Tighe v. Osborne , 149 Md. 349 ( 1925 )

Ordinance No. 334 of the Mayor and City Council of Baltimore is in my opinion a valid enactment. It indicates no purpose to extend its operation beyond the proper limits of the police power which the State has authorized the city to enforce. Adequate protection of individual rights is afforded by provisions for administrative investigation and review of the facts and merits of each case to which the ordinance may apply, and for a judicial determination as to the legality of any action by which an interested person may be aggrieved. I see no justification in the record for the appellant's refusal to submit her application for a building permit to the processes of inquiry and decision which the ordinance prescribes.

Under its charter the City of Baltimore is entitled to exercise the police power of the State within the limits of the municipality. Charter of Baltimore, art. 1, sec. 18; Rossbergv. State, 111 Md. 394; Osborne v. Grauel, 136 Md. 88. It was the evident purpose of Ordinance No. 334 to apply that power to the regulation of the use of buildings thereafter proposed to be constructed or to be converted to purposes different from those for which they were previously utilized. In providing that the permits applied for should be granted unless the intended use would "create hazards from fire or disease," or "menace the public welfare, security, health or morals," the ordinance used terms which have been employed by this Court to define the limitations of the police power. Goldman v. Crowther,147 Md. 282; Byrne v. Maryland Realty Co., 129 Md. 210; Brown v.Stubbs, 128 Md. 129; Stubbs v. Scott, 127 Md. 86; Cochran v.Preston, 108 Md. 220; Bostock v. Sams, 95 Md. 400.

It should be presumed that the ordinance used the words "public welfare" in a sense consistent with their use in the cases just cited, all of which were decided before the ordinance was passed. It would hardly be feasible to specify in an ordinance all of the conditions which would justify the refusal of building and use permits in the interest of the public health, morals, safety and welfare, or to dispose by special ordinance of each application as it is presented. Building operations in the city, and the municipal business, would be seriously inconvenienced if such questions had to be determined, as they currently arise, by the legislative action of the city council. It was necessary and permissible that the duty of ascertaining the facts, and of granting or refusing permits as circumstances require, should be committed to municipal officers under general directions as to the purpose and scope of their discretion. There are numerous decisions which recognize the validity of such delegations of administrative authority. Some of the decisions having that effect were rendered in Mahler v.Eby, 264 U.S. 32, 40; Mutual Film Corporation v. OhioIndustrial Com., 236 U.S. 230; Union Bridge Co. v. UnitedStates, 204 U.S. 387; United States v. Grimaud, 220 U.S. 506;Philadelphia Co. v. Stimson, 223 U.S. 605; Goldman v.Crowther, supra; Smith v. Standard Oil Co., 149 Md. 61; Osbornev. Grauel, supra; Creaghan v. Baltimore, 132 Md. 442; State v.Hyman, 98 Md. 596; State v. Broadbelt, 89 Md. 565; Deems v.Baltimore, 80 Md. 164; Boehm v. Baltimore, 61 Md. 259.

The discretion which the Zoning Commissioner may exercise under the ordinance is not unlimited. Some of the considerations which must influence his judgment are specifically stated, and he is charged with the duty of investigating all conditions which may aid him in determining whether the public health, safety, morals or welfare would be prejudiced by the building construction or use for which a permit is requested. This is a question of fact which the city is entitled to have determined before the permit is granted. If the intended use of the applicant's property is found to be inimical to some public interest which the police power should protect, the Zoning Commissioner is not authorized to grant a permit, and if the public welfare, health, morals or safety would not be injuriously affected, the permit could not properly be refused. It is the purpose of the ordinance that the commissioner's duty shall be intelligently and impartially performed. The violation of his duty should not be anticipated and assumed as a ground upon which to declare the ordinance invalid.

