public sale, at any time thereafter, without advertisement or notice to and with the right on the part of said bank to become purchasers thereof at such sale, freed and discharged of any equity of redemption, the proceeds to be applied to the payment of the abovementioned obligations and liabilities, any excess or deficiency to be paid or received by ... as the case may be, and ...... further authorize the said bank, or its president or its cashier to use, transfer or hypothecate the collateral security, they being required on payment or tender at maturity of the amount of the said obligations and liabilities to return an equal amount of said securities, and not the specific securities pledged. "T/D50.25 E. M. Noel." Demand. Reverse Side. "For value received hereby agree to become surety for the faithful performance of the obligations contained in the within note." The certificate for the 20 shares of stock is in the name of J. Kemp Bartlett, dated the 20th of May, 1912, and is in the usual form. It was delivered to the bank as collateral security for the note of July 23, 1912. To this certificate of stock was attached the following power of attorney dated the 20th day of May, 1912, and signed by J. Kemp Bartlett: "Know all men by these presents, that I, J. Kemp Bartlett, for value received, have granted, bargained, sold, assigned, and fully and irrevocably transferred, and do by these presents, grant, bargain, sell, assign and fully and irrevocably transfer for all purposes unto twenty (20) shares of the capital stock of the United States Fidelity & Guaranty Co., standing in ..... name, on the books of and do hereby constitute and appoint irrevocably for ...... to be ...... true and lawful attorney, and in name and stead, to sell, hypothecate or dispose of in any manner and for any purpose, assign, transfer and set over to any person or persons the whole or any parts of said stocks at once or from time to time, and for that purpose to make all necessary acts or assignment or transfer, and with power to substitute one or more persons in ...... stead, as to the whole or parts of said stock, with all the powers herein mentioned ...... hereby ratify and confirm all acts that ... said attorney, or any substitute or substitutes under shall lawfully do by virtue hereof. "In witness hereof, have hereunto set my hand and seal this twentieth day of May, A. D. 1912. "J. Kemp Bartlett. [Seal.] "Signed, sealed, and delivered in the presence of: F. Aloysius Michel." The bank also holds a demand collateral note of Noel's, dated July 1, 1909, for an ad ditional loan of $3,000. The collaterals held by the bank are insufficient to pay this lastnamed note, and it claims the right to hold the 20 shares of stock as collateral security for the payment of both notes, under the terms of the contract and pledge by Noel, at the time of the loan. The facts and history of the two loans are thus stated by the appellee in his brief: "The notes which the bank now holds are a four months' collateral note of July 23, 1912, for $3,000 and a demand collateral note of July 1, 1909; each note being for $3,000. The specific certificate of 20 shares sued for in this case was pledged and delivered with the note of July 23, 1912, but the note of July 23, 1912, evidenced a debt which originated in July, 1908, at which time there was pledged a certificate for 30 shares of stock of the United States Fi delity & Guaranty Company. The bank held this certificate for 30 shares of stock at the time when the loan of July 1, 1909, evidenced by the demand note for $3,000, was made, and Mr. Page, the president of the Calvert Bank, testified that it was part of the inducement for making the loan of July 1, 1909, that there was considerable margin in the 30 shares held as collateral for the first loan. The original note of July, 1908, was renewed from time to time; the last being the note of July 23, 1912. In the early part of 1912, the appellee permitted the certificate for 30 shares to be withdrawn and a certificate of 20 shares substituted in its place. At that time the stock had advanced so much in value that the 20 shares were worth about as much as the 30 shares were when originally pledged." There is no dispute as to the loan of the stock by the appellant to Noel, but it is contended there was a distinct understanding and agreement between them that Noel should not borrow upon the stock a sum in excess of $3,000. While this restriction and limitation may have been understood between the appellant and Noel, there is no evidence whatever or to any of its officers. The plaintiff testified that he never informed the bank of the agreement, and the testimony as to what Noel in his lifetime told the appellant, which had been admitted subject to exception, was properly stricken out at the conclusion of the testimony. that it was ever communicated to the bank The evidence upon the part of the defendant was to the effect that the bank never had any notice of the agreement between the appellant and Noel that the stock should not be pledged for more than a $3,000 loan. The witness Page, president of the bank, testified as follows: "Q. Did you or the bank have any notice of any agreement that the stock should not be hypothecated for more than $3,000? A. No, sir; on the contrary, I figured to Mr. Noel when the second loan was made the margin on it; when the second loan was made I figured it; I went and got the envelope and figured it up; and he was thoroughly conversant of the fact that we were holding it for that purpose. Q. He never told you Mr. Bartlett said it was not to be pledged generally, but only for that loan of $3,000? A. No, sir; never; as I said a moment ago, he knew it could be pledged for more, because he knew it could be figured on the margin." the power of attorney, given Noel by the apIt is very manifest, we think, that under pellant, he had the right and power to pledge the stock as collateral security, not only for the loan of $3,000, but also for any other debt he might owe the bank. The very face of the instrument itself shows that Noel had debt he might owe the bank. The very face this power. The language of the power of attorney is: "Do by these presents, grant, bargain, sell, assign and fully and irrevocably transfer for all purposes unto twenty (20) shares of the capital stock and do hereby constitute and appoint true and lawful attorney, ...... to sell, hypothecate or dispose of in any manner and transfer and set over any, purpose, assign, for There was nothing upon the face of the certificate of stock, the collateral notes, or the power of attorney that would put the bank on inquiry or impart notice that Noel was limited or restricted in any way in the disposition or the hypothecation of the stock. On the contrary, any one examining the power of attorney would see that he had power to transfer the stock "for all purposes," and to sell, hypothecate, or dispose of it in any manner and for any purpose. The cases of Taliaferro v. Bank, 71 Md. 204, 17 Atl. 1036, and German Savings Bank v. Renshaw, 78 Md. 475, 28 Atl. 281, relied upon by the appellant, will be found upon an examination to be unlike this case. In those cases there was no power "to hypothecate or dispose of in any manner and for any purpose," as in this case, but the power was merely to sell, transfer, and set over to bank but not to pledge for debt. In Merchants' Bank v. Williams, 110 Md. 352, 72 Atl. 1117, it is said: "This stock was pledged not for the $216.45 only, the amount required by Mrs. Williams to complete her purchase, but also for the general debit account of Mr. Williams with the firm of Wilson, Colston & Co., and therefore the defendant is entitled to have deducted such amount, with interest to date of trial, as Mr. Williams may owe that firm." In the absence of any notice by the bank of the alleged restrictions which the appellant claims he placed upon Noel at the time of the transfer of the stock to him, we think it is clear that the bank has the right to rely upon and to hold the stock here in question, not only for the $3,000 mentioned in the collateral note of July 23, 1912, but for all other indebtedness of Noel to it. It follows, for the reasons stated, that the court below committed no error in rejecting the plaintiff's prayer and in granting the defendant's second prayer. There was no error in granting the defendant's motion to strike out the testimony set out in the first bill of exception. The judgment will be affirmed. Judgment affirmed, with costs. (123 Md. 561) tric railway company in operation upon any public or private road, "when acquired hereunder," shall be disturbed in its operation or maintenance, and Laws 1910, c. 116, supplementary thereto, declared that nothing therein should change the provisions of the prior act as to the rights of electric railway companies upon any public or private road, and authorized the commission to contract with them for the construction of bridges, etc., for overgradē or undergrade crossings at the cost of the commission. Held, that the commission could not require defendant electric street railway company at its own expense to make changes ordered in the grade and location of its railway, whether operated on its private rights of way or upon public roads, and escape liability for such expense on the ground that the city might require the railway to make its tracks conform to changes in the grade of a city street, and an agreement between the city and the railway as to bringing the railway under the acts and ordinances relating to the city's park tax, by which the railway agreed to accept a nominal award for its easement in one of such streets, was not a waiver of its rights as against the commission. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 291, 292, 296; Dec. Dig. § 98.*] 2. RAILROADS (8 98*)-CHANGE OF GRADE AUTHORITY OF STATE ROADS COMMISSIONEXERCISE OF POLICE POWER-PRESUMPTION. The powers of the state roads commission, established by Laws 1908, c. 141, as supplemented by Laws 1910, c. 116, under the denomination of police powers, must be derived from the Legislature by express grant or by fair intendment, and there could be no presumption in favor of a grant to it of the power to order changes in the grade and location of the roadbeds and overhead system of an electric street railway at the expense of the railway. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 291, 292, 296; Dec. Dig. § 98.