Mayor of Baltimore v. Flack

McSherry, C. J., delivered the opinion of the Court. In 1904 the General Assembly of Maryland adopted an Act known as Chapter 274. The title of that Act is in the words following: “An Act to authorize the Mayor and City Council of Baltimore to issue its certificate of stock to an amount not exceeding two million dollars for the purpose of providing the money to pay the costs and expenses of condemning, opening, grading, paving and curbing the streets, avenues, lanes and alleys of the annex portion of Baltimore City; and to authorize the appointment of a commission, to be known as the ‘Annex Improvement Commission,’ and to define the duties of said commission.'” Section one provides for the issue of certificates of city stock to the extent of two millions of dollars, out of the.proceeds of which are to be defrayed the costs and expenses incurred in “condemning, opening, grading, paving and curbing the streets, avenues, lanes and alleys of the annex portion of Baltimore City.” By section two the Mayor of Baltimore City is authorized to appoint four persons who with certain designated city officials were to constitute a commission to be known as the “Annex Improvement Commission,” and the duties of that commission, in so far as they concern the pending litigation, are defined in sections three, five and seven of the statute. Section three enacts, “That said Commission shall have the right and power to condemn, layout, open, extend, widen, straighten, close, grade and pave any street, avenue, lane, or alley or any part thereof, from curb to curb; and to establish and fix the building line and the width of the sidewalks on any street, avenue, lane or alley now existing or to be laid out, opened, extended, widened, ¹¹¹ straightened, graded or paved in the annex portion of the city of Baltimore.

That said commission shall have full powers necessary and proper in the exercise of said powers; and the Mayor and City Council of Baltimore are hereby authorized and empowered to grant by ordinance any further powers and duties it shall deem necessary for the proper execution of the improvements intended to be made by this Act.” Section five constitutes the commission the agent of the Mayor and City Council for the acquisition of property required to open, widen * * * grade or pave any street; whilst section seven authorizes and empowers the commission to contract with any person, company or corporation for the work of opening, grading, curbing and paving the streets, avenues, lanes and alleys of the annex as intended by the Act, or to employ the necessary laborers, help and assistance, skilled and unskilled, and perform the work under their own supervision. Section ten, which is especially assailed in these proceedings, is in these words: “Provided, however, in lieu of said commission hereinbefore provided for in section 2 of this Act, the Mayor and City Council may by ordinance authorize and empower the Commissioners for Opening Streets of Baltimore City to perform the duties and functions in this bill heretofore provided for the said commission.” This Act gives rise to some of the questions with which we are required to deal, and they will be stated and discussed later on. In execution of the power conferred on the city by the above-mentioned Act of Assembly, the Mayor and City Council adopted an ordinance known as Ordinance No. 216, approved March 6th, 1905. By that ordinance sundry provisions were made, but we are concerned only with those contained in sections six and seven.

By section six it was ordained by the Mayor and City Council of Baltimore: “Pursuant to the powers conferred upon it by sec. 10 of ch. 274 of the Acts of the General Assembly of Maryland in the year 1904, that the Commissioners for Opening Streets be and they are hereby authorized and empowered and directed, * * * ■ ¹¹² to perform the duties and functions in said Act provided for the Annex Improvement Commission.” Section seven, amongst other things declares, “that in grading, paving and curbing streets, avenues, lanes, alleys, or parts therof * * * the proceedure of said Commissioners for Opening Streets shall be that now or hereafter prescribed by law in relation to the respective duties and powers of the same nature with which the City Engineer and other officers of the city are now respectively clothed.” These two sections of the ordinance are alleged to be invalid; and they give rise to some of the other questions involved. Acting under ch. 274 and Ordinance 216 the Commissioners for Opening Streets advertised in the month of April, 1906, for separate sealed proposals to be addressed to the Board of Awards, to curb, gutter and pave with asphalt block, bitulithic or vitrified brick pavement, Twenty-fifth street from the York Turnpike Road to Oak street, in accordance with separate specifications, plans and profiles drawn for each of the three kinds of pavement, and then on file in the office of the Commissioners for Opening Streets. Twenty-fifth street is in the annex portion of Baltimore City. Bids were submitted by different parties for doing the work with each of the specified materials.

