Lake Roland Elevated Railway Co. v. Mayor of Baltimore

26 A. 510, 77 Md. 352, 1893 Md. LEXIS 40

• Court: Court of Appeals of Maryland
• Decided: March 16, 1893
• Status: Published

Opinion

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 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 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 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 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 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 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 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 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 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 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 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 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 directing the level and graduation of this street to be-altered. In consequence of this alteration it became necessary to cut down the street in front of the plaintiff’s house. The question was whether the repealing-ordinance was valid. The Court said: "It cannot be disguised that a promise is held forth to all who should build on the graduated streets, that the graduation should he made unalterable.” The repealing ordinance was however held valid. The ground was that the corporation of Georgetown could not make a contract which should operate so as to bind its legislative capacities forever thereafter. Dillon on Municipal Corporations, sec. 97, (4th Ed.), sums up the doctrine, in these words, and cites a very large number of authorities: "Powers are conferred upon rnunicipal corporations for public purposes; and as their legislative powers-cannot, as we have just seen, be delegated, so they cannot toiihout legislative authority, express or implied, he bargained or bartered atoay. Such corporations may make authorized contracts but they have no power, as a party, to make contracts, or pass by-laws which shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties.” The application of these principles to the present case will he apparent when we have considered with particularity the repealing ordinance, and the circumstances under which it was passed.