*1 Appeal from Superior Court of Baltimore City; Chas. W. Heuisler, Judge. "To be officially reported." Action by the State Roads Commission against the United Railways & Electric Company of Baltimore. Judgment for plaintiff, and defendant appeals. Reversed, without awarding a new trial. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, and CONSTABLE, JJ. Joseph C. France, of Baltimore (J. Stanis UNITED RYS. & ELECTRIC CO. OF BAL-laus Cook, of Baltimore, on the brief), for ap TIMORE v. STATE ROADS COM- (Court of Appeals of Maryland. June 25, 1914.) pellant. S. S. Field and Isaac Lobe Straus, both of Baltimore (Leon E. Greenbaum, of Baltimore, on the brief), for appellee. THOMAS, J. In 1908 the Legislature pass 1. RAILROADS (§ 98*)-CHANGE OF GRADE- Laws 1908, c. 141, established a system of public roads and appointed a state roads commission, and by section 32b authorized the commission to maintain a general system of improved state roads, including roads within the city of Baltimore, by section 32c provided that the commission might take over any county road, etc., and accept by gift or surrender and acquire by purchase any existing turnpikes or interests therein, subject to any outstanding occupation or use by any electric railway company, and by section 32e provided that no elec "providing for the establishment of a system of public roads and highways in Maryland, and providing for the appointment of a commission to be known as the 'state roads commission,' with full powers to construct, improve and maintain public roads and highways in the several counties of this state; and providing also the ways and means, and making the necessary appropriations of money and for a bond issue for the construction, improvement and maintenance thereof, and for the expenses of such commission in the execution of its powers and duties." *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes By section 32b of the act the state roads commission, hereinafter referred to as the commission, was given full power and charged with the duty to select, construct, improve, and maintain such a general system of improved state roads and highways as could "reasonably be expected to be completed" with the funds therein provided "in and through all the counties of this state," and was required to make the selection of the roads to be improved before the 1st of May, 1909. The commission was authorized to make such preliminary investigation, to do such preliminary work, and to adopt such means or system of roads construction, etc., as in its judgment was best calculated to promote the objects of the act * * "condemn, lay out, open, establish, construct, extend, widen, straighten, grade and improve, in any manner, any main road, of the system, in any county of this state and establish or fix the width thereof; cause to be prepared such surveys, plans, drawings or maps as it may deem proper in the course of its work; acquire for the state of Maryland, by agreement, gift, grant, purchase or condemnation proceedings, * any private road or roads whatsoever, or private property or rights of drainage for public use, whether belonging to private individuals or to turnpike companies or other corporations, and including any avenues, roads, lanes or thoroughfares, rights or interests, franchises, privileges or easements, that may be, in its judgment, desirable or necessary to complete said system of roads or to carry out the purposes of this act; contract with any person or persons, company or corporation, either private or quasi public, or municipal, in furtherance of the duties and objects of this act or any of the same," etc. This section authorized and directed the commission to include in its work of improving the system of main roads of the state the improvement of such portions of the main roads selected by said commissions as a part of such system "as lie inside the limits of the city of Baltimore, up to the old city limits, provided that on completion of such improvements, the portions of the roads so improved within the city limits shall be city streets under the provisions of the city charter," and provided that: "Where rights, easements and franchises of the United Railways & Electric Company of Baltimore, its successors and assigns, exist upon any turnpike or private right of way in the annex which may be improved hereunder, then said rights, easements and franchises may (if the mayor and city council of Baltimore and said Railways Company, its successors and assigns fail to agree upon terms of purchase or surrender) be condemned by the mayor and city council of Baltimore under the provisions of chapter 274 of the Acts of 1904, and chapter 566 of the Acts of 1906, or in the exercise of its general powers of condemnation, the cost thereof to be defrayed out of the loan provided for in said first mentioned act, or out of the ordinary proceeds of municipal taxation: Provided, however, that the provisions of said act of 1906 shall be obligatory upon, and not discretionary with, the mayor and city council of Baltimore and the board of estimates, and the price to be charged for new rights, franchises and easements similar to those condemned, shall be the same as the amount of the condemnation award." Section 32c is as follows: "If the state roads commission shall determine