When the bids were opened the bid of the Barber Asphalt Paving Company was rejected because it was not framed in accordance with the prescribed specifications, and thereupon the Commissioners for Opening Streets selected bitulithic as the material with which the paving was to be done; and then the Board of Awards awarded the contract to Warren Brothers Company at the price of two dollars and eighteen cents per square yard of bitulithic pavement, that being the lowest price bid on that material, although the lowest price bid on vitrified brick was two dollars and nine cents per square yard. The bid on the asphalt block pavement was two dollars and sixty-five cents per square yard. A contract was then entered into between the Warren Brothers Company and the city for the laying of a bitulithic pavement on the street named at the price bid. by that company. After ¹¹³ the work under the contract had been commenced two bills in equity were filed in the Circuit Court of Baltimore City by certain taxpayers of the city to procure a decree annulling the contract which had been entered into, and to obtain an injunction restraining the city, its officers and agents and the Warren Brothers Company from proceeding to lay the pavement under the contract.

Both of those bills attacked the constitutionality of the Act of 1904,' and assailed the validity of secs. 6 and 7 of Ordinance No. 216. The bills also, by way of an alternative ground of relief, asserted that under secs. 14. and 15 of the Charter of Baltimore City which will be fully stated later on (Act of 1898, ch. 123), the commissioners had no authority to put different paving materials in competition with each other and no power after the bids on those materials had been opened, to select one of those materials for the paving, unless they selected the one upon which the lowest price of all the prices submitted, was bid. The Circuit Court upheld the Act of 1904 and Ordinance 216 but decided that secs. 14 and 15. of the City Charter had not been complied with in awarding the contract, and, consequently, decreed that the contract with the Warren Brothers Company was invalid because their’s was not the lowest of all the submitted bids. An injunction restraining the prosecution of the work under that contract was issued; and the work was arrested and the city and the Warren Brothers Company appealed.

Owing to. the fact that Twenty-fifth street had been torn up before the injunctions were granted and was in an almost impassable condition on that account; and to the further fact that a delay in hearing the cases on appeal until the beginning of the October-Term of this Court would most probably have suspended all paving operations in the Annex until the spring of 1907, this Court assembled in special session at the request of all the litigants on the eighth of August last and heard these and one-other paving cases. A decree was signed the following day reversing the decree appealed against, the injunctions were dissolved and the bills of complaint were dismissed. We now ¹¹⁴ proceed to give our reasons in support of the conclusions which were briefly announced on August the ninth, r There are three distinct groups of questions presented by the record; and these are: First, those" which relate to the Act of 1904; secondly, those which concern Ordinance No. 216; thirdly, those with respect to which secs. 14 and 15 of the City Charter have been applied by the Circuit Court. Plach of these groups comprehends several distinct inquiries which will be separately considered and determined in so far as that is practicable.

First. Let us. now turn to the Act of Í904, ch. 274. (a) Is it invalid because in conflict with secs. 29, Art. 3 of the State. Constitution as contended by the appellees?

(b) If not invalid, what is its scope and what is the extent of the powers, which it confers? (a) The specific proposition advanced by the assailants of the Act of 1904 is this: That section ten of the Act is not described in, but conflicts with the title of the Act,- and is therefore void under Art. 3, sec. 29 of the Constitution. By the constitutional provision just mentioned it is declared: “Every law enacted .by the General Assembly shall embrace but one subject, and that shall be described in its title?”- This declaration of the organic law has been before the Court of Appeals in no fewer than forty-five cases since its incorporation into the Constitution of 1851; and in less than one-fourth of those instances has ■ an Act of Assembly been stricken down by reason of its being in conflict with that provision. ' It is only the subject to the Act which must be described in the title, and neither the details of the legislation nor the means or instrumentalities by which-the subject is to be carried into effect constitute the subject of the Act. The title of the Act of 1904 describes the subject of the Act to be an authority given to the city to raise a sum of money with which to pay the costs of condemning, opening, grading, paving and.curbing the streets, avenues, lanes and alleys of the annex, including an authority to appoint a commission to be known as the “Annex Improvement Commission,” whose ¹¹⁵ duties were to be defined in the Act.