The ordinance makes the following recitals: "Whereas, by a provision in section 1 of Ordinance No. 23, approved April 8, 1891, and entitled 'An ordinance to authorize the construction of city passenger railway tracks by the North Avenue Railway Company on North avenue, from McCulloh street to Guilford avenue, and thence on Guilford avenue and North street to Lexington street, and thence on Lexington street to Charles street, and on North street to the north side of Fayette street,’ the North Avenue Railway Company of' Baltimore City was authorized and licensed to lay down and construct double iron railway tracks for the purposes of its business on divers streets of the city, among others on Lexington street, between North street and Charles street; and whereas, it appears to the Mayor and City Council of Baltimore, that the public safety and convenience, and the proper regulation of the use of the streets, requires that there shall not be more than one iron railway track laid down, constructed, maintained, or used on said portion of Lexington street; and whereas, the president and other officers of the said North Avenue Railway Company knew, before any expense was incurred by r,he said company, or before any portion of the work of laying said tracks on said portion of Lexington street had been done, that in the judgment of the Mayor and City Commissioner, the laying of a double set of iron railway tracks on said portion of Lexington street would be detrimental to the public interest; and that the City Solicitor had given the opinion that the Mayor and City Council had full power to alter or revoke the authority given by said section 1 of Ordinance 23, of April 8, 1891, to lay double iron railway tracks on said portion of Lexington street; and that the Mayor would, on the earliest practicable occasion, recommend the passage of an ordinance altering and revoking the authority to lay such double iron railway tracks on said portion of Lexington street.” Douglass street has recently been opened and extended so as to connect with Lexington, and make a continuous thoroughfare from the western extremity of the city, to a remote point in the eastern part. The cost of this improvement, including paving, will be about six hundred thousand dollars. There is no street between Lexington and the water on the south which is not obstructed in some part of it by railway tracks; and none nearer than Eager on the north (nine blocks distant) which can be used as a thoroughfare from the western to the eastern part of the city. The City Hall is at the south eastern corner of North and Lexington streets; and on Lexington, between North and Calvert streets, are the fire engine house No. 4, and the office of the Liquor License Board on the north side, and on, the south side is the United States Post Office building, in which are the rooms of the United States Court, and the Internal Revenue office. Between Calvert and St. Paul are the Court House of the city (with its principal entrance on Lexington) and the Record Office; and the other buildings between Calvert and Charles are principally used for offices of lawyers and real estate brokers. By measurements, it is shown that the distance between the overhanging sides of the cars and the gutter on the south side of Lexington street, between Charles and Calvert, will vary from four feet seven inches to three feet eight inches; and on the north side it varies from four feet seven .inches to three feet four inches; and between Calvert and North streets on the south side the side of the car will project one inch over the outside edge of the gutter; and on the north side it will vary from eight feet two inches to eight feet ten inches. Measurements -were also made of different vehicles, ranging from the large furniture van to the small one horse carriage, and it was found that they measured from eight feet four inches for the largest to six feet one inch for the smallest. The maximum rate of speed allowed for the cars on this part of the track is ten miles an hour. The distance from North to Charles street being eleven hundred feet, if the cars run at half the permitted speed, they will pass over this space in two and a half minutes. And it is stated in the bill of complaint that at certain hours of the clay it will be “necessary to run cars on Lexington street at intervals of three or two minutes, and sometimes at an interval of one minute apart.” It must be very obvious that the existence of these tracks is incompatible with the use of this part of the street as a drive-way. The control of the city over the streets is attended with the duty of preserving them for their legitimate purposes. They are intended for the passage of the people over them on foot, on horseback and in vehicles on their various occasions of business convenience and pleasure. It is not competent for the city to defeat the primary purposes for which they were dedicated to the public use. They are highways, and must be maintained as highways so long as they are kept in existence. The power over the streets is held on the same trusts as the other legislative powers conferred on the Mayor and City Council. It is intended to be used for the purpose of preserving them in the character of streets in such condition as may be most suitable for the public use. It is of incalculable importance to the public interest, and there can be no more reason to suppose that the city can abridge or surrender this legislative power than any other. In the State of New York where, as we have seen, a railroad company may by the Constitution and statutes acquire an estate in perpetuity in the streets, it is held that statutes authorizing telegraph companies to erect and construct the necessary fixtures for their lines upon public streets could be repealed, after the fixtures had been erected. American Rapid Telegraph Company vs. Hiss, et al., 125 New York, 641. We will quote from the opinion of the Court: “The people of the State do not own the streets, and the only authority the Legislature has over them is to deal with them as streets, and to regulate their use as streets for public purposes; and by these Acts it in effect determined that one of the purposes for which the streets could be used, was the erection of poles and stringing of wires for the business of telegraphing, and that that was a public use not inconsistent with the use of the streets for general street purposes. These were general, public legislative Acts in the exercise of the police power of the State; and, therefore, they were not beyond the reach or touch of future legislation. The Legislature did not intend to divest itself, and could not divest itself, of its control over the streets for the public welfare, and we must infer, from the language used, that it did not intend to-bind itself by an irrevocable grant. If', therefore, these Acts are to be construed as merely conferring a license which has been acted upon by the plaintiff, the Legislature could revoke the license or modify it in any way, or at any time, when the public interest might require it. ” If an ordinance cannot be repealed which will reduce Lexington street to the condition which we have described, then truly, the City Council have lost all control over the streets, and have renounced their legislative power. And it will be demonstrated that they have the power to destroy their utility for the legitimate purposes of streets, and to convert them into places of extreme peril to life and limb, but not the power to keep them in a condition suitable for their ordinary use as highways. Our municipal governments were not instituted for the purpose of making any such result possible. The repealing ordinance was passed because, as stated in the preamble, the City Council thought that it was required by "the public safety and convenience, and the proper regulation of the use of the streets." These considerations for the repeal were within their legislative judgment and discretion, and the evidence shows that the ordinance has "a real and substantial relation" to the objects proposed. It is therefore not subject to supervision or review by the Courts. .This legislative authority over the streets delegated to the city is sometimes classified as belonging to the police power; that is to say, that great power which embraces the protection of life, limb, health and property, and the promotion of the public peace and safety. It is a high conservative power of the utmost importance to the existence of good government. It has been most emphatically declared by the-Supreme Court of the United States on several occasions, that a State cannot limit its exercise of this power by contract or in any other way. Some of the best known and most striking cases are, Stone vs. Mississippi. 101 United States, 814; Boston Beer Company vs. Massachusetts, 97 United States, 25; and Fertilizing Company vs. Hyde Park, 97 United States, 659. But supposing this designation not to be appropriate in the present instance, the name given to the power is of no importance. It is expressly conferred by the Legislature.

