the right of the appellee to condemn. It could do the appellant no harm, even if a necessary party had been omitted. (2) As the order of the court expressly limited the right of appellee to condemn an easement, the second ground is likewise immaterial. show that the route adopted was an unreasonable or improper one. If the road is built on that route, there can be no doubt that it is necessary to cross Columbia avenue, unless that could be avoided by adopting some circuitous route which would go around Hyattsville, but that might require it to cross (3) What we have already said as to the ac- some other public highway, which it does not ceptance of the charter is sufficient. (4) As the general manager of the company testified that "he knew the proposed route was adopted by the stockholders and also by the board of directors," there was evidence, which went in without objection, that the route had been approved by both. (5) There can be no doubt, from the case before us, that the company has authorized these proceedings. [6] (6) The answer of the appellant to the petition of the appellee is ample to show that they have been unable to agree, and the fact that the right of the appellee to condemn this easement has been in court for over 18 months certainly does not tend to show the contrary. now cross, the crossing of which would be equally objectionable to those interested in that highway. It may be observed here that in our judgment it is for the court, and not for a jury, to determine whether it is necessary to condemn any particular property, excepting in so far as the Public Service Commission may pass on that question under section 438 of article 23. That was so in Maryland prior to the act of 1912, which did not change the rule. There may be cases in which it will be proper to submit to a jury certain questions of fact in connection with that subject, but there is nothing in this case which suggests any reason for submitting to a jury any matter reflecting upon the question of necessity to condemn this crossing. (8) The map filed with the petition designates the property sought to be condemned. (9) We have already said all that is necessary as to the termini. (10) This reason is too indefinite to be passed on by this court. [9] (11) This reason was intended to present what is perhaps the most important question in this appeal. It is as follows: "Be road corporation chartered under the laws of this state, cannot exercise any franchise or right under the railroad law, or any other law, without the permission and approval of the Public Service Commission, and the petitioner has wholly failed to prove that it has such permission and approval from said Commission for the exercise of the rights attempted to be exercised by it in these proceedings, and in fact the petitioner has no [7] (7) We cannot agree, with the appellant's construction of what the law means when it speaks of it being necessary to acquire certain property. When a railroad company can adopt one of two or more routes between its termini, it never could exercise the power of eminent domain, if appellant's contention is correct. If it undertook to condemn property along one route, the owners could contend that it was not necessary because the petitioner, purporting to be a railcause it could take another route, and, if it adopted the other route, an owner there could go through the same obstructive process. That is not what the authorities mean, but what is meant is illustrated by the case of New Central Coal Co. v. George's Creek Coal & Iron Co., 37 Md. 537, where it was alleged that the two companies owned adjoining lands, and the condemning company sought to take the property of the other company instead of using its own to reach its destina-such permission and approval." tion. Judge Alvey said: "To justify the ex- On the 20th of June, 1912, the Public Servercise of this extreme power, where the Legis-ice Commission passed an order which conlature has left it to depend upon the necessity tained the following: "Ordered, that the conthat may be found to exist, in order to ac-struction, equipment and operation by the complish the purposes of the incorporation, as Washington, Westminster & Gettysburg Railin this case, the party claiming the right to road Company of its road from Brentthe exercise of the power should be required wood, in Prince George's county, Maryland, to show at least a reasonable degree of neces-to Sandy Springs, in Montgomery county, sity for its exercise." But he had previously Maryland, a distance of about eighteen (18) said: "The general rule doubtless is, as ap- miles over the route laid out in the blueprint plicable to a railroad to be located between filed with the original petition filed by said given termini, the act of incorporation not railroad company with this Commission (Case defining the precise location, that the man- No. 89); and the exercise by said railroad agers or directors of the corporation are company of franchises to cross public highmade the sole judges of what is proper or ways granted by the county commissioners of convenient, as well with reference to location Prince George's county and Montgomery counas to the execution of all other powers grant-ty, respectively, and by the proper authority ed, as means of attaining the objects of the of any municipal corporation, are hereby percharter." [8] In this case it was shown that the route of the proposed road crossed