Neither the details with respect to the method to be followed to raise the two millions of dollars named in the title; nor the details with relation to the appointment, the number, the qualifications or the personnel of the commissioners; nor the details concerning their duties were stated in the title or were required to be set forth therein. The authority to do the things indicated, is the subject of the Act, whilst the manner of doing those things is not attempted to be specified in the title and would have been wholly out of place if it had been; since the manner of doing them is a mere matter of detail concerning, not the subject itself which is the authority to do the things, but the method of exercising that authority. Undoubtedly under the title the appointment of a commission, to be known as the Annex Improvement Commission, was provided for, but there is not a word in the title to indicate that the Act prescribed a particular method of appointment or designated particular individuals to compose the commission to the exclusion of some other method or some other individuals; and that being so, there is nothing in the title to indicate that the body of the Act might not contain alternative methods of appointment, or might not include provisions permitting some existing municipal board to act as such Annex Improvement Commission. The tenth section of the Act of 1904, which has been quoted hereinbefore, provides an alternative method differing from that prescribed in the second section.

If the second section had been omitted from the Act, and if so much of the tenth had been inserted in its place as was required to constitute the Commissioners for Opening Streets the Annex Improvement Commission, can it be pretended that the body of the Act would have been in conflict with or would not have been covered by the title? And so, if the tenth section had not been incorporated in the Act, no one would venture to suggest a doubt as to the Act and the title being harmonious. The reason why in each of the supposed instances the Act would have been free from the objection of being in conflict with sec. 29 of Art. 3 of the Constitution is, that the title is sufficiently broad and un ¹¹⁶ restricted to include either the one or the other of the two methods of appointment, and as neither was specified in the ti,tle either could have been inserted in the body of the Act. It is precisely because either of the two methods could have been validly prescribed in the body of the Act under the title, that both—the one as the alternative of the other—would be likewise strictly in consonance with the same title.

As there is no restriction in the title as to the method of making the appointments or as to the personnel of the commission to be appointed, the General Assembly was at perfect liberty to prescribe in the body of the Act any method it pleased, including alternative method?. Our predecessors had occasion to interpret this constitutional provision for the first time in Davis v. The State, 7 Md. 161 , and in the course of their judgment they used this apposite language: “The object of this constitutional provision is obvious and highly commendable. A practice had crept into our system of legislation, of .engrafting upon subjects of great public benefit and importance, for local or selfish purposes, foreign and often pernicious matters, and rather than endanger the main subject, or for the purpose of securing new strength for it, members were often induced to sanction and actually vote for such provisions, which if they were offered as independent subjects, would never have received their support. ■ In this way the people of our State, have been frequently inflicted with evil and injurious legislation. Besides, foreign matter has often been stealthily incorporated into law, during the haste and confusion always incident upon the close of the sessions of all legislative bodies, and it has not unfrequently happened, that in this way the statute books have shown the existente of enactments that few of the members of the Legislature knew anything of before.

To remedy such and similar evils, was this provision inserted in the Constitution, and we think wisely inserted.” This exposition of the object of the constitutional provision delivered three years after the adoption of that provision-, was followed less than five years later by the decision in Parkinson v. The State, 14 Md. 184 , wherein ¹¹⁷ the distinction was pointed out between subject of a penal enactment—which must be stated in the title—and the means by which the legislative intention was to be accomplished—which need not be described in the title. The case arose on an indictment which charged the traverser w'ith having given to a minor certain fertnented liquor in violaton of the provisions of the Act of 1858, ch. 55. The title of that Act was: “An Act to prohibit the sale of intoxicating liquors in the city of Annapolis, or within five miles thereof, to minors and people of color;” and the body of the Act made it unlawful for any person “to sell, dispose of, barter or give” any spirituous or fermented liquors to any youth or minor without the written order of the parents and guardians of such minor. The contention was that as the title was restricted to the sale of liquors the provision in the body of the statute prohibiting the giving of liquors was not included in the title and was therefore void.

But the Court held that it was the manifest intention of the legislation to prohibit or restrain minors and people of color from obtaining intoxicating liquors—that was the subject of the law. “Prohibiting the sale of it to them,” said the Court, “is only one of the means by which the chief intention of the Legislature was to be accomplished. Employing other means, designed to effect the same purpose, cannot bé properly considered the introduction of another or different subject, within the meaning of the constitutional "restriction. If it were so, no law providing several modes for effecting its main purpose, would be valid in all its provisions.” When the cases in which it has been held that legislation was invalid, because in conflict with sec. 29 of Art. 3 of the Constitution, are examined, it will be found, either that something wholly repugnant to the title, or something altogether foreign to the subject described in the title had been attempted to be incorporated in the body of the Act, in flagrant disregard of the principle announced in Davis v. The State, supra. For example: In Steifel et al. v. Md. Ins., &c., 61 Md. 144 , affirmative legislation was attempted under a title which disclosed absolutely nothing except the repeal of a former Act.

