State ex rel. Baltimore, Canton & Point Breeze Railway Co. v. Latrobe

McSherry, J., delivered the opinion of the Court. The Baltimore, Canton and Point Breeze Railway Company is a body corporate, and by ordinance number 50 of the Mayor and City Council of Baltimore, approved April the eighteenth, eighteen hundred and ninety-two, it was authorized to lay its tracks upon and along certain designated streets of Baltimore City. By the 12th 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 number two, approved November the twenty-fifth, eighteen hundred and ninety-two, 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 — 232 — seventh day of October, eighteen hundred and ninety-two, without the knowledge of the City Commissioner, and not under his supervision, the railway company caused thirty 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 the seventh, eighteen hundred and ninety-four, 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 number fifty, of eighteen hundred and ninety-two, had not been complied with in such manner as would authorize the construction of the work. Upon June the eleventh, eighteen hundred and ninety-four, The State of Maryland, on the relation of the Baltimore, Canton arid Point Breeze Railway Company, filed a petition in the Court of Common Plea* 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 number fifty, for the purpose of laying upon those streets the tracks of the relator’s railway. The respondents duly answered, and on July the twenty-eighth 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 number fifty to lay its tracks as entitled it to relief by mandamus. With respect to the first question, but little need be said. — 233 — 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 óf the discretion and judgment of the individual exclusively entrusted 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; Madison v. Harbor Board, 76 Md. 398; Devine v. Belt, 70 Md. 352. 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 number two, the Mayor — 234 — 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 number fifty 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 flower of the Mayor to issue the permit; and that question is one for judicial determination. And this brings to us the second and vital inquiry arising on the record. The solution of that inquiry depends upon the meaning of the twelfth section of ordinance number fifty, and it will therefore be necessary to — 235 — 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 of any of the streets hereinbefore 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 the work on the road, it was clearly for the protection of the public interests and for the convenience of persons who might use these thoroughfares, that the requirement exacting proper diligence in beginning and in prosecuting the work to completion was incorporated in the ordinance. It was not an idle or meaningless clause, and its terms áre neither ambiguous nor. equivocal. That it was intended to be operative — 236 — and effective, the City Council left no room for speculation, because for a failure to comply with it, they, in the same sentence, by plain language, whose meaning is unmistakable, imposed the drastic penalty of a revocation of all the rights and privileges granted by the preceding sections of the ordinance. As, however, it was apparent at the time the ordinance was passed that conditions then existed and that others might arise later on, which, while not retarding the prompt beginning of the work, might possibly prevent its ultimate completion within the allotted period of twelve months, the saving proviso was inserted. With a view, then, of suspending for a definite time the prescribed penalty, and to arrest' its operation upon a failure to complete the road within the limit of time designated, the proviso was added. It contains three contingencies, each one of which has specific reference to an interruption in the actual progress of the work, whereby its completion would be unavoidably delayed through no fault or laches of the relator. There is not a suggestion in the whole ordinance that the relator’s voluntary delay in beginning and in prosecuting the work, though not actually impeded or stopped in any one of the three ways specified in the proviso, should be treated or considered as a waiver or suspension of the penalty. The policy and purpose of the twelfth section, as well as its natural reading, imperatively forbid the adoption of a different construction. If delays were caused by other parties, not the relator; or, if the streets over which the road was to be laid were not graded and paved when the ordinance was appoved; or, if any of the streets were undergoing repairs so as to interfere with the laying of the tracks, then, and it is put as a consequence of these interruptions, “the time for the completion of said railways” — not for the beginning of the work thereon — “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 obvious, then, that the extension of time relates not to the beginning of the work, but to the completion thereof, after — 237 — its substantial progress had been arrested in one or more of the three ways indicated. As we have already explained, on October the seventh, eighteen hundred and ninety-two, or just ten days before the expiration of six months from the approval of the ordinance, the relator laid down thirty feet of track on Bond street and then voluntarily stopped. This was manifestly not such a beginning of the work as the ordinance contemplated. The relator was not prevented by delays caused by third persons, or caused in either of the other modes named in the proviso, from proceeding with the work ; nor did it go on with the work thus commenced, as according to the plain meaning- of the ordinance, it was bound to do until it reached an ungraded and unpaved street or encountered a street undergoing repairs. The company, however, assumed that the proviso did not relate solely to the time of completing the work, but that its effect was actually to strike down and completely nullify the express limit of six months within which to begin the work; and, as a consequence, it insists that it was under no obligation to do anything towards building the road, if, when the ordinance was approved, any of the obstacles in the way of the final completion of the whole work existed at any point upon the entire route. To this we cannot agree, because when the proviso declares that the “provisions of this section shall not apply” in the threé designated instances, its manifest meaning is that the preceding limit as to time is not to apply in the event that the specified obstacles should present physical obstructions to the continuous prosecution and completion of the work ; and that the time limit should then be suspended, but only in so far as these physical impediments interrupted the progress of actual construction. In support of this view the case of the People v. Broadway R. R. Co., 126 