delivered the following separate and in part concurring opinion :
This was a petition for a mandamus addressed to the Court of Common Pleas. The relator in the petition is the Baltimore, Canton and Point Breeze Railway Company of Baltimore City, a corporation duly constituted and organized. The Mayor and City Council of Baltimore, by ordinance approved April 18th, 1892, granted permission to the relator to lay down and construct double iron railway tracks in certain streets of the city of Baltimore. These streets are designated in the first section of the ordinance. The tracks were permitted to commence on North Calvert between Fayette and Lexington, and to run eastwardly on Lexington, and over a number of other streets to the eastern limit of the city on O’Donnell street. The time for commencing and completing these tracks was limited in the twelfth section of the ordinance. As the construction of this section was earnestly debated at the bar, we think it proper to insert it in full; premising that the relator is duly invested with all the rights granted to the persons therein described as “the said proprietors, their associates and assigns.”
“And be it further enacted and ordained, that the said proprietors, their asssociates and 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 *242null 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 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.”
The petition for a mandamus alleged at the time of the approval of the ordinance a portion of Lexington street, on which the railway tracks were authorized, was not graded and paved, and that this grading and paving was not completed until the twenty-first day of October, eighteen hundred and ninety-three ; that a bridge over Jones’ Falls, which the tracks were authorized to cross, was not completed prior to September twenty-third, eighteen hundred ane ninety-three; and that a portion of Canton avenue, forming a part of its route, is not yet graded and paved. The petitioner further alleged, that it did commence laying its tracks within six months after the approval of the ordinance.
It further alleged, that on the seventh day of June, eighteen hundred and ninety-four, it made application in writing to the City Commissioner for permission to tear up the streets for the purpose of laying its tracks ; and that the Commissioner and the Mayor refused to grant the permission, and made under their signatures the following endorsement on the application: “Permit refused, on the ground that the provisions of Ordinance No. 50, approved April 19th, 1892, were not complied with in such manner as would authorize the construction of the road under said ordinance.” The prayer of the petition was for a mandamus requiring the Commissioner and the Mayor to approve the permission. By an ordinance of the Mayor and *243City Council' of Baltimore (approved November 25th, 1892), it was enacted that no person or corporation should, under any pretext, or for any cause whatever, dig up any of the streets, lanes or alleys of the city, or remove therefrom any of the stones, bricks, blocks, cement or other material with which the same may be paved, in whole or in part, without having first obtained a written permit therefor from the City Commissioner, approved by 'the Mayor. The answer of the respondents maintained that the relator had forfeited whatever right it had to lay down the tracks, by its failure to perform the conditions on- which the right was granted. After hearing, the Court below dismissed the petition for a mandamus, and the relator appealed to this Court.
The agreed statement of facts shows that on the seventh day of October, eighteen hundred and ninety-two, the relator laid thirty feet of the tracks of its railway on one of the streets designated as its route. It also shewed that at the time of the approval of the ordinance some portion of some of the streets, over which the track was to run, was ungraded and unpaved, and still is ungraded and unpaved. It also shewed that the Mayor had refused to give his approval of the tearing up the streets, because he believed that the relator had not complied with the provisions of the ordinance approved April 19th, eighteen hundred and ninety-two, and had not commenced the construction of the road within the time required by it, and had not completed it within the time so required. In the argument of the case, besides contending that the work on the road had been commenced in due time, the counsel for the railroad contended that by the true construction of the twelfth section of the ordinance it was not required to commence the work within six months after its approval, because some portions of the streets over which the tracks were to run were not at that time graded and paved. And it was contended that for the same reason the obligation to complete the road within twelve months after the approval of the ordinance *244was removed, and that it was not required to complete it until twelve months had expired after all the streets had been graded and paved which were ungraded and unpaved at the time when the ordinance was approved. Upon this basis it is maintained that the relator had the right to use the streets for the construction of its road, and that the Mayor, when he refused the desired permission, committed :an error which the Court ought to correct by the writ of ■mandamtis. Let us consider the nature of the duty which the Mayor was required to perform in this regard. The ordinance which requires the permit from the Mayor was not necessary to protect the streets from mere trespassers. The police force, in the ordinary discharge of its duties, was adequate to deal as effectually with them as with other law-breakers. But there are other persons of a far higher character who reasonably believe that they have a right to dig up the streets in the prosecution of their lawful business. It was not