Lake Roland El. Ry. Co. v. City of Baltimore
| Decision Date | 16 March 1893 |
| Parties | LAKE ROLAND EL. RY. CO. v. MAYOR, ETC., OF CITY OF BALTIMORE ET AL. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city.
Bill by the Lake Roland Elevated Railway Company against the mayor and city council of the city of Baltimore and Alfred E Smyrk, city commissioner, to restrain the defendants from removing the tracks on Lexington street in said city. The bill was dismissed at the hearing. Complainant appeals. Affirmed.
Argued before ALVEY, C.J., and ROBINSON, McSHERRY, FOWLER, PAGE BRISCOE, and BRYAN, JJ.
Ber. Carter, Wm. A. Fisher, J. N. Steele, J. E. Semmes, and F. K Carey, for appellant.
Wm. S. Bryan, Jr., and Thos. G. Hayes, for appellees.
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 without the sanction of an act of the general assembly. For this reason the legislature saw fit to enlarge the corporate powers of the city. The act of 1890, c. 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," etc., provided as follows: "The mayor and city council of Baltimore shall have power to regulate the use of the streets, lanes, and alleys in said city 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 8, 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, c. 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 has 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 which authorized the double tracks on Lexington street, but permitted the laying of a single track on certain condition. It must be mentioned that by 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 the power to pass the ordinance of November 18, 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 v. Graves, 19 Md. 351; Rittenhouse v. Mayor, 25 Md. 337. In State v. 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 McCullon 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 by act of 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 10 miles an hour, exclusive of stoppages, except while on the elevated track on North street, when the speed might be increased to 15 miles an hour, and that on its tracks lying to the west of Pennsylvania avenue the speed should not be greater than 15 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 of 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 v. O'Brien, 111 N.Y. 1, 18 N.E. 692; 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 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 be 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 be sold by auction, and that now, by the Laws of 1886, 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 be seen by an examination of cases decided before the amendment went into effect. In Davis v. New York, 14 N.Y. 506, and in Wilhau v. Sharp, 27 N.Y. 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, which had been given to it as a trust for the use of the public, and which it was not competent to relinquish. Railroad Co. v. Delamore, 114 U.S. 501, 5 S.Ct. 1009, 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 bearing of this decision on the case before us, we must bear in mind that the city of New Orleans has the power to sell the right of way over its streets for the purposes of a railroad. It was so held in Brown v. Duplessis, 14 La. Ann. 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 Gaslight Co. v. Louisiana, etc., Manui'g Co., 115 U.S. 650, 6 S.Ct. 252, was also cited. The legislature of Louisiana had incorporated a gaslight company and had granted it the exclusive privilege of vending gaslights in the city of New Orleans. The court held that the...
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