pay this gross receipt or park tax. The road does not answer the description of the class of railways heretofore subjected to the tax; and this is so because it never was and is not now located on a street of the city. (Decided June 19th, 1896). In our judgment the rulings below were right, and the judgment appealed from should be affirmed. Judgment affirmed with costs above and below.