that the public necessity or convenience, or that the purposes of this act require that any turnpike, or part thereof, whether maintained as such by any turnpike company or otherwise, or whether formerly maintained as such and now abandoned by any turnpike company, or that any public road in whole or in part in any county or counties, and forming a section of a through route or continuous thoroughfare between two or more important points in this state, should be taken charge of by said commission for the state, for the purposes of this act, then, as to such public road or abandoned or acquired turnpike, whether acquired by purchase or condemnation, the said commission shall file a certified copy of the plan thereof in the office of the county commissioners for the county or the several counties in which said section or sections of road or turnpike may be situated, and setting forth its purpose to acquire and to take over the same, and said commission thereupon, without any further procedure, shall acquire and take over any such and all county roads, turnpikes or sections thereof or interests or rights therein, as in its judgment, may be necessary or proper for the purpose of this act, and with full power to widen, relocate, change or alter the grade or location thereof; and said commission shall have full power so to take over and take possession of any county road or abandoned turnpike, and to accept by gift or surrender, and to acquire by purchase or condemnation, any and all existing turnpikes or any sections thereof, or any rights or interests therein, subject to any outstanding occupation, use or franchise of any electric railway company or other public service corporations; and thereafter all highways, however acquired hereinunder, shall be state highways and shall be constructed, improved and maintained by said commission for the state and at its expense, except as provided in section 32b." Section 32e provided: "That said commission shall keep all state highways reasonably clear of brush and maintain same in good condition; shall cause suitable shade trees to be planted thereon, if practicable, and may establish and maintain watering troughs upon said highways. No opening shall be made in any such highway, nor shall any structure be placed thereon, nor shall any structure which has been placed thereon be changed or renewed, except in accordance with a permit from the commission, which shall exercise complete control over such highways, except as herein otherwise provided. No state highway shall be dug up for laying or placing pipes, sewers, poles, wires or railways, or for other purposes, and no trees shall be planted or removed or obstruction placed thereon without the written permit of the state roads commission, or its duly authorized agent, and then only in accordance with the regulations of said commission; and the work shall be done under the supervision and to the satisfaction of said commission; and the entire expense of replacing the highway in as good condition as before shall be paid by the persons to whom the permit was given or by whom the work was done: vided, however, that no electric railway company in operation upon any public or private road or existing or abandoned turnpike when acquired hereunder shall be disturbed in its operation or in the maintenance of its roadbed and overhead construction and all necessary repairs, together with the maintenance of the space between its tracks and two feet on each side thereof shall be performed by such railroad company under the supervision and to the satisfaction of said commission. Said commission may give suitable names to the state highways and may change the name of any highway which Pro In 1910 the Legislature passed an act (chapter 116) "enlarging the powers of the state roads commission as created by chapter 141 of the Acts of" 1908, and "providing, also, for the enlargement of the work of said commission and making the necessary appropriations of money; and for an additional bond issue for the purpose of carrying out the provisions of this act." This act authorized the commission to acquire, construct, and maintain bridges for the purpose of making connection between any highways or parts of any highway constructed and improved by it, to acquire by purchase, condemnation, or otherwise the Conowingo bridge across the Susquehanna river, to build a bridge across the Nanticoke river, and to construct a highway to be known as the Annapolis and Baltimore boulevard, and provided that: "Nothing in any of the foregoing sections or in the provisions of any act adding to or supplementing chapter 141 of the Acts of 1908 (creating the state roads commission) shall be construed as modifying or changing the provisions of said last named act, in so far as the same define and regulate the rights of any electric railways company in operation upon any public or private road or existing or abandoned turnpike.' And further providing that: tracks so as to conform with the adjacent road- The The agreement of counsel filed in the case states that, after the execution of the above agreement, "certain members of the state roads commission took the position that its terms were broader than they had intended them to be; that they had