Northern Central Railway Co. v. Mayor of Baltimore

Bartol, J., after stating the facts of the case, ante p. 95, delivered the opinion of this Court as follows : The appellant contends, that under the Act of 1853, and the assent of the Mayor and City Council, given in the first section of the ordinance, it has the right “to locate the lateral road through the city over such route, and with such grade or grades as the company, in the exercise of its discretion, might deem expedient.” Upon this question this Court is of opinion the appellant is in error. By the charter of the city of Baltimore and its supplements, the State has conferred upon the Mayor and City Council full and complete jurisdiction and control over the streets and highways, with, power to fix and determine their grades, with a view to the public convenience. The Act of 1853 did not design to take away, from the municipal Legislature, this jurisdiction and con ¹⁰⁴ trol, so essential to the welfare of its citizens and the public. On the contrary, while conferring upon the appellant the right to construct .its railway over the streets of the city, the General Assembly has declared, as a condition precedent, that “the assent of the Mayor and City Council shall be first had and obtained;” thus referring the subject to the action of the city authorities, who have the power to grant or to refuse their assent to the proposed work.

Nothing can be clearer than in such a case, the power reserved by the Act to the Mayor and City Council over the subject, is complete and unimpaired, and necessarily involves the right of prescribing the terms and conditions upon which their assent is given. The decision of the Supreme Court of the United States, in Mager vs. Grima & others, 8 Howard, 490 , is an authority for the principle just stated. That was a case involving the constitutional power of Louisiana to impose a tax upon legacies, when the legatee is neither a citizen of the United States, nor domiciled in that State. On page 494, Chief Justice Taney says: “If a State may deny the privilege altogether, it follows, that when it grants it, it may annex to the grant any conditions which it supposes to he required by its interests or policy.” We conclude, therefore, that the provisions of the ordinance to which we have referred, are valid and binding upon the appellant, as conditions upon which the assent of the city was granted; they must be construed together with the first section, as parts of the same ordinance, and