Columbia ave mitted and approved, this Commission hereby determining that such construction and such exercise of franchises or privileges are con ever, that before such construction is begun follow this finding will only cover the perover, upon or under any public road or street mission to begin construction and the authora copy of the order or ordinance by which ity to issue securities"-and added: "This the use of such road or street is granted shall language seems to refute the view expressed be filed in these proceedings." The order by counsel for the company that the order then went on to authorize the issue of $144,- permitted grade crossings at the places nam000 of preferred stock, $100,000 of common ed. Such was not the intention of the Comstock, and coupon bonds to the amount of mission." The opinion then referred to the $630,000, to be secured by a mortgage or deed fact that the question of the validity of the of trust on the portion of the road thereby company's charter had not been raised when authorized to be constructed, and provided the proceedings in June, 1912, were had and for certain reports to the Commission, etc. had not yet been determined, and added: On the 25th of June, 1913, the Commission "Under these circumstances we think the passed an order as follows: "Ordered, that company should take no further steps under No. 779 passed in this case on the 20th day of the order until the cases now pending in the June, A. D. 1912, so far as it authorizes the courts are disposed of. It would accomplish construction, equipment and operation by the no practical purpose to spend money upon Washington, Westminster & Gettysburg Rail- sections of the road not affected by litigaroad Company of its road from Brentwood, tion, with the risk of being permanently dein Prince George's county, Maryland, to San-prived of the ability to construct the entire dy Springs, in Montgomery county, Maryland, road; and it would be both unwise and una distance of about eighteen miles, and so far as it authorizes the issue by said corporation of stock and bonds, be and the same is hereby suspended, until the Commission of its own motion, or upon the petition of said corporation, by appropriate order, revive and reinstate the same." fair to issue securities in the face of the uncertainties described above. So far as the crossings at Columbia avenue and the City & Suburban tracks are concerned, the Commission will at an early date render a decision as to the method of construction at those points, so that the company will be fully advised of the conditions it must comply with." It is therefore clear that the Commission did not claim to have the right to interfere with the condemnation proceedings, but, on the contrary, fully recognized the fact that the court must determine whether the appellee had the right to exercise the power of eminent domain. In the case of City & Suburban R. R. Co. v. Wash., West. & Gettysburg R. R. Co., 120 Md. 142, 87 Atl. 833, we said: "It will be well at the rehearing of the case by the lower court to give the Commission the right to be heard, if it so desires, provided the court determines the charter to be sufficient, after taking testimony as pointed out in the opinion above referred to" (being that in the case reported in 120 Md. 128-141, 87 Atl. 828). Section 418 of article 23, amend The latter order was passed just two days before the time at which this and the case of the City & Suburban Railroad Company had been set for hearing by the lower court, after they had been remanded by this court. Whatever may be the rights and powers of the Public Service Commission in reference to railroads crossing public roads, streets, or other railroads, surely it cannot be that the Commission, a year after it has passed such an important order as the one of June 20, 1912, can, by suspending that order, stop condemnation proceedings actually pending in the court having jurisdiction over them. The delays incident to the proceedings provided for by Acts of 1912, c. 117, are not calculated to attract new public service companies to this state; but if, after such proceedings as had already been taken in these cases, the Commission could, by suspending its ordered by chapter 563, Acts of 1912, gives the passed a year before, put a stop to all further condemnation proceedings, the delays would become intolerable. We are not only of the opinion that the order of June 25, 1913, could not have such effect, but we are satis fied that such was not the intention of the Commission. The opinion filed by it on the same day shows conclusively that it was not intended to in any way interfere with the condemnation proceedings. It quoted from the findings of the Commission on June 20, 1912, where it was said: "The difficulties at the crossing of the City & Suburban Railways Company's tracks and the crossing of Columbia avenue, in Hyattsville, are now in the courts under condemnation proceedings. When these difficulties are removed, it will be the duty of the Commission, by appropriate orders, to provide safety appliances to Commission authority to direct its general counsel, or other agent or instrumentality, to represent and appear for it in all actions and proceedings involving any question under that act or under or in reference to any act, order, or proceeding of the Commission, and "to intervene, if possible, in any action or proceeding in which any such question is involved.” It