State v. Latrobe

Decision Date04 April 1895
Citation31 A. 788,81 Md. 222
PartiesSTATE EX REL. BALTIMORE, C. & P. B. RY. CO. OF CITY OF BALTIMORE v. LATROBE, MAYOR, ET AL.
CourtMaryland Court of Appeals

Appeal from court of common pleas.

Application upon relation of the Baltimore, Canton & Point Breeze Railway Company against Frederick C. Latrobe, mayor of the city of Baltimore, and the city commissioner, for writ of mandamus to compel the commissioner to issue and the mayor to approve a permit authorizing the relator to dig up the streets for the purpose of laying its tracks. From an order denying the writ plaintiff appeals. Affirmed.

Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER ROBERTS, PAGE, and BOYD, JJ.

Bernard Carter, for appellant.

Wm. S Bryan, Jr., and A. W. Machen, for appellees.

McSHERRY J.

The Baltimore, Canton & Point Breeze Railway Company is a body corporate, and by Ordinance No. 50 of the mayor and city council of Baltimore, approved April 18, 1892, it was authorized to lay its tracks upon and along certain designated streets of Baltimore city. By the twelfth section of the ordinance the work was required to be commenced within six months from the approval of the ordinance, and to be completed within twelve months thereafter; "otherwise," so the section declares, "the rights and privileges herein granted shall be null and void." A qualifying proviso then follows. Its terms and provisions, which vitally affect the pending controversy, will be fully stated later on. By Ordinance No. 2, approved November 25, 1892, it was declared unlawful for any person, under any pretext, or for any cause whatever, to dig up any portion of the streets, lanes, or alleys of the city "without first having obtained a written permit therefor from the city commissioner, approved by the mayor." On the 7th day of October, 1892, without the knowledge of the city commissioner, and not under his supervision, the railway company caused 30 feet of track to be laid on North Bond street, south of North avenue; and although many of the streets over which the proposed railway was projected to be laid were graded and paved, and in a condition to have tracks constructed upon them, no further steps were taken to build the line until June 7, 1894, when application was made to the city commissioner for a permit, and to the mayor for an approval of a permit, to dig up the streets for the purpose of laying the tracks. The mayor and city commissioner refused to issue the permit, and they based that refusal on the ground that Ordinance No. 50 of 1892 had not been complied with in such manner as would authorize the construction of the work. Upon June 11, 1894, the state of Maryland, on the relation of the Baltimore, Canton & Point Breeze Railway Company, filed a petition in the court of common pleas against the mayor and the city commissioner, praying that a writ of mandamus be granted requiring the city commissioner to issue and the mayor to approve a permit authorizing the relator to dig up the streets mentioned in Ordinance No. 50, for the purpose of laying upon those streets the tracks of the relator's railway. The respondents duly answered, and on July 28th an order was signed denying the relief sought and dismissing the petition altogether. From that order this appeal was taken.