Although the city had a right to repeal this ordinance, it. would have been obliged to make compensation to the railroad company if the expense of laying the tracks on Lexington street had been reasonably incurred in reliance on Ordinance No. 23. The cases which we have already cited show the opinion of this Court on this subject. But the tracks were laid on Lexington street alter the Mayor's objection to a double track was made known to the President of the railroad company. The work was commenced on the thirty-first of October, but it was suspended the same day, before the tracks were located. On the third of November an interview took place between the Mayor and the President of the railroad company, in which the Mayor stated his objections to a double track. The Baltimore Sun of the next day contained a detailed statement of the Mayor's reasons for his opposition to the double track. After the interview with the Mayor the work was pressed forward with extraordinary vigor. On the seventh of November the Mayor and City Solicitor each wrote a letter to the President informing him that at the first meeting of the City Council an ordinance would he submitted to prohibit the laying of the double track. After the receipt of these letters by the President the work of laying the double track was continued night and day without intermission until it was completed. The general manager of the railroad testified that he did not know that there had ever been any construction work done in the city at night, except what was done on Lexington street. Lexington street had not been reached in the regular course of the construction of the road. The elevated structure on North street had not been completed, nor had the tracks been laid on North street, south of Saratoga, and no preparation had been made for laying them. And at the time the testimony was taken in the cause this elevated structure was not completed, work being in progress at the north end, near Eager street; nor had any preparation been made for laying the tracks on North street, south of Saratoga. Saratoga is one block north of Lexington, and is the street at which the elevated structure is to terminate at its southern extremity. We do not see how in any way the city can be held responsible for the expense incurred under these circumstances by the construction of these Lexington street tracks. To say the least, the expense was unnecessarily incurred after full knowledge of the purpose on the part of the Mayor to recommend the passage of the repealing ordinance so soon as it could be effected. The ordinance was promptly passed as soon as the City Council met.

Considerable comment was made on the rights of way enjoyed by other passenger railway companies, and the supposed unfavorable effect on their interests of a decision in favor of the city. We may say once for all that we are dealing only with the case before us. Franchises and privileges granted by the Legislature cannot be annulled by au ordinance of the Mayor and City Council. We hold that Ordinance No. 23 did not vest in the Lake Roland Company an irrevocable right in the streets. It is our most solemn duty to protect vested rights; and that duty we mean to perform to the extent of our ability, by the exertion of all the powers conferred upon us by the Constitution and the laws. As to other matters involved, the city’s liability for damages, as above declared, will secure justice to those who may have incurred expense on the faith of privileges duly granted.

(Decided 16th March, 1893.)

The bill of complaint in this case prayed for an injunction to restrain the city authorities from removing the tracks on Lexington street. The Circuit Court of Baltimore City passed a pro forma decree dismissing the bill with costs. It must be affirmed.

Decree affirmed, with costs.

On the 31st of March, 1893, the appellant moved the Court for a re-argument of the foregoing case, and in support of its motion filed an extended and carefully prepared brief. The Court overruled the motion.

Chief Judge Alvey

filed the following separate opinion on the motion for a re-argument :

When this case was originally decided by this Court, I fully concurred in the conclusion arrived at that it was competent to the Mayor and City Council of Baltimore to pass the repealing or restrictive Ordinance, No. 1, approved November 18th, 1892, limiting the appellant-company to the use of a single track for its road on Lexington street, between North and Charles streets, and requiring it to remove the double tracks as by the ■ordinance directed. And after careful consideration of the reasons assigned by the appellant for a re-argument of the case, I remain of my former opinion.

The grounds of my judgment are briefly these. The Mayor and City Council, by statutory provision, are invested with express authority "to regulate the use of the streets, lanes and alleys of the city, by railway or other tracks,” and this, as I understand it, is but. an amplification of their general power over, and right and duty to regulate and maintain the streets and other highways ■of the city for the use of the public. It is quite clear that the Act of 1892, ch. 112, has in no manner divested the Mayor and City Council of their power over the streets of the city upon which filie tracks of the appellant may be laid ; but, on the contrary, that statute is careful to reserve to the city "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.” The ordinance referred to in this Act is the Ordinance No. 23, approved April 8th, 1891, under which the authority was first obtained from the city to lay railway tracks on Lexington street, and which' was •confirmed by the Act of the General Assembly of 1892, •ch. 112, with the reservation just stated.

