Lake Roland Elevated Railway Co. v. Mayor of Baltimore

Bryan, J., delivered the opinion of the Court. It has been for a long time recognized as the law that the Mayor and City Council of Baltimore have full and complete control over the streets and highways of the city. It had been considered, however, that certain uses could not be made of them Avithout the sanction of an Act of the General Assembly. For this reason the Legislature saAv fit to enlarge the corporate powers of the city.

The Act of 1890, chapter 370, entitled “An Act * * * giving the Mayor and City Council (of Baltimore) authority to regulate the use of the streets, lanes and alleys of said city by railway or other tracks, &c., &c., &c.,” provided as follows: “The Mayor and City Council of Baltimore shall have poAver to regulate the use of the streets, lanes and alleys in said city ³⁶⁵ by railway or other tracks, gas or other pipes, telegraph, telephone, electric light or other wires and poles, in, under, over or upon the same, and may require all such wires to be placed under ground, after such reasonable notice as they may prescribe.” Under the authority of this Act the City Council passed Ordinance No. 23, approved April 8th, 1891. This ordinance permitted the North Avenue Railway Company to lay down tracks on certain of the streets of Baltimore, including Lexington street from North street westward to Charles street. It also permitted the erection of an elevated railway on a portion of North street. As the City Council had no power to authorize an elevated railway it became necessary to obtain the ratification of this part of the ordinance by the Legislature.

The Act of 1892, chapter 112, after reciting that “before the said North Avenue Railway Company of Baltimore City can elevate its tracks on North street as aforesaid, it is required by law that the sanction of the General Assembly of Maryland should be given to said ordinance so far as it relates to said elevation of its tracks,” enacted that the ordinance should be ratified and confirmed, and that the ratification should “have the same effect as if the Mayor and City Council of Baltimore, at the time of the passage of said ordinance, had been fully authorized by the General Assembly to pass said ordinance, and to grant each and all of the powers and privileges therein contained; the said Mayor and City Council to have the same power and control hereafter in reference to the enforcement, amendment or repeal of said ordinance as it lias or would have in respect to any ordinance passed under its general powers.” Ordinance No. 1, approved November 18, 1892, “repealed that portion of Ordinance No. 23 wdiich authorized the double tracks on Lexington street, but permitted the laying of a single track on certain conditions. It must be mentioned ³⁶⁶ that hy due proceedings the Lake Roland Company has been invested with all the rights and franchises of the North Avenue Company. The tracks have been laid under circumstances which will hereafter be stated. The question now presented to the Court is whether the City Council had power to pass the ordinance of November 18th, 1892.' Before we proceed to the investigation of this question we must bear in mind that it has been solemnly adjudged by this Court that the Mayor and City Council of Baltimore, cannot abridge its own legislative powers.

State vs. Graves, Collector of Baltimore, 19 Md., 351 ; Rittenhouse vs. Mayor, &c., of Baltimore, 25 Md., 337. In State vs. Graves (just mentioned) the Court refer to the opinion of the learned Judge Martin in the Superior Court of Baltimore as “cogent, clear, comprehensive and well sustained by the authorities,” and as “a sound exposition of the’law,” in which it entirely concurs. In his opinion Judge Martin says: “It is clear that the Mayor and City Council has no power by any contract or covenant, or by any ordinance, by-law or resolution, to restrain or abridge its own legislative capacities.” This matter will be considered more fully hereafter; but it is important at present to examine critically these two ordinances, for the purpose of ascertaining whether any circumstances exist which prevent the application of the principle which we have mentioned. Ordinance No. 23 authorized the construction of double tracks from the intersection of North avenue and McCulloh street over a number of streets to the intersection of North and Lexington streets, and thence on Lexington street to Charles.

It also authorized an elevated railway from the corner of Eager and North to the corner of North and Saratoga. It was also enacted that the railroad company should be liable to the payment of the park tax, which was imposed hy Act of ³⁶⁷ Assembly on the horse railway companies, and that it should have the right to propel its cars by electricity, cable or other improved motive power; but that it should not be allowed to use steam motive power on any part of its railway. It was also enacted that the cars of the company should not travel on any of its tracks lying to the east of Pennsylvania avenue at a greater rate of speed than ten miles an hour, exclusive of stoppages, except while on the elevated track on North street, when the speed might be increased to fifteen miles an hour, and that on its tracks lying to the west of Pennsylvania avenue the speed should not be greater than fifteen miles an hour. A number of other regulations were made concerning the rate of fare, and the mode in which the tracks should be laid, and the road operated and conducted, and concerning the keeping in repair the portions of pavement between its tracks and two feet on each side of them.