N. Y. 29, is directly in point. It follows, then, that according to the terms of the twelfth section the relator, when it made application for the permit in June, eighteen hundred and ninety-four, had no right or authority to lay its tracks, under ordinance number fifty. — 238 — Whether that want of authority or lack of power can be availed of in this proceeding will be discussed later on. Now, the remedy by mandamus is not one which is accorded ex debito justitim. The writ is a prerogative one, and unless the right which the relator seeks to enforce is clear and unequivocal, it will not be granted. Brown v. Bragunier, 79 Md. (29 Alt. Rep. 7); Weber v. Zimmerman, 23 Md. 45 ; Hardcastle v. R. R. Co., 32 Md. 32 ; Legg v. Mayor, &c., 42 Md. 203. If the construction which we have placed upon the twelfth section of ordinance number fifty be the correct one, as we believe it to be, then it is perfectly manifest, as already observed, that the relator on June the seventh, eighteen hundred and ninety-four, had no such clear and unequivocal light to dig up the streets as it lays claim to in its petition. And if this be so, then obviously there was no such plain co-relative duty devolved upon the Mayor by ordinance number two, of November, eighteen hundred and ninety-two, as to make it unconditionally obligatory on him to grant the permit applied for. There being then neither the clear and unequivocal right, on the one hand, to do the act proposed to be done, nor, on the other hand, the plain ministerial duty to issue the permit allowing it to be done, there is no case presented for redress by the writ of mandamus. But it was objected that under the decisions in the Canal case, 4 G. & J. 1 ; Hodges’ case, 58 Md. 603, and Bonaparte's case, 75 Md. 349, the failure of the company to begin and complete the construction of its road within the times limited in the ordinance could not be availed of collaterally by the Mayor of the city as a defence in this proceeding. In Hodges' case, the railway company did not begin to construct its road within the time prescribed by the ordinance which authorized the tracks to be laid; and when the company did thereafter proceed to construct its road, several persons who owned property which abutted upon Park avenue, one of the streets proposed to be occupied, filed a bill in equity for an injunction to restrain the building of the road. They claimed amongst other things that — 239 — the company, by its failure to begin the work within the time limited, had forfeited its rights under the ordinance to build the road at all. Upon the question as thus presented, it was held that the provision fixing a limit was intended for the benefit of the city, and was one which' its authorities might waive at pleasure, and was, consequently, one which could not be invoked by a private individual. “No principle,” say this Court, “is better settled than that a cause of forfeiture cannot be taken advantage of or enforced against a corporation collaterally or incidentally, or in any other mode than by a direct proceeding for that purpose against the corporation.” But it cannot be pretended that we are confronted with the same conditions now. This defence by the Mayor is not an attempt by a private person to enforce in a collateral proceeding a cause of forfeiture. The executive of the very municipality which originally granted the privilege to lay the tracks, in acting under a valid subsequent ordinance, whose due execution he was charged with faithfully enforcing, refused to grant a permit prescribed by ordinance number two, of November, eighteen hundred and ninety-two. The reasons assigned by him are immaterial, if he had no power to approve the permit. Now, ordinance number two, approved a month, after the expiration of the limit of six months fixed by ordinance number fifty for the commencement of the work, is a declaration by the Mayor and City Council that the municipality did not waive the time limit in ordinance number fifty, nor the consequences following the non-observance thereof; for it expressly prohibited, from and after its passage, the digging up of the streets under 2My pretext or for any cause, without a permit being first» procured — a broad restriction that did not exist during the whole period allowed for beginning the work under ordinance number fifty, and one utterly inconsistent with the hypothesis that the city authorities recognized the company’s unqualified right to lay the tracks thereafter. Its effect was, not to waive the enforcement of the time limit, but to provide a direct and speedy mode for — 240 — putting into force the provision containing that limit. It substantially ordained that the city not only refused to waive the time limit, but that it designed to enforce it, and therefore the ordinance exacted a permit as a means to prevent that from being done which previously could have been lawfully done, but which, by reason of the lapse of the time within which it ought to have been done, could not afterwards lawfully be performed. If the city, by a direct repeal of ordinance number fifty, could have taken away the rights conferred by that ordinance, and of this there can be no question, then it could equally accomplish the same result by a general enactment that involved in its operation and effect a denial of authority to exercise those rights which, as between the city that granted them and the company that had accepted them, coupled with the conditions, were lost and had lapsed by a failure on the part of the company to comply with those very conditions. Of course, legislation of this sort to be effective as a repeal or a revocation of previously granted rights and privileges, for a breach of a condition subsequent annexed to the grant, must show an intention to reassert title and to resume possession. And as we understand it, such was, at least, one of the objects and purposes of ordinance number two, of November, 1892. After the lapse of the time limit and the enactment of ordinance number two, the Mayor had no right to grant the license; and the city, by adopting the last named ordinance after the expiration of the time limited for beginning the work, having asserted an enforcement of the consequences following from a breach of that condition, the case, as thus presented, materially differs from those cited above, and whilst they announce a perfectly correct and well-established principle, this case, for the reasons we •have stated, does not fall within its range or application. We need only add that nothing we have said is to be understood as affecting in any way the franchise conferred upon the relator by its charter to operate a street railway in Baltimore City; though the franchise can only be exercised — 241 — in such mode as the city, which has absolute control over its own streets, may by reasonable regulations prescribe. (Decided April 4th, 1895.) For the reasons we have assigned, the order appealed from will be affirmed with costs. Order affirmed with-costs.