not intended to bind the commission in regard to roads other than the three roads specified by name in said contract, namely, York, Baltimore and Harford, and the Baltimore and Jerusalem Turnpike Roads; that they thought that the Railways Company ought to enter into a supplemental agreement so that, as to the roads other than the three roads which the Railways Company had agreed to procure to be turned over to the commission, the rights or obligations of the commission in regard to the Railways Company's structures thereon should be passed upon and determined by on should be passed upon and determined by the courts. The Railways Company's position was that the agreement of April 29, 1909, was understood by the parties thereto and was intended to be exactly as it was. company agreed, however, to make a supplemental agreement as requested by the commission." The Railways Company and the commission accordingly entered into a supplemental agreement on the 7th of July, 1910, by which they agreed that the agreement of April 29, 1909, should be applicable to the roads referred to, "and that, as to all other roads on which the United Railways & ElecOn the 29th of April, 1909, the commis- tric Company has or operates any tracks, the sion and the United Railways & Electric state roads commission shall proceed with Company of Baltimore City entered into an such improvements or works as it may deagreement by which the Railways Company, termine to make, subject to the provisions of "to the extent of its ownership and interest chapter 141 of the Acts of 1908 and any acts in the Harford, the Baltimore and Jerusalem, of the General Assembly supplementary and the York Turnpike Roads," agreed that thereto; it being particularly agreed that as the same should be transferred to the com- to all such other roads last aforesaid the said mission without charge other than the cost, commission shall, in the first instance, pay if any, of perfecting the title, "subject, however, to any and all railway easements and rights of way now existing," and subject to the further provisions of the contract, among which were the following: "Whenever any state road crosses the grade of the line of any railroad worked by steam or other power, the state roads commission shall have the power to contract with such railroad for the construction of any bridge, archway, or culvert that may be needed for the purpose of any overgrade or undergrade crossing; and to provide by contract or otherwise for the maintenance thereof: Provided, that one-half of the construction cost of such bridge, archway, culvert or roadbed shall be paid for by the railroad and one-half by the state roads commission." "Where any tracks owned or operated over by the company now exist on any road which the commission may acquire and improve, all changes made necessary by the work of the commission shall be done by the company to the satisfaction of the commission and the expense incurred shall be paid by the commis the costs and expenses of all changes in the tracks, roadbed and overhead construction of the said Railways Company, caused by the works or improvements made by the said commission, and that the ultimate liability for the costs and expenses of said changes shall be determined by the courts according to law." The agreement further provided that, as to all other roads than those mentioned in the agreement of April 29, 1909, the work of changing said tracks, roadbed, "The company shall duly keep in repair the and overhead construction of the company space between the rails of its tracks and the should be done by the company under the two-foot adjacent space, as provided by the State Roads Law; but, except by mutual agree- supervision and to the satisfaction of the ment, it shall not be disturbed in the use of commission; that the payments to be so ador required to change, the existing character vanced by the commission should be made on of its rails, ties, ballast, roadbed or overhead construction; but the company will, at the re- the 15th day of each month, and for the quest of the commission, lower or raise its amount of the costs and expenses as shown sion.' by vouchers, approved by a responsible offi- | Brooklyn, $3,839.66; on Maryland avenue, cial of the company and furnished by the Westport, $5,112.82; miscellaneous, labor and company to the commission not later than material, $589.89-amounting in the aggrethe 8th day of each month, and approved by gate to $38,897.03; that the changes and rethe commission, "to have been actually in- locations referred to above as having cost curred for the changes in the tracks, road- $87,916.68, the amount which the commission bed, and overhead construction of said Rail- now seeks to recover, were necessitated by ways Company during the calendar month the plans and specifications adopted by the last preceding the 15th day of each month commission for the improvement of the sevaforesaid caused by the works and improve- eral roads mentioned; and that the work was ments made by the commission upon said done in compliance with said specifications roads, and the further and additional sum and the orders of the commission. of 10 per cent. upon the amount of said actual costs and expenses for each said calendar month