would therefore have been within the contemplation of the statute, and might have avoided further trouble and de lay, if the Commission had been represented at the hearing; but, as it did not appear, there was nothing left for the lower court to do but to determine the questions before it as to the right of the appellee to condemn. Section 438 of article 23 provides that: "No common carrier, railroad corporation, or street railroad corporation, shall begin the will direct that each party pay one-half the costs in this court. Order affirmed, and case remanded; each party to pay one-half the costs in this court. or any extension thereof, or exercise any franchise or right under any provision of the railroad law, or of any other law not heretofore lawfully exercised, without first having obtained the permission and approval of the Commission. The Commission shall have power to grant the permission and approval CITY & S. R. CO. v. WASHINGTON, W. & herein specified whenever it shall, after due hearing, determine that such construction or such exercise of the franchise or privilege is necessary or convenient for the public service." As we have seen above, the Commission had determined "that such construction and such exercise of franchises or privileges are convenient for the public service"; and the order of June, 1913, certainly did not expressly, and we do not understand it to have intended to, alter that determination, but merely to suspend the construction, etc., until its further order. G. R. CO. (No. 10.) (122 Md. 655) (Court of Appeals of Maryland. Feb. 25, CEEDINGS RIGHT TO INSTITUTE PROCEED- Act (Code Pub. Civ. Laws, art. 23, §8 413-468), [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 461; Dec. Dig. § 169.*} Appeal from Circuit Court, Prince George's County; Fillmore Beall, Judge. "To be officially reported." Condemnation proceedings by the Washington, Westminster & Gettysburg Railroad Company against the City & Suburban Railroad Company. From a judgment for plaintiff, defendant appeals. manded. Affirmed and re See, also, 120 Md. 142, 87 Atl. 833. S. R. Bowen and W. Wells, both of Washington, D. C., for appellant. T. Howard Duckett, of Washington, D. C. (Marion Duckett, of Washington, D. C., on the brief), for [10] Our statute does not in terms authorize the Public Service Commission to determine whether a railroad shall cross a public highway at, above, or under grade, but the language of section 438 is so broad that in our judgment it has that power, subject, of course, to such review of the court having jurisdiction thereof, as to the reasonableness of the action of the Commission, as is given by the statute. Indeed, it is said in the appellee's brief, "We have always been of the opinion that before a railroad could begin actual construction, first having obtained its rights of way, it must, under section 438 of article 23 of the above Code, obtain the approval of the Public Service Commission to such construction;" but it is contended that it must first acquire the right of way. It would certainly be better to have that determined before the court passes the order authorizing the condemnation, and should at least be before the appraisers are appointed under the provisions of section 5 of chapter 117, Acts of 1912, as the award of damages BOYD, C. J. The questions involved in may be affected by the method of crossing this appeal have in effect been disposed of by at, above, or under grade. In Lewis on Em. the opinion filed at this term in the case of Dom. (3d Ed.) § 424, in speaking of one rail- Mayor and Common Council of Hyattsville road crossing another, it is said: "In the ab- v. Washington, Westminster & Gettysburg sence of statutory regulation, the place and Railroad Co., 90 Atl. 515. The principal manner of crossing are left, in the first in- question argued in this case was whether stance, to the discretion of the crossing road, there should have been an order for condemand it may condemn a right to cross general-nation against the appellant before the Publy or the right to cross in a specified man-lic Service Commission had determined ner." Following such a rule in this case, the whether there could be a crossing at grade. condemnation of the right to cross generally The statutes of this state are in more or would seem to be sufficient, but, as indicated less confusion as to the proper procedure above, we think the manner of crossing should first be determined. After that is finally settled by the Public Service Commission, the lower court, in appointing the appraisers, can instruct them as to the method of crossing, as so determined, and its order of condemnation can be treated as so modified. It follows that the order of the court will be affirmed, and, under the circumstances, we appellee. in cases such as this. In section 306 of article 23 of the Code it is provided that: "Every railroad company of this state, heretofore or hereafter incorporated, wherever it shall find it necessary in the construction of its railroad or any lateral branch, is hereby authorized to cross at, under or over grade any railroad now or hereafter constructed." That section then provides that, if the companies cannot agree "as to the compensation and terms upon which such crossing or crossings shall be made," the company may condemn the easement of such crossing or crossings in the mode provided for the condemnation of the lands of individuals in and by section 