considered expedient that they should decide the question of right for themselves. The ordinance places the decision of the question, in the first instance, in the hands of the Mayor, by enacting that without his approval the streets shall not be torn up “ under any pretext, or for any cause whatever.” It does not enact, and could not competently enact that the Mayor’s decision should control the judgment of the Courts in any suit where they should bave jurisdiction of the question. But it imposes on him the duty of deciding whether, under given circumstances, it is proper that the streets should be dug up. He is required to decide the question for himself; the ordinance does not .subject his judgment to the control of any other person, official or unofficial. In deciding whether he would approve the permit in the present case, he would necessarily determine whether the relator had a right under the ordinance to use the streets for its railways. To do this, he would be •obliged to exercise his judgment-in construing the twelfth section of the ordinance. He would be confronted with the question whether the laying of thirty feet of the tracks, *245and then stopping, was such a commencement of the work as was contemplated by the ordinance, or whether it was a merely illusory act. If he decided that this was not a real commencement of the work, he would then consider whether the ordinance should be interpreted as meaning that the limitation of six months for the commencement of the work was inapplicable, if any of the streets lying in the route of the railway were unpaved and ungraded at the time when the ordinance was approved. And he would also have to determine whether, under the same circumstances, the relator was relieved from the obligation to complete the work within twelve months. The duty of approving or disapproving the permit imposed on the. Mayor, thus requiring the exercise of judgment and discretion, it cannot be controlled by the writ of mandamus. The authorities are uniform and consistent that it cannot issue in such a case, but only where the act is merely ministerial. In United States v. Seaman, 17 Howard, 225, the Supreme Court sums up its reasons why the writ should not issue against the respondent in that case, in these words: “ He was obliged, therefore, to examine evidence, and form his judgment before he acted; and, whenever .that is to be done, it is not a case for a mandamus.” And it contrasted the case before it with Kendall v. Stokes, 12 Peters. 524, where a mandamus was issued against the Postmaster-General commanding him to enter in the books of the department a credit in favor of the relators, which had been ascertained and fixed by law, and to which the Court said their right ought to be considered as irreversibly established. Of this case, the Court, speaking of the Postmaster-General, said: “ He was merely to record it. His duty, under that act of Congress, was like that of a Clerk of a Court, who is required to record its proceedings; or of an officer appointed by law to record deeds which a party has a right by law to place on record; or of the register of the treasury of the United States, to record accounts transmitted to him by the proper accounting officers, to be recorded. The duty in such cases *246is merely ministerial; as much so as that of a sheriff or marshal to execute the process of a Court.” After the repeated decisions of this Court to the effect that a mandamus will not issue in any case where discretion and judgment are to be exercised by a public officer, we do not think it any longer a subject for discussion. Green v. Purnell, 12 Maryland, 336 ; Devine v. Belt, 70 Maryland, 352 ; Madison v. Harbor Board, 76 Maryland, 398; Wailes v. Smith, Comptroller, 76 Maryland, 477, and many other cases.
The counsel for the relator argue that by the proper construction of section 12 of the ordinance of April 18th, eighteen hundred and ninety-two, it has the right to construct the road, and that, therefore, it was the Mayor’s duty to approve the permit to tear up the streets. The inference is drawn that we ought to compel him to do so by mandamus. But, as the Mayor’s judgment is to decide this question, we cannot entertain an appeal from his decision by means of this writ, and thus revise and reverse his determination. As a matter of course, if, in a case where we have jurisdiction, a suit involving the construction of the ordinance should come before this Court, we would not be bound by the Mayor’s opinion, but would pronounce such judgment as we thought to be right. .In Decatur v. Paulding, 14 Peters, 497, the widow of Commodore Decatur claimed a sum of money under a joint resolution of the Senate and House of Representatives. The Secretary of the Treasury, upon his construction of the resolution, in connection with an Act of Congress passed on the same day, decided that she was not entitled to the money ; and thereupon she applied for a mandamus to compel him to pay her. The Supreme Court, after saying that the Secretary must exercise his judgmment in expounding the laws and resolutions of Congress, under which he is required to act, proceeded as follows : “ If a suit should come before this Court, which involved the construction of any of these laws, the Court certainly would not be bound to adopt the construction given by the head of a department. And, if they *247supposed his decision to be wrong, they would, of course, so pronounce their judgment. But their judgment upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the Act of Congress, in order to ascertain the rights of the parties in the cause before them. The Court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or judgment. Nor can it, by mandamus, act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties.” For these reasons, I think that we must affirm the judgment of the Court of Common Pleas.
(Filed April 4th, 1895.)