The ¹¹⁸ same condition was presented in The State v. Benzinger, 83 Md. 481 . Another instance of the insertion in the body of the Act of provisions wholly repugnant to the title is, Whitman v. The State, 80 Md. 410 , where the title purported to regulate the sale of liquor and- the enactment prohibited the sale. There are several cases which illustrate the vice of incorporating in the Act something altogether foreign to the subject described in the title. Thus in Scharf v. Tasker, 73 Md. 378 , under a title to provide for the assessment of the unclaimed military lots in Allegany and Garrett Counties, a section of the Act which exempted Garrett County from the obligation of paying fees to the Commissioner of the Land Office then due for searches previously made, was stricken down.

And in State v. Schultz Co., 83 Md. 58 , the title had relation to newly incorporated companies, whilst the Act included existing companies. In Luman v. Hitchins Bros., 90 Md. 15 , the title prohibited sales to employes, whilst the Act prohibited sales to anyone. These and all the cases on this subject in our Reports show that this Court-has never leaned towards a narrow interpretation of see. 29, Art. 3 of the Constitution and we are unwilling now after the lapse of more than half a century since the decision of Davis v. The State, to bring, by a' strained construction, under the penalty of its prohibition, statutes which are not within the obvious evils and mischiefs that its adoption as a part of the organic law was designed to obviate. Looking, as we must, to the object which the framers of the Constitution and the people who ratified it had in view when the clause in question was adopted, we have no hesitation in holding that section ten of ch. 274 of the.

Acts of 1904 is valid and that the attack made upon its constitutionalty cannot be permitted to prevail. We have gone much more extensively into a consideration of this branch of the case than ordinarily would be deemed necessáry; and we have done so, not because we entertain the faintest doubt as to the correctness of the conclusion which we reached and announced in respect to the constitutionality of section ten after the close of ¹¹⁹ the argument, but because the learned counsel of the appellees placed such great reliance on this objection to its validity in his admirable, exhaustive and exceedingly able presentation of the case. (b) The Act of 1904 being free from any constitutional infirmity, what is its scope and what is the extent of the powers which it confers? It must be remembered that it relates to condemning, opening, grading, paving and curbing of the streets avenues, lanes and alleys situated exclusively in the annex portion of Baltimore City; and it is perfectly obvious that it was designed to establish a radically different system for that locality from the one which was provided in the City Charter and the city ordinances for the doing of similar work within the original city limits.

The General Assembly had the power to adopt such an enactment, since its legislative authority is supreme, unless restricted by the Constitution; and no restriction can be found in the organic law which would inhibit the passage of that statute. The reasons and the motives which influenced the Legislature to create, for the annex, this independent system are not material. The only inquiries with which the Courts are concerned are: Was a separate and distinct system provided? Fiad the legislature the power to establish it?

What is the scope and what are the details of that system? A mere glance at the title of the Act of 1904 and at such of its provisions as have been hereinbefore alluded to, is all that is needed to furnish an affirmative answer to the first of these- three inquiries. If the Legislature had intended that the paving in the annex should be done in accordance with the requirements of the City Charter and under the city ordinances relating to paving within the original city limits, there would have been no occasion, whatever, to establish an Annex Improvement Commission and to clothe it with the powers and to entrust it with the duties which the Act of 1904 confers and imposes upon that commission; and nothing further would have been necessary than the adoption of an Act authorizing the issue of the city’s obligation with which to raise the funds needed to pay for the ¹²⁰ work. No one, we imagine, would venture to suggest, much less to assert, that the Legislature did not possess_ the power to adopt the statute in question; and we, therefore, approach the consideration of the scope and the details of the special system created by the Act of 1904.