It was very strenuously insisted at the argument that this ordinance was a contract by which the Mayor and City Council were irrevocably bound; and many authorities were quoted and pressed upon the Court for the purpose of sustaining this position. They have been very carefully and attentively considered with a due sense of the great importance of the question involved. Among other cases, great reliance was placed on People vs. O’Brien, et al., 111 New York, 1; and certainly in that case the Court did hold that the Common Council of the City of New York had granted to the Broadway Surface Railroad Company a right to lay tracks and run cars over Broadway from the Battery to Fifteenth street, which conferred on the railroad company an estate in perpetuity in Broadway, and that the railroad’s right was property within the usual and common signification of the word. But the nature of the transaction between the Common Council of New York and the railroad company was very different from the ³⁶⁸ one now under consideration.

We learn from this opinion that under an amendment to the Constitution of 1874, the right to operate a railroad on the streets of any municipality is regarded as a privilege which should be disposed of for the benefit of the municipality to any one who would pay the highest price for it, and that such privilege may he indefeasibly acquired by contract; and that the payment of a considerable sum of money annually was one of the terms on which the privilege was granted to the Broadway Surface Railroad Company. It is also stated that legislation has sometimes required that these privileges should he sold by auction; and that now by the laws of 1866, it is in all cases obligatory on the municipalities of the State to sell them by auction to the highest bidder. This constitutional amendment wrought a very great change in the power of city governments over their streets, as may readily he seen by an examination of cases decided before the amendment went into effect. In Davis vs. New York, 14 New York, 506, and in Milhau vs. Sharp, 27 New York, 611, a grant by the Common Council of New York authorizing the construction of a railway in Broadway was held void.

The principle of decision in these cases was that a permanent grant of this kind divested the corporation of New York City of the exclusive control over the street, wdiich had been given to it as a trust for the use of the public, and which it was not competent to relinquish. New Orleans, &c., Railroad Co. vs. Delamore, 114 U. S., 510 , was also earnestly pressed upon us. In that case it was decided that when the City of New Orleans had granted a right of way over certain streets to a railroad company, it could not afterwards grant a similar right to another railroad company through and over the same streets, and along the same route. In estimating the hearing of this decision on the case before us, we. must bear in mind that the City of New Orleans has the power ³⁶⁹ to sell the right of way over its streets for the purposes of a railroad.

It was so held in Brown vs. Duplessis, 14 Louisiana Annual Reports, 842. The decision •of the Supreme Court of the United States just quoted held that the right of way being vested in the first grantee, could not be divested by a subsequent grant of the same franchise to another corporation. New Orleans Gas Company vs. Louisiana Light Co., 115 United States, 650, was also cited. The Legislature of Louisiana had incorporated a gas light company, and had granted it the exclusive privilege of vending gas lights in the City of New Orleans.

The Court held that the charter thus granted was a contract between the State and the corporators, and that its obligations were impaired by an ordinance of the City of New Orleans authorizing another ■corporation to lay mains and pipes in the streets for the purpose of supplying the public with gas. The differences are very striking between the laws of Maryland and those of New York and Louisiana on the questions •decided in the cases cited by the learned counsel. We are at present concerned with the chartered powers belonging to the City of Baltimore. In State vs. Graves, supra, the Mayor and City Council had passed an ordinance for widening Holliday street.

The assessment of damages and benefits was duly made and confirmed, „ and the commissioners for opening streets sold the materials in the houses which would be in the bed of Holliday street, when widened, and also sold portions of the lots which would be divided by the opening of the street. The ordinance was afterwards repealed. A purchaser of one of these lots filed a petition for a mandamus to compel the city authorities to proceed with the opening of the street in the same manner as if the repealing ordinance had not been passed. The opinion of'Judge Martin, in the Superior Court of Baltimore, (which was adopted by the Court of Appeals), stated ³⁷⁰ that as the State had made a delegation of local legislative powers to the city in its political capacity for public purposes, the right to repeal the ordinance, and arrest, the improvement at any stage of its progress, necessarily belonged to the city as an incident to its legislative power.