The power to maintain and regulate the use of the ■streets of the city is a trust for the benefit of the general public, and the primary use of the streets is not, by any means, that of furnishing tracks for street railways. The Mayor and City Council cannot divest themselves of this trust, nor can they so restrict their power over the streets as to defeat or seriously impair the beneficial •enjoyment of the streets by the public in the ordinary and usual modes of passage thereon. The power vested in them, in respect to the streets, is of a legislative «character; and they can neither restrict themselves, nor their successors, by any irrepealable ordinance, in the -exercise of such power over the streets, except it be by the express authority of the Legislature of the State. The power is a continuing one, to be exercised whenever the public needs may require it; and hence the power to regrade and improve the streets from time to time, must remain subject to the judgment and discretion of the legislative branch of the municipal government. But if the contention of the appellant could be maintained, the streets on which railway tracks are once laid, might, and most generally would, pass out of the control of municipal authority. For, however improvident or reckless might be the grant of privileges to street railway companies, or however much their tracks might obstruct the use of the streets by the general public, perpetual casements or servitudes would be created in the streets, and the municipal authorities would be precluded from the exercise of the ordinary power of changing grades, or making other improvements of the street, that might materially interfere with the tracks, or the operation of the road, though public necessity for such improvement might be never so urgent. And, in such case, the only means of reclaiming the street to the absolute control of the city authorities, and to the general public use, would be by a resort to the power of eminent domain. But, in this case, to say nothing of the general indefeasible nature of the legislative power vested in the Mayor and City Council in respect to the streets, the express statutory reservation of the power to regulate the use of the streets by railways, secures to the Mayor and City Council the paramount right at all times to control the street, and to determine that no more than a single track shall be maintained thereon.

I am aware that it may be urged, and, indeed, it has been urged here, and it constitutes the full strength of the appellant's case, that upon the principles that I have stated as the ground of my judgment, there would he no sufficient protection to the property rights in a street railway. But I am far from saying that such property rights are not entitled to protection. If, in reliance upon a valid ordinance, a railway company, in good faith, and without notice that the authority is about to be modified or withdrawn, has laid its tracks in the street of a city, and the municipal authorities afterwards conclude that the grant of the privilege was improvident, or detrimental to the public, and require the tracks to be removed, this can be enforced only upon principles of fair indemnity to the company. This is in accordance with a well established principle in the case of an executed license, where, to entitle the licensor to revoke the license, and to be restored to his former rights, he must do justice to the licensee, by indemnifying him for the expense which he has reasonably incurred under the license; but not for prospective profits that might be realized. This measure of indemnity the principles of justice would seem to require, in such case as I have just stated. See Addison vs. Hack, 2 Gill, 221.

The recent case of St. Louis vs. Western Union Tel. Co., 148 U. S., 92, made the ground for the present application for re-argument, is supposed to be quite decisive of this case, in support of the contention of the appellant. That case was decided by the Supreme Court after the argument of this case, and the opinion was not brought to our attention until after the opinion in this case was-filed. But, upon careful examination of the opinion of the Supreme Court, as delivered by Mr. Justice Brewer, I fail to perceive in what respect it can be regarded as having any decisive application to this case. That case is not like the present in any material respect. It was a proceeding to enforce the collection of a specific tax or rental assessed under an ordinance of the City of St. Louis, upon each of a number of telegraph poles of the defendant, erected along the streets of the city; and the right to enforce the collection of such tax or rental was denied by the defendant company, upon the ground that such tax or rental was a mere privilege or license tax for the privilege of carrying on its business in the city; and that the assessment, and attempted enforcement and collection of such tax, were acts in violation of Art. 1, sec. 8, paragraphs 3 and 7 of the Constitution of the United States. This defence was not sustained by the Court. It is true, the defendant, as an additional defence, contended, that the city, by its ordinance, had contracted with the defendant to permit the erection of certain telegraph poles in the streets of the city, in consideration of the right of the city to occupy and use the top cross-arms of any of such poles for its own telegraph purposes, free of charge. But the Court, upon the facts of the case, refuted that contention; and cited and quoted from certain State decisions, relied on by the defendant, only to show that they had no application to the case. I do not find that there was anything decided in that case that supports the contention of the appellant here. Nor do I think that the Supreme Court has in any case established a doctrine that supports the contention of the appellant.

I therefore think the motion for re-argument should be overruled.

(Filed 19th April, 1893.)