Whilst the Act of 1904, ch. 274, deals with but one subject which is accurately described in its title, its various sections, all looking to the accomplishments of the single purpose with, which the Act is concerned, may be classified as follows: First, those which relate to the issue and sale of city stock to procure the funds with which the work is to be paid for; secondly, those which provide for the formation of the Annex Improvement Commission; and thirdly, those which define the powers and duties of that commission. The first of those classes is not involved in this controversy. The second comprising the second and tenth sections, has to some extent befen adverted to already and but a few words more will be needed in disposing of it. Under those sections the Mayor and City Council was given, the power to constitute the Annex Improvement Commission in one or the other of two alternative ways, and the commission itself was to consist of more or less members as the one or the other of the two sections might be followed.

By section two the commission was to be made up of ten members—four of whom were to be appointed by the Mayor subject to confirmation by the Second Branch of the Council (Art. 4, sec. 25, Local Code),;—and the remaining six were to be the city officials nan.ed in the section. In lieu of the commission contemplated by section two, the Mayor and City Council were authorized, under section ten, to empower by ordinance the Commissioners for Opening Streets who are three in number to perform the duties and functions of the commission provided for in section two. Sec. 6 of Ordinance 2x6 expressly conferred upon the Commissioners for Opening Streets all the duties, powers and functions provided in the Act of 1904 for the commission contemplated by sec. 2. The Mayor and City Council by that ordinance exercised the discretion given by the statute and thereupon the Commissioners for ¹²¹ Opening Streets became, in virtue of sec. io of the Act of 1904 and of sec. 6 of Ordinance No. 216, the Annex Improvement Commission.

What, then, are the powers of that commission thus constituted, with respect to the grading and paving of streets in the annex? The charter of the city need not be looked to for an answer to that question, because the Act of 1904 is the sole source of those powers. The power derived from the Act by the commission as it now exists are not trammelled by or subordinate to any provision of the City Charter; they are sweeping and unrestricted and pertain exclusively to a newly created and wholly independent agency of the city except in so far as secs. 14 and 15 of the charter put limits to the exercise of those powers if they put limits thereto at all. The “said commission shall have the right and power * * * to grade and pave any street, lane or alley * * * in the annex portion of the city of Baltimore;” and it “shall have all powers necessary and proper in the exercise of said powers.” These are the words of section three.

The powers thus' given are broad and unqualified. There is no condition annexed, either express or implied, indicating that the power to grade and pave can only be exercised after the City Council shall designate which streets are to be paved; nor is there a single imperative duty imposed by the Act upon the-Mayor and City Council in respect to the work on the streets in the annex, save that prescribed by sec. 8. That section enacts, “that the Mayor and City Council shall prescribe by ordinance the methods and proceedings for the sewerage and drainage of said annex.” The specific assignment of that duty and no other to the municipality is tantamount to a denial to other officials of any power in the premises, especially in view of the explicit declaration that the commission “shall have all powers necessary and proper in the exercise” of “the right and power” to grade and pave any street in the annex. The power to designate which streets in the annex shall be paved and to select the materials with which the paving shall be done is obviously included in the broader unlimited power to pave any street.

If the commission may pave any street in the annex, ¹²² and if in addition to that power it possesses all necessary and proper powers for the exercise of that power, it must undoubtedly be clothed with the further power to decide ivhich of the. streets are to be paved; because until it is determined which streets are to be paved it would be impossible to pave any street, since the selection of the street to be paved must necessarily precede the actual paving, and - no one else is entrusted with the authority to determine which streets are to be paved. The grant of a power to pave any street in the annex, coupled with the additional grant of all powers necessary and proper to the exercise of the primary power, is a grant of full power to do .the thing specified, as the agency clothed with the power to do it may, in its discretion determine. We do not understand how the commission can possess full power to pave any street in the annex, if it can only pave such streets therein as the Mayor and City Council shall by ordinance previously designate. Full power does not mean conditional power.

Full power to pave any street does not mean power to pave only such streets as the council may name; because, in the event that it did mean that, if the council neglected or refused to select the streets to be paved, the power of the commission to pave any street would be abrogated and the whole scheme of the legislation would be thwarted. If the term full power were construed to be synonymous with limited or conditional power, then the plenary power conferred by the statute upon an independent agency would be narrowed down to a restricted power to be exercised in subordination to the judgment of some other agency, though not a word in the statute justifies the implication that such was the legislative intention. The conclusion that the Annex Improvement Commission is alone entrusted with the power to select the streets to. be paved m the annex is strengthened by the provisions of section seven of the Act of 1904, for by those provisions the commission is authorized to contract with any person to do the work of paving the'streets of the annex—not the streets which the City Council may name—but the streets, that .is' all the streets, and of cours, ¹²³ therefore, any of them; or, the commission may employ laborers to do the work under its supervision. There is no more authority in the Mayor and City Council to select the streets to be paved than there is in the city government to determine whether the work thereon shall be done by contract or by day labor.