He recognized the fact that those who purchased property within the lines of the proposed widening of the street, did so under the promise and expectation that it would be widened, and that they had been materially injured by the repeal of the ordinance. The Court of Appeals in the same case said: “The Mayor and City Council are but trustees of the public; the tenure of their office impressed their ordinances with liability to change. They could not, if they would, pass an irrevocable ordinance. The corporation cannot abridge its own legislative powers.” But it also stated that the purchaser might recover damages for any loss sustained by failure of the city to execute its contract.

In Ritten-house vs. Mayor, &c., of Balto., 25 Md., 336 , an ordinance had been passed for the erection of an almshouse; and a contract had been made with the city acting through a duly constituted agent for the doing of certain brick-mason’s work, including the supply of bricks, lime and sand. After some of the work had been done, an ordinance 0 was passed declaring that the public good required the building to be discontinued, and repealing the ordinance which provided for the erection of the almshouse. Rittenhouse brought suit to recover damages for a breach of the contract made with him. This Oourt drew a clear and well defined distinction between contracts made by a municipal corporation in the character of a property holder, and those which arise out of the powers entrusted to it for public purposes.

It may he well to-quote the language of the Court on this point: “In considering the rights, powers, and liabilities of public municipal corporations, in respect to contracts made by ³⁷¹ them, regard must be had to the subject-matter to which such contracts relate, and the character in which the municipal body acts in making them. Where the corporation appears in the character of a mere property holder, and enters into a contract with reference to such property as any private citizen or other proprietor might do; or where it engages in an enterprise, not necessarily connected with or growing out of its public capacity, as a part of the local government; there all its rights and liabilities are to be measured and determined by the same rules as govern mere individual persons, or private corporations; and it cannot claim exemption or immunity from the legal liabilities growing out of its contracts by reason of its public municipal character. The cases of Bailey vs. The Mayor, &c., of New York, 3 Hill, 531 ; Masterton vs. The Mayor, &c., of Brooklyn, 7 Hill, 61 , and The Western Saving Fund Society vs. The City of Philadelphia, 31 Pa., (7 Casey), 175 and 185, are illustrations of this principle. See also, Moodalay vs. The East India Company, 1 Brown’s Ch.

R., 469. The same cases recognize a distinction between the rights and liabilities of municipal corporations growing out of contracts made by them, in their private capacity, as property holders, and those which arise out of the exercise of powers entrusted to them in their municipal characters exclusively for public purposes, with regard to which Courts have no power to review or control their acts, unless they transcend the limits of their delegated powers. In the case of The Presbyterian Church vs. The Mayor, &c., of New York, 5 Cowen, 538, which was an action by the church against the city upon a covenant for quiet enjoyment, the corporation had conveyed lands to the plaintiff for the purpose of a church and cemetery, with a covenant for quiet enjoyment; afterwards the corporation, in the exercise of a power delegated to it by an Act of the Legislature, passed a ³⁷² by-law prohibiting the use of the lands as a cemetery. It was held, that this was not a breach of the covenant which entitled the plaintiff to damages, but was a repeal of the covenant.

It was held, that a municipal corporatiou cannot, by contract, abridge its legislative power.” It was also held, that the contractor was entitled to recover any damages which he had actually sustained by reason of the contract while it was operative and in force; but not damages on account of profits which he might have made under the contract, if he had been permitted to go on with the work. It is perfectly well settled that a municipal corporation has a right to abandon any public improvement, and repeal at its pleasure any ordinance providing for the same; and property owners cannot compel it to take and pay for property-condemned for such purpose. The right of repeal is unquestionable, but if in the exercise of this undoubted right injury is inflicted upon the property hqlder, he can recover damages by action at law. It has even been held that an unreasonable delay in repealing the ordinance will give a cause of action if injury ensue; or an unreasonable delay by the city in determining whether it would take the property condemned.

Graff vs. Mayor, &c., of Baltimore, 10 Md., 544 ; Norris, et al. vs. Mayor, &c., of Baltimore, 44 Md., 606 ; Mayor, &c., of Baltimore vs. Musgrave, 48 Md., 272 . In Newton vs. Commissioners, 100 United States, 548, the Legislature of Ohio had passed an Act establishing the county seat of Mahoning County at Canfield, and providing that before it should be considered permanently established at that place the proprietors or citizens thereof should give bond with sufficient security payable to the commissioners of the new county, thereafter to be elected, for the sum of five thousand dollars to be applied in the erection of public buildings for the county, and that the citizens of Can-field should also donate a suitable lot of ground for the ³⁷³ erection of public buildings. The bond was given as required, a suitable lot of ground was conveyed to the county, and the citizens at a cost of more than ten thousand dollars erected on the lot a commodious Court house suitable for the transaction of the public business, which the commissioners accepted in full satisfaction of the bond, and as a full compliance with the Act; and thenceforward Canfield became the county seat. Nearly thirty years afterward the Legislature passed a statute for the removal of the county seat to Youngstown.