for tools and supervision provided by said Railways Company." Under the supplemental agreement referred to, the commission undertook the improvement of the Falls Road, in Baltimore county and Baltimore city; the Baltimore and Liberty Turnpike Road, within the present limits of Baltimore city, known as Garrison avenue; First street in Brooklyn, Anne Arundel county; and Maryland avenue, in Westport, Baltimore county. In reference to each of these roads, the commission and the Railways Company entered into a further agreement specifying the changes to be made by the Railways Company in the location, grade, rails, and construction of its railway, so as to conform to the specifications and requirements of the commission, and further agreeing that the cost of said changes should be paid by the commission, and that the ultimate liability therefore should be judicially determined. This suit was brought by the commission in the superior court of Baltimore city to recover from the Railways Company the amounts paid by the commission to the company in accordance with the agreements referred to. In the agreement of counsel it is stated that the commission expended, for the relocation of the tracks and structures of the Railways Company on the roads mentioned, the following amounts: On Falls Road, in Baltimore county, $25,209.75; on Falls Road, within the present city limits, $4,306.32; on the Baltimore and Liberty Turnpike Road, now Garrison avenue, $40,972.54; on First street, Brooklyn, $10,616.66; on Maryland avenue, Westport, $6,811.44-which amount in the aggregate to $87,916.68; and it was agreed that if the court should find for the plaintiff, "in whole or in part," the above figures should be used by the court "as a basis upon which the amount" of its judgment should be ascertained. It was further agreed that, by reason of the changes and relocations of the company's tracks, roadbed, and structures required by the commission, the company incurred the cost of additional changes in its tracks, etc., for which it makes no claim against the commission, to the following amounts: On Falls Road, $16,382.39; on the Baltimore and Liberty Turnpike Road (Garrison avenue), $12,972.31; on First street, Prior to the passage of the act of 1908 (chapter 141), "and until the time the structures of the railways were removed at the instance of the state roads commission, the Railways Company maintained its tracks and structures upon" the roads hereinafter mentioned, as to which the "agreement as to facts" contains the following statements: "The defendant's structures in Baltimore county were located under and in accordance dent, managers, and company of the Falls Turnwith grants executed in 1897 from the presipike Road, the said grants setting forth a consideration of $5,000 and purporting to convey the right to the Falls Road Electric Railway Company to construct, maintain, and operate its railway, and also under and in accordance with the charter of said company. The charter of the Maryland Traction Company, which amended by the act of 1896 (chapter 360), which was incorporated under the General Law, was changed its name to the Falls Road Electric Railway Company, and gave certain additional powers to that company. The rights of this company, as well as the rights of the other railway companies referred to in this agreement, are now vested in the defendant, the United Railways & Electric Company of Baltimore. tered by the act of 1804 (chapter 91), for the The Falls Road Turnpike Company was charpurposes set forth in its charter. Some years thereafter the Falls Road Turnpike Company abandoned the turnpike road, moving its gates therefrom, and the state roads commission took over and acquired it as an abandoned road. *** The mayor and city council of Baltimore acquired the portion of Falls Road withpresident, managers, and company of the Falls in the present city limits by deeds from the Turnpike Road to the mayor and city council of Baltimore. The railway structures upon the Falls Road, within the present city limits, were constructed and maintained under an ordinance of the mayor and city council of Baltimore, Ordinance No. 105 of 1896, p. 53." "One of the tracks of the Railways Company Baltimore city, now known as Garrison avenue, on the Baltimore and Liberty Turnpike Road in was constructed under and in accordance with grants from the Baltimore and Liberty Turnpike Road in 1894 to the Baltimore Traction the said company the right to construct, mainCompany, said grants purporting to convey to tain, and operate its railway, and under and in accordance with the charter of said company. The Baltimore & Liberty Turnpike Company was chartered by the act of 1860 (chapter 274). This charter was amended by the act of 1902 (chapter 203). The other track of the Railways Company, upon what is now Garrison avenue as widened, was located and maintained along and to the side of the turnpike under and in accordance with grants acquired from property owners of the property abutting upon the turnpike road. Where the Railways Company's structures have been relocated along the Liberty Road (that is, upon Garrison avenue as widened), the structures have been moved, so that both tracks are now located in the center of the |