Northern Central Railway Co. v. Mayor of Baltimore , 21 Md. 93 ( 1864 )

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 control, 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 the appellant cannot rightfully claim to act upon the assent given by the first section, and disregard or repudiate the force of the terms and conditions imposed by the ordinance. We speak particularly in this connection of the terms imposed by the second, sixth and seventh sections, they are all that are involved in this case, and it is unnecessary to consider the provisions of the other sections.

We do not think there is any force in the objection, that by the ordinance the railway is required to be made under tbe supervision of the Mayor and city commissioner. Tbe ¡rule “delegatus non potest delegare,” does not apply. The corporation can act only by its officers and agents, and it was not only competent, but eminently proper for tbe Mayor and City Council by ordinance, to designate and appoint the officers or agents to carry out and enforce its provisions.

(Decided Feby 24th, 1864.)

It has been contended by appellant, that tbe city has lost its equitable right to the relief prayed, by laches, and acquiescence in tin lets complained of.

The facts disclosed by the record before us, do not show any such laches, or acquiescence in the wrongs complained of, on the part of the Mayor and City Council, as to estop the corporation in a Court of Equity. We have decided in the case of The State vs. The Phil. Wil. & Balto. R. R. Co., 20 Md. Rep., 157, that no lapse of time can legalize a public nuisance, or justify a wrong doer in continuing it.

Besides, in a case like this the ordinary rule of equitable estoppel governing individuals, does not apply. Here the appellant is dealing with a public municipal corporation, whose acts are manifested only by its public ordinances, officers and agents. The provisions of the ordinance were well known to the appellant; upon the assent of the city expressed in the ordinance, it professes to act, and yet it has by its own admission, disregarded its plain, provisions. No official act of the city authorities has been shown giving sanction or countenance to the appellant's proceedings; but the claim is now advanced that it has acquired the right of continuing in the commission of its wrongful acts, because the complainant did not sooner invoke the interposition of the Court. This defence is not supported by any principle of equity applicable to the case as it is presented by the record.

A decree will be signed affirming tbe order of tbe Circuit Court, continuing tbe injunction.

Order affirmed.