There are two questions arising out of these facts. The one is whether the mayor had a discretion to grant or refuse the permit, and, upon the assumption that he had not, the other question is whether, when the application was made for the permit, the relator had such a clear right and authority, under Ordinance No. 50, to lay its tracks, as entitled it to relief by mandamus. With respect to the first question but little need be said. The law is definitively settled both here and elsewhere that whenever the performance of a duty is dependent upon the exercise of judgment and discretion on the part of the person to whom the performance of that duty is assigned, that judgment and that discretion will never be interfered with, fettered, or controlled by the writ of mandamus. The reason for this is apparent, and it is that there is no warrant of law justifying the substitution of the judgment of the court in the place of the discretion and judgment of the individual exclusively intrusted with the performance of the particular duty. But when the duty imposed is strictly a ministerial one, is absolute and imperative, and in its discharge requires the exercise of neither official discretion nor judgment, then a mandamus will lie to enforce its performance. Wailes v. Smith, 76 Md. 477, 25 A. 922; Madison v. Harbor Board, 76 Md. 398, 25 A. 337; Devin v. Belt, 70 Md. 352, 17 A. 375. To which class of duties, then, discretionary or strictly ministerial, does the one relating to the granting and approving the permit applied for by the relator belong? Where a clear right exists to do an act,--as, for instance, to lay a street railway on a public thoroughfare of the city,--the mayor and city commissioner have no authority to refuse a permit allowing the streets to be torn up in furtherance of that object. If the act to be done be a lawful one, and be sanctioned by legislative enactment or by a city ordinance, and if the person or body corporate proposing to do it be duly empowered to perform it, the mayor and city commissioner cannot, nor can either of them, make the act illegal, or prevent its performance by refusing to issue a permit, which, if granted in the case supposed, would add nothing to the pre-existing power, and whose sole effect would be to indicate to the police authorities that the interference with the streets was no invasion of the laws of the municipality. To concede to the mayor a discretion to grant or withhold a permit in such a case would clothe him with authority to nullify at his pleasure a formal grant made by the city council. There may possibly be instances where, under Ordinance No. 2, the mayor would have a discretion; but when permission has, by ordinance, been distinctly granted to a person to do an act which necessarily requires and in terms is declared to involve in its proper performance the digging up of the city streets as a part of the very thing to be done, the mayor obviously has no right, by a simple refusal of a permit, to defeat the doing of the act authorized to be done, and thus practically to abrogate and repeal the formal permission granted to do it. Clearly, then, if when the permit was applied for in the case at bar the relator possessed an undoubted power under Ordinance No. 50 to occupy with its tracks certain streets of Baltimore city, it was the duty of the mayor to approve that permit; and this duty, involving the exercise of no discretion whatever, was, if it existed at all, plainly and imperatively ministerial. But if there were, then, no authority under the laws of the state or under the ordinances of the city to do the act for the doing of which the permit was sought, the mayor cannot be required to issue the permit; because, even if issued, it would not, under such conditions, of its own vigor, make that legal which would otherwise be illegal. It follows, then, that, if a person or a body corporate has no lawful right to do the thing which it is proposed to do under the license applied for, the mayor would be under no obligation to issue the permit; not because he has a discretionary power to grant or withhold it at his option or according to his judgment, but solely because either with or without the permit the act proposed to be done would be illegal. If there were no duty on his part to issue the permit, his refusal to grant it would furnish no ground for requiring him by mandamus to do that which, under the law, he had no authority to do at all. As a consequence, the question is as to the power of the mayor to issue the permit, and that question is for judicial determination. And this brings us to the second and vital inquiry arising on the record. The solution of that inquiry depends upon the meaning of the twelfth section of Ordinance No. 50, and it will therefore be necessary to quote that section in full, so that its exact provisions may be seen. It is in these words: "That the said proprietors, their associates or assigns, shall commence the work of laying down and constructing the railway tracks aforesaid within six months from the approval of this ordinance, and shall complete the said work and commence the regular running of cars within twelve months thereafter, otherwise the rights and privileges herein granted shall be null and void; provided that the provisions of this section shall not apply in case of delay caused by other parties, or in case any of the streets herein before named may not have been graded and paved at the time of the approval of this ordinance, or should any of said streets be undergoing repairs by the city authorities in such manner as would interfere with the laying and constructing of the railway tracks aforesaid, then the time for the completion of said railways shall be extended for a period of twelve months from the removal of such delay or the completion of such grading and paving or repairs."

It is needless to allude to the familiar rules and canons of construction frequently invoked in the interpretation of legislative enactments, because the language employed in the section just transcribed is so free from obscurity or uncertainty that little or no difficulty in ascertaining its meaning and purpose is or can be presented. There was obviously, a reason for inserting the provision fixing a time for beginning and for completing the construction of the road. As the railway was, when finished, to occupy a number of streets, all of which would have to be interfered with to some extent during the progress of...

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