On a petition for an injunction to restrain the County Commissioners from removing the county seat, one of the questions was whether it was competent for the State to enter into such a contract as was alleged to have been made. The Supreme Court held that although there were cases in which a State might lay aside its sovereignty, and contract like an individual and be bound accordingly, it could make no contract and pass no irrepealable law about “governmental subjects.” Speaking of the Dartmouth College Case it said: “The principle there laid down and since maintained in the cases which have followed and been controlled by it, has no application where the statute in question is a public lato relating to a public subject within the domain of the general legislative power of the State, and involving the public rights and public welfare of the entire community affected by it. The two classes of cases are separated by a broad line of demarcation.” Andina subsequent part of the opinion speaking of legislative acts concerning public interests, the Court said: “Every succeeding Legislature possesses the same jurisdiction and power with respect to them as its predecessors. The latter have the same power of repeal and modification which the former had of enactment, neither more nor less.

All occupy in this respect a footing of perfect equality. This must necessarily be so in the nature of things. It is vital to the ³⁷⁴ public welfare that each one should be able at all times to do whatever the varying circumstances and present exigencies touching the subject involved may require. A different result would be fraught with evil.” In Illinois Central Railroad Company vs. Illinois, 146 U. S., 387 , the Legislature of Illinois by an Act passed in 1869 had granted to the Illinois Central Railroad Company all the right and title of the State of Illiuois to submerged lands constituting the bed of Lake Michigan for the distance of a mile into the lake.

It was stipulated that the railroad company should pay to the State seven per cent, of the gross receipts from the use, profits and leases of the lands granted, or the improvements thereon, or that might be made thereon, and that in conjunction with three other railroad companies (to whom grants were made in the same Act) it should pay eight hundred thousand dollars to the City of Chicago, in instalments of two hundred thousand dollars each. The first instalment of two hundred thousand dollars was tendered by the four companies but was refused by the city. The railroad company erected piers and expended a large sum of money in the improvement of the property granted by the Act of the Legislature. In 1873 the Legislature of Illinois repealed the Act making this grant.

The question for the Court was whether the repealing Act was valid. It was held to be valid. In the course of its opinion the Supreme Court said: that the ownership of lands lying under the ' navigable waters of the great lakes, and the dominion and sovereignty over them, resided in the States within whose limits they were included: that a State could not abdicate its general control over such lands; that such abdication was not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public; that this trust could be discharged only by the management and control ³⁷⁵ of the property, and could not he relinquished by a transfer of it; that the control of the soil and beds of navigable waters was held by the people in trust for their common use, and of common right as an incident to their sovereignty; that the Legislature could not give away nor sell the discretion of its successors in respect to matters, the government of which from the very nature of things must vary with varying circumstances; that every Legislature must at the time of its existence exercise the power of the State in-the execution of the trust devolved upon it; and that there could be no irrepealable contract in a conveyance of property by a grantor in disregard of a public trust under which he was bound to hold and manage it. The decree was that such portions of the piers erected by the railroad company should be removed as extended beyond the point where the navigable waters of the lake commenced.

In 1850 the Legislature of Illinois had given the railroad company a right of way two hundred feet in width, but enacted that it should not make a location of its track within any city without the consent of the Common Council. The Common Council of Chicago in 1852 gave its consent upon certain terms to the construction of the track within the limits of the city, and along the margin of the lake; and the track was located and the road constructed. The case involved no question in reference to the occupation and use of this track, and no question of the kind was decided. We may mention another ease which has a hearing on the present one.

In Goszler vs. Georgetown, 6 Wheaton, 593 , it appeared that the corporation of Georgetown had passed an ordinance by which it was enacted that a level and graduation which had been made for certain streets should he binding on the corporation, and all other persons whomsoever, and be forever thereafter regarded in making improvements on said streets. The plaintiff owned lots ³⁷⁶ on one of these streets, and made improvements on them according to the graduation which had been made; and afterward the corporation passed another ordinance