As the proceeds of the two million loan were to be applied exclusively to defray the cost and expense of condemning, laying out, opening, extending, widening, straightening/ closing, grading and paving the strests, avenues, lanes and alleys in the annex; and as by one of the provisos in the first section of the Act not more than five hundred thousand dollars, or one-fourth, of the city stock to be issued for those purposes, can be disposed of in any one year; it is apparent that the Legislature contemplated that the commission should do only part of the work of paving each year; and inasmuch as to no other department or agency of the city government was there delegated any authority to determine what part should be paved in any of the four years over which the work was required to extend, it must inevitably follow that to the commission, and to it alone, was committed the authority and the'discretion to select, in the exercise of the broad powers entrusted to it, the streets to be paved each year. With the deliberate and honest exercise of that discretion no other tribunal can lawfully interfere. What has been said in regard to the selection of the streets to be paved applies equally to the choice of the material to be used in doing the work and as to the mode and method in which it may be done. McQuillan, Mun.

Ord., sec. 519. Holding as we do that the Commissioners for Opening Streets (acting as and in reality constituting under sec. ic of the Act of 1904 and under sec. 6 of Ordinance No%2i6, the Annex Improvement Commission) possess the powers which have just been indicated, we come to the second group of questions involved in the case, and they are those which arise under Ordinance No. 216. Secondly. Sections six and seven of Ordinance No. 216 are alleged in the bills of complaint to be “unauthorized, null and void,” and the ground upon which that allegation is founded ¹²⁴ is the asserted unconstitutionality of sec. io of the Act of 1904.

As we have in an earlier part of this judgment decided that the Act of 1904 is constitutional and valid throughout all of its provisions, nothing more need be said upon that subject. ' The power to adopt sec. 6 of the ordinance was expressly conferred on the Mayor and City Council by sec. 10 of the Act of 1904 aud the power has been exercised in almost the exact language in which it was granted. With respect to section seven of Ordinance No. 216 an alternative contention is presented in the seventh paragraph of the bills of complaint. After charging in the sixth paragraph that both secs. 6 and 7 are “unauthorized, null and void,” it is assumed for the purposes of the position taken in paragraph seven that section seven of the ordinance is not unauthorized, null and void; and upon the basis of that assumption the same seventh section of the ordinance is relied on to restrict and curtail the power of the Annex Improvement Commission. Of course if sec. 7 of the ordinance is invalid, for any reason, it can impose no restriction at all on the Annex Improvement Commission, and if on the other hand it is valid, then the question as to whether it circumscribes the authority of the commission depends on the provisions of the section and their meaning.

Sec. 7 of Ordinance No. 216 is not invalid on-the ground averred in the bills of complaint, viz., the alleged unconstitutionality of sec. 10 of the Act of 1904, because that section of the Act is not void, but there is another and a different reason which if sustained might strike down sec. 7, as we shall presently see. But before touching upon that reason it will be necessary to understand clearly what is the contention of the' appellees, and what is the precise meaning of sec. 7. By that section it is ordained, as had been stated, that in'grading and paving streets under the Act of 1904 the procedure of the said commissioners shall be that now or hereafter prescribed by law in relation to the respective duties and powers of the same nature with which the City Engineer and other officers of the city are respectively clothed. Now Ordinance No, 165, approved February 24th, 1899, prescribes a ¹²⁵ procedure which must be observed by the City Commissioner in paving streets, and it is insisted that the procedure there provided is the one which must be followed by the Annex Commission in obedience to sec. 7 of Ordinance No. 216, since the duties of the City Commissioner are now by the City Charter (sec. 86, ch. i2j, Acts 1898), devolved upon the City Engineer.

