The opinion of the court was delivered by: Mr. Chief Justice Marshall delivered the opinion of the Court.
THIS cause was argued by Mr. Key for the appellant, and by Mr. Jones for the respondent.
This is an appeal from a decree of the Circuit Court of the United States for the county of Washington, in the District of Columbia, on the following case:
In the year 1797, the Legislature of Maryland, among certain additional powers given to the Corporation of Georgetown, enacted, that they 'shall have full power and authority to make such by-laws and ordinances for the graduation and levelling of the streets, lanes and alleys within the jurisdiction of the same town, as they may judge necessary for the benefit thereof.'–Act of Nov. 1797, c. 56. s. vi. p. 35.
In pursuance of this authority, the Corporation passed an ordinance in May, 1799, for the graduation of certain streets–the first section of which appoints commissioners, and authorizes them 'to make the level and graduation of the streets;' and the second is in these words: 'And be it ordained, that the said level and graduation, when signed by the said commissioners or a majority of them, and returned to the clerk of this Corporation, shall be forever thereafter considered as the true graduation of the streets so graduated, and be binding upon this Corporation, and all other persons whatever, and be forever thereafter regarded in making improvements upon said streets.'
The plaintiff in error owned lots upon one of these streets, and made improvements thereon, according to the graduation made and returned to the clerk of the Corporation, under the directions of this ordinance. In September, 1816, the corporation passed another ordinance, directing the level and graduation of this street to be altered; and the commissioners appointed, being about to cut down the street by the plaintiff's house, were enjoined from proceeding by a bill filed by the plaintiff against them and the Corporation.
Upon the final hearing of this case, the Circuit Court dismissed the bill, being of opinion that the Corporation had the power asserted in their answer, of altering the level and graduation of a street graduated under their former ordinance of May, 1799.
The counsel for the appellant contends, that the Circuit Court erred in dismissing his bill, because,
1st. The power to graduate streets as given by the Legislature of Maryland, was not a continuing power, but was completely executed by the ordinance of May, 1799, and has never been renewed.
2d. The ordinance of May, 1799, is in the nature of a compact, and is unalterable.
1. The language of the act certainly does not imply that the power it confers is exhausted in its first exercise. The power is not 'to graduate and level the streets,' or 'to make a by-law for the graduation and levelling of the streets;' but 'to make such by-laws and ordinances for the graduation and levelling of the streets, &c. within the jurisdiction of the same town, as they may judge necessary for the benefit thereof.'
The act seems to contemplate a continuance of the power, and a repetition of the by laws and ordinances, as the Corporation 'may judge necessary for the benefit of the town.' It gives a power to legislate on the subject, and to pass more than one by-law and ordinance respecting it. Unless, then, there be in the nature of the operation something which forbids its repetition, the words of the act import no such prohibition.
There can be no doubt that the power of graduating and levelling the streets ought not to be capriciously exercised. Like all power, it is susceptible of abuse. But it is trusted to the inhabitants themselves, who elect the corporate body, and who ...