concurring in the result:
I concur in the result in this case and in the statement in the majority opinion that a reversal of the Metropolitan Transit Authority’s (MTA) order in this case would have to be predicated on its having acted unreasonably, arbitrarily or unjustly. I further agree that the order of the MTA is not the result of arbitrary, unreasonable and capricious action on its part and its order should be affirmed.
I disagree with the opinion of the majority that principles of the doctrine of res judicata could apply to the action of an administrative body because the action of administrative bodies in this State is always legislative or executive, and not judicial, *102in character. My views on this question have been expressed fully in my concurring opinion in Hyson v. Montgomery County Council, 242 Md. 55, 77-84, 217 A. 2d 578 (1966), and my dissenting opinions in Woodlawn Area Citizens Association v. Board of County Commissioners of Prince George’s County, 241 Md. 187, 203-13, 216 A. 2d 149 (1966) and MacDonald v. Board of County Commissioners for Prince George’s County, 238 Md. 549, 586-88, 210 A. 2d 325 (1965) and need not be repeated here. As I pointed out in my dissent in Woodlamn, since Article IV of the Maryland Constitution vests exclusive judicial power in the courts of this State, it is, therefore, constitutionally impossible to delegate judicial power — quasi or otherwise—to either executive or legislative boards or commissions. Our predecessors specifically held this in Dal Maso v. Board of County Commissioners of Prince Georges County, 182 Md. 200, 34 A. 2d 464 (1943), and although the rationale of Dal Maso has been criticized by Professor Davis in his work on Administrative Daw, the case has never been overruled by this Court and we are, therefore, bound to follow it.
The Dal Maso holding does not mean that in performing its legislative functions a mere change of mind by an administrative body may not indicate arbitrary, unreasonable and capricious conduct amounting to a denial of due process of law for that reason in particular cases, but the principle on which the legislative action is held to be invalid is that of unreasonable, arbitrary and capricious conduct, and not the doctrine of res judicata. I pointed out in my dissenting opinion in Woodlamn that this distinction is not merely a matter of semantics, but involves fundamentally different concepts of constitutional law. (241 Md. at 208-09, 216 A. 2d at 162).
In my opinion, the majority opinion in the present case is in error in its statement that there have been any substantial or significant changes in conditions and circumstances in the Rodgers Forge-Gaywood area during the four year interim between the order of the Public Service Commission (PSC) in 1961 and the order of the MTA in 1965. The same streets are involved, the same traffic conditions are present and the same type of busses were owned by the Baltimore Transit Company when both orders were passed. J. Brooke Duvall, Jr., vice president *103of the Baltimore Transit Company, testified that there was no change in the interim period :
“Actually, there has been no change since the 1961 situation. At that time the Company on its own, in conjunction with the Staff of the then Public Service Commission and the then Traffic Engineer of Baltimore County, made the determination that the use of Blenheim Road and Hopkins Road would be preferable to that of Dunkirk. There has been no change in the situation in the intervening time, other than now we have an additional agency in the form of the consultants engaged by the Authority to make this study, we have come to the same conclusion, and subsequently, the Metropolitan Transit Authority Staff has come to the same conclusion and the present Traffic Engineer of Baltimore County has come to the same conclusion.
* * *
“Q. Would you give an opinion, if you have one as to whether or not these 40-foot buses can feasibly operate the Dunkirk Avenue route? A. No. We do not think so. That is why I say the situation hasn’t changed because we had that length bus back in 1961. It was one of the factors that we were keeping in mind in making our determination back in 1961.”
Surely the mere passage of time with its inevitable depreciation of facilities, houses and other improvements, is not sufficient to result in a “change of conditions.” These types of changes are always present in any case supposedly involving the doctrine of res judicata, and if sufficient, would nullify the application of the doctrine in every case.
The MTA—as successor to the PSC—in exercising its delegated legislative power, had the power to come to a different conclusion in 1964 than did the PSC in 1961 on the same facts, and unless that action was arbitrary, unreasonable and capricious (which it clearly was not in this case), the courts should not disturb that action by the MTA.
Even if it be assumed, arguendo, that in those cases involv*104ing the exercise of a so-called “quasi-judicial” function, a doctrine similar to that of res judicata could be applied, it is clear to me that the exercise of power by the MTA in the present case is not “quasi-judicial.” Rather it is the exercise of a delegated legislative power, so that upon the same facts the administrative body may properly reach a different conclusion from the one reached previously. Our predecessors indicated this in Public Service Commission v. Byron, 153 Md. 464, 138 Atl. 404 (1927).
In Byron, the municipality of Hagerstown, on July 28, 1923, had applied to the Public Service Commission for a certificate of authority to build, maintain and operate a new electric plant. Upon the protest of the Potomac Edison Company and other taxpayers of Hagerstown, the PSC after a hearing filed, on December 31, 1923, an opinion and order refusing the certificate. Hagerstown reviewed its former application on April 9, 1926. Again, there were protests, but after a hearing, the PSC, on September 29, 1926, filed an order authorizing the work to be done and the necessary bonds issued. The opinion does not indicate that the factual situation was any different in 1926 than it was in 1923. An appeal was taken to the Circuit Court of Baltimore City. That court, by its decree of April 30, 1927, reversed the order of the PSC. This decree was reversed on appeal, Judge Parke, for the Court, stating:
“Against this evidence and fair inferences the testimony of the appellees was not sufficient to prevail on a question of unreasonableness. It may be economically unwise for electric current and power to be generated and sold by the municipality as the proprietor of a public service enterprise, but about this reasonable men may differ, as isi demonstrated by the fact tint the commission in 1923 was unanimously of the opinion that the certificate ■of authority should not be granted, and less than three years later, with a change of but one member, was a| unit in granting the certificate of authority sought. In our judgment the evidence establishes the order neither to be unlawful nor unreasonable, and this conclusion will result in a reversal of the decree passed on April 30th, 1927.” *105(Emphasis supplied). (153 Md. at 490, 138 Atl. at 414.)
See also Albert v. Public Service Commission, 209 Md. 27, 37-38, 120 A. 2d 346 (1956).
All of the cases relied on in the majority opinion for the proposition “that a mere change of mind is not an adequate or valid reason for reversing a previous finding,” i.e., Schultze v. Montgomery County Planning Board, 230 Md. 76, 185 A. 2d 502 (1962); Kay Construction Co. v. County Council for Montgomery County, 227 Md. 479, 177 A. 2d 694 (1962) ; Whittle v. Board of Zoning Appeals of Baltimore County, 211 Md. 36, 125 A. 2d 41 (1956); Board of Zoning Appeals of Baltimore City v. McKinney, 174 Md. 551, 199 Atl. 540 (1938) were all cases involving the so-called “quasi-judicial” functions of an administrative body and not the exercise of a delegated legislative function as is involved in the case at bar.
As Professor Davis states in his Administrative Daw Treatise, Sec. 18:03:
“Some administrative determinations are clearly without res judicata effect in any circumstances—a zoning board after hearing amends a regulation, a utilities commission prescribes a maximum rate, the CAB decides which of two airlines should provide a particular service, or the NLRB refuses to issue a complaint on a particular charge.”
The determination by the MTA in this case is most certainly this type of determination.