We do not think Ordinance No. 165 has any application to these cases, and the reasons for that conclusion are obvious, when the provisions of the ordinance are examined. Without quoting them at length it suffices to say that the second section relates only to the paving of a newly opened street, avenue, lane or alley within the city limits,” and as Twenty-fifth street is not a “newly opened street” the procedure prescribed with respect to a “newly opened street” has manifestly no application. The third section defines the term “improved pavements.” Section four ordains “that in all cases of repaving, with improved pavement,” streets already paved “where an ordinance providing for such repaving does not specify the kind of improved pavement to be used for such repaving * * * then the kind of improved pavement to be used for such repaving shall be decided upon by the City Commissioner, with the approval of the Mayor.” This section does not apply because no ordinance was ever passed directing Twenty-fiith street to be repaved and the section re- ■ lates to repaving. Sec. 6 refers to macadamizing as contra-distinguished from paving.

This brief analysis of Ordinance No. 165 is quite sufficient to show that its provisions have no application to Twenty-fifth street, and therefore they cannot limit the powers which the Act of 1904 and sec. 6 of Ordinance No. 216 confer upon the Annex Commission in the premises. But if this were not so, and if the contention were sound that Ordinance No. 165 conflicts with the Act of 1904 and tended to limit its scope, then it would follow that sec. 7 of Ordinance No. 216 is so far as it by its general reference to then existing laws incorporated Ordinance No. 165, would be invalid. And it would be invalid, not because sec. 10 of the ¹²⁶ Act of 1904 was unconstitutional, but because the Mayor and City. Council was incompetent to restrict or qualify, by ordinance, any of the powers conferred on the Annex Commission by the Act of 1904.

It is an elementary principle that since all of the powers of a municipal corporation are derived from the law and its charter, no ordinance or by-law can enlarge, diminish, or vary its powers. 1 Dillon, Mun, Cor., sec. 251; Thompson v. Carroll, 22 How. 422 . We do not think that sec. 7 imports into Ordinance No. 216 any municipal legislation which is hostile to the Act of 1904. Hence in both of the alternative contingencies relied on in the bills of complaint to deprive the Annex Commission of the power to act in the way it did proceed in the matter of Twenty-fifth street, the appellees have failed to sustain their contention, and the authority given to the commission by the Act of 1904 may be lawfully exercised by it. Thirdly.

We now come to the questions which arise .under secs. 14 and ip of the City Charter, and those questions are several in number—of which the most important concerns the method adopted to secure competitive bidding. Assuming that secs. 14 and ip of the City Charter are applicable to the Annex Improvement Commission as alleged in the bills of complaint, in spite of the provisions of the Act of 1904, ch. 274, we proceed to inquire whether those sections have been disregarded or complied with. We start now with the above assumption- as a postulate, both because the pleadings are framed upon that theory and because in a case immediately following these—that of the Mayor and City Council v. Gahan —the precise inquiry as to whether those sections, prohibit the kind of competitive bidding called for in these cases, is distinctly raised and essentially involved, and the legality of and the objections to the system adopted may as well be disposed of. at once, and thereby a separate- discussion of this subject in Gahan’s. pase will be avoided. . , Sec. 14 provides that “Hereafter in contracting for any public work or purchase, of any supplies or materials involving an expenditure of five hundred dollars or more for the city, or ¹²⁷ by any of the city departments * * * or special commissions or boards, unless- otherwise provided for in this Article, proposals for the same shall be first advertised for * * * and the contract * * * shall be awarded by the board provided for in the next section of this Article, and in the mode and manner as therein prescribed.” Sec. 15. “All bids made to the Mayor and City Council of Baltimore for supplies or work for any purpose whatsoever, unless otherwise provided in this Article,” shall be opened by a board consisting of designated municipal officers and styled the Board of Awards, “which board or a majoriiy of them, shall, after opening said bids, award the contract to the lowest responsible bidder.” The Commissioners for Opening Streets, acting as the Annex Improvement Commission, prepared three separate and distinct sets of specifications, each exact and complete in itself. One set was for an asphalt block pavement, the second was for a vitrified brick pavement and the third was for a bitulithic pavement.

The bitulithic pavement is a patented process. Accompanying and forming part of the specifications for the last-named pavement was an agreement signed by the Warren Brothers Company—the patentee and owner of the process used in laying bitulithic pavements— under and by which agreement the Warren Brothers Company stipulated and undertook to furnish to the city and to any individual who wished to bid on that kind of pavement, the patented wearing surface, the bituminous flush coating cement and chips, the bituminous cement for pouring the foundations and to supply an expert to give proper advice and to allow the use of the patents, all for the price of one dollar and