269 of that article. It then provides that, if the crossing be at grade, the crossing company shall, at its own expense, erect a proper signal station and keep a watchman at the crossing, and that the trains of the company crossed shall have precedence over those of the crossing company, and that, if the crossings be under or over grade, they shall be so constructed as not to interfere with the passage of trains of the first company. new article on eminent domain, was passed. No reference is made in it to the Public Service Commission Act, and section 7 provides that: "The state, and any municipal or other corporation, commission, board, body or person, which under the laws of this state, has the right to acquire property by condemnation, shall acquire such property, if condemnation proceedings be resorted to, in pursuance of, and under the provisions of, this article, anything in any other public general law or public local law or private or special statute to the contrary notwithstanding: Provided, however, that nothing in this article contained shall apply to or change the present law or procedure for the opening. closing, widening or straightening of highways." Section 2 provides that "the proceedings shall be begun by the filing of a petition in the circuit court for the county," etc.; and section 3, that, "upon the filing of said petition, the court, or any judge thereof, shall pass an order directing a summons to issue for the defendants"; and then, after providing for service of summons, order of publication, the answer, etc., it is provided that upon default "the court shall enter judgment that the said property, or the interest therein of the defendant or defendants so in default, be condemned," and that the court shall render the same judgment if the answer does not deny the right of the petitioner to have the property condemned. If that right is denied, the court hears the question and gives judgment either that the property be condemned or that the petition be dismissed, as the case may be. In 1910 (chapter 180) what is known as the Public Service Commission Act was passed, and embraces sections 413-468, inclusive, of article 23 of the Code of 1912. There is nothing in that statute which in terms authorizes the Commission to determine whether a railroad crossing should be at or above or under grade. There is no express reference in it to railroad crossings, either over other railroads or public streets or roads. The provisions most relied on by the appellant are those in section 438 of article 23 (section 26 of the Act of 1910), which provide that: "No common carrier, railroad corporation, or street railroad corporation, shall begin the construction of a railroad or street railroad, or any extension thereof, or exercise any franchise or right under any provision of the railroad law, or of any other law not heretofore lawfully exercised, without first having obtained the permission and approval of the Commission. The Commission shall have power to grant the permission and approval herein specified when ever it shall, after due hearing, determine that such construction or such exercise of the franchise or privilege is necessary or convenient for the public service." And by section 55 of the Act of 1910 it is enacted that all acts and parts of acts conflicting or inconsistent with any provision of that act were thereby repealed so far as they conflicted or were inconsistent with it. Section 438 is undoubtedly very broad, and it would In the other opinion we quoted from the seem to be necessary to obtain the permission order of June 20, 1912, which showed the and approval of the Commission in order to Commission had given its permission and apexercise the right given by section 306 of ar-proval to the appellee to construct its road ticle 23, which is a part of the railroad law from Brentwood to Sandy Springs, and what of the state, although, of course, its action is we said there as to the order of June 25, subject to section 423, which provides that | 1913, is equally applicable here; that it did “any company, corporation, association, per- not and was not intended to interfere with son or partnership subject to any of the provisions of this subtitle, or other person or party in interest, shall have the right to proceed in the courts to vacate, set aside or have modified any order of said Commission on the grounds that such order is unreasonable or unlawful, as hereinafter more particular ly set forth"; and section 457 and the sueceeding section relate to the procedure. While the statutes referred to were in the It is manifest that the Legislature did not intend by the Public Service Commission Act to take away the right of a railroad to condemn such property and rights as were necessary for its construction. Indeed, that Commission has no means of exercising such a right, if it could be constitutionally conferred on it. It is equally clear that it is not the tribunal to determine such questions as whether or not the charter of the appellee was valid, which is purely and clearly a judicial question. the condemnation proceedings. As the property sought to be condemned lies between Brentwood and Sandy Springs, there can be no doubt that the Commission did give its permission and approval to the appellee to cross these tracks, but it had not determined whether the crossing should be at, above, or under grade. A railroad may cross another under general authority