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

Citations

• 81 Md. 222
• 31 A. 788
• 1895 Md. LEXIS 45

Syllabus

<p>Mandamus. — License to Dig up Streets. — Construction of Ordinance Authorizing Street Railway to be Built Within a Certain Time.— Forfeiture of Rights Under the Ordinance.</p> <p>The remedy by mandamus is not one which is accorded ex debito justitice. The writ is a prerogative one, and unless the right, which the relator seeks to enforce, is clear and unequivocal, a mandamus will not be granted.</p> <p>An ordinance of Baltimore City provided that no person should, under any pretext, dig up any of the streets of the city without having first obtained a written permit therefor from the City Commissioner, approved by the Mayor. Held, that if a person or corporation is duly empowered by ordinance or legislative enactment to do an act involving such digging up of streets, as, for instance, to lay a street railway, neither the Mayor nor the City Commissioner can prevent the performance of that act by refusing to issue the permit, and in such cases its issue, not involving the exercise of a discretion, can be enforced by mandamus.</p> <p>But if a person or corporation has not the right to do the thing which it is proposed to do under the permit applied for, the Mayor would be under no obligation to issue it, not because he has a discretionary power to grant or withhold it, but because, either with or without the permit, the proposed act would be illegal.</p> <p>An ordinance of Baltimore City, passed in April, 1892, authorized a certain railway company to lay tracks, &c., upon designated streets, and directed that the company should commence the work of constructing the tracks within six months from date, and should complete the road within twelve months thereafter, otherwise the rights granted to be null and void. A proviso declared that this limit of time should not apply in case of delay caused by other parties, or in case any of the designated streets may not have been graded and paved at the time of the approval of the ordinance, or in case any of such streets shoul