to build its road. subject, of course, to such regulations as the essary for the Commission, in its order, to expressly authorize the right to cross these tracks. "It is manifest that, if this could not be done, then a general authority to locate and construct new railroads would be nugatory" (Lewis on Em. Dom. [3d Ed.] § 424), and on the same principle steam rail Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. George R. Willis, of Baltimore, for appellant. Edgar H. Gans, of Baltimore (Charles Markell, of Baltimore, on the brief), for appellee. Henry W. Williams, of Baltimore, for trustee. Robert F. Stanton, of Baltimore, for bondholder. roads may cross the tracks of a street railway (Id.). Many authorities might be cited: to the same effect, but the provisions of section 306 of article 23, quoted above, make it STOCKBRIDGE, J. By the decree from unnecessary. The only question about that was how far the Public Service Commission which this appeal is taken, the firm of Eshad the right to determine whether the cross-tabrook & Co. were required to specifically ing should be at, under, or above grade. As perform a contract for the purchase of bonds we have said in the other case, and it was of a par value of $312,000 of the Consolidatconceded by the appellee that it had the right ed Gas Company of Baltimore (hereinafter to so determine, it only remains to decide called the Gas Company). The bonds conwhether that must be determined before the tracted to be sold and purchased were a condemnation proceedings. What we said in part of an issue of $15,000,000 of bonds prothe other opinion on that question is equally vided for by the terms of a mortgage dated applicable here, and, although it might be April 1, 1904. The validity of a portion of well to have the precise powers of the Pub- these bonds has been twice before this court, lic Service Commission in reference to such once in the case of Diggs v. Fidelity & Decrossings more definitely fixed by statute, we posit Co. et al., 112 Md. 50, 75 Atl. 517, 20 are of opinion that, under existing statutes Ann. Cas. 1274, and once in the case of Orand the circumstances of this case, the meth-rick et al. v. Fidelity & Deposit Co. et al., od of crossing the appellant's road can still 113 Md. 239, 77 Atl. 599, and the facts rebe determined by the Commission; and, aft-lating to and attendant upon the issue of er it has been so determined by its final action, the court can so instruct the appraisers, and the order already passed shall then be treated as so modified. Order affirmed, and case remanded; each party to pay one-half of the costs in this court. (122 Md. 643) ESTABROOK & CO. v. CONSOLIDATED certain the bonds provided for in the mortgage are set out with such fullness of detail in the opinions filed in those cases as to render a repetition of them unnecessary. Py the terms of the mortgage, a certain number of the bonds to be issued were to be applied to specific, designated purposes, and not merely was the aggregate amount applicable to each object clearly stated, but bonds bearing named serial numbers were dedicated to each purpose. The cases heretofore before this court arose out of an attempt to treat as valid under the mortgage bonds the proceeds of which had been or were to be used for the acquisition of property by the Consolidated Gas, Electric Light & Power Company (hereinafter called the Consolidated Company), after the Gas Com Where a corporation executed bonds secured by mortgage, and delivered them to the trustee under the mortgage, who certified them, and a large portion of the bonds had been used for the specified purpose for which they were executed, and thereafter the corpo-pany had ceased to exist, as the result of a ration was consolidated with another corporation, the bonds not disposed of before consolidation- were duly "issued" within the meaning of that term as applied to bonds, which, though it usually includes the idea of delivery, does not invariably do so, but means to go forth as binding, and in financial parlance indicates the date from which the obligation runs, so that the consolidated corporation had a right to use the same for the designated purpose for which they were executed (citing Words and Phrases, vol. 4, p. 3779). [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2354-2360; Dec. Dig. § 589.* For other definitions, see Words and Phrases, vol. 4, pp. 3778-3782; vol. 8, p. 7693.] Appeal from Circuit Court of Baltimore City: Morris A. Soper, Judge. Suit by the Consolidated Gas, Electric Light & Power Company of Baltimote against Estabrook & Co. From a decree for plaintiff,¦ defendant appeals. Affirmed. consolidation; and this court held that bonds purporting to be the obligations of a corporation no longer having any vitality could not be deemed to be included under the protection of the mortgage, when not issued for a purpose definitely specified in the mortgage, and which bonds up to that time remained unissued, and not dedicated to the immediate purpose for which they were proposed to be issued. The present case arises under an entirely different clause of the mortgage from that under consideration in the prior cases. In both of those this court was considering the clauses of the mortgage providing for the issuance of bonds for the purpose of acquiring additional plant or property. The clause involved in the present case reads as follows: "Fifteen hundred (1,500) of said bonds, |