Upon appeal from a decision of the Zoning Commissioner, any error of judgment which he may have committed can be corrected by the Board of Zoning Appeals, and if the legality of its action is doubted, that question can be presented for judicial determination in the Baltimore City Court. The provision for an appeal to that court conforms to the decision in Goldman v.Crowther, supra. The considerations which must govern the action of the Board of Zoning Appeals, as provided by the ordinance, are the same as those by which the Zoning Commissioner's decision is to be controlled. If he acts upon an erroneous conception of the police power, by refusing a permit solely because of conditions to which that power has no legitimate relation, and if the Board of Zoning Appeals confirms such an error, the illegality of the order can be demonstrated and determined in the Baltimore City Court on the further appeal which the ordinance allows. The question to be decided on the appeal to that tribunal is whether the order appealed from was passed in violation of any principle or rule of law or procedure, with consequent injury to the appellant's rights. If an order is contested as illegal upon the ground that it transgresses the lawful limits of the police power, it is the function of the court designated in the ordinance to consider and decide whether the conditions proved in the case are such as to admit of a legal inference that the property use for which a permit is sought would tend to menace the public health, safety or morals, or any other public interest to which the police power may be constitutionally applied.

The fact that the ordinance omits to provide for an appeal to this Court does not impair its validity. The Baltimore City Court is possessed of competent jurisdiction to decide the appealable questions of legality in cases arising under the ordinance, and there is no constitutional ground of objection that its decision would be final so far as the jurisdiction of the state courts is concerned. In proceedings for the acquisition of private property under the power of eminent domain there are frequently questions of constitutional right to be determined by the courts to which the inquisitions are returned, but where no appeal from their orders in such cases is provided by statute, the finality of their action, as to any question within the scope of their jurisdiction, has been uniformly recognized by this Court. New York Mining Co. v. Midland Co., 99 Md. 506; Hopkinsv. P.W. B.R. Co., 94 Md. 263; Moores v. Bel Air Water andLight Co., 79 Md. 391; Francis v. Weaver, 76 Md. 457;Greenland v. County Commissioners, 68 Md. 59.

The validity of the ordinance in question is supported by the decisions in Easton v. Covey, 74 Md. 262, and Farmers andPlanters Co. v. Salisbury, 136 Md. 617. In the first of those cases the ordinance there in dispute prohibited the erection of any dwelling house, barn, shed, stable, storehouse, warehouse or shop, within the limits of Easton, without a permit obtained from the commissioners of the town through their clerk. An application for a permit to erect a frame stable having been refused by the commissioners, the applicant sued for a writ of mandamus to require that the permit be issued. The order of the circuit court granting the mandamus was reversed on appeal, and the ordinance was held to be a valid exercise of the police power conferred upon the municipality by its charter. In the second of the cases last cited, an ordinance of Salisbury, passed in pursuance of its charter police power, provided that no building within the corporate limits of the town should be erected or repaired without a permit from the mayor and council, and that the application for the permit should state the proposed location of the building, its size, and the materials of which it was to be constructed, and the purpose for which it was to be used. Upon the refusal of an application for a permit to erect an addition to a building to be used for storing, mixing and bagging fertilizers, a bill was filed for an injunction to compel the issuance of the permit and prevent the town from interfering with the erection of the building while the suit was pending. A decree dismissing the bill was affirmed on appeal, and the ordinance was sustained as a constitutional exercise of municipal power.

In Goldman v. Crowther and Bostock v. Sams, supra, the ordinances were directed to specific purposes which were held to be unconstitutional. The case of Stubbs v. Scott, supra, was concerned with a particular administrative decision under a building ordinance. In Hagerstown v. Baltimore and Ohio R. Co.,107 Md. 178, and Baltimore v. Radecke, 49 Md. 230, ordinances were held invalid on the ground that they conferred arbitrary and unrestricted discretion upon the municipal authorities. But the ordinance involved in this case restricts the discretion of the officials by whom it is to be administered, and confines its operation within constitutional limits, by providing that permits for the construction or altered use of buildings shall not be refused except for specified reasons within the purview of the police power as judicially defined. The provisions of the ordinance give me the impression that it was written in a studious effort to apply only such principles as this Court has approved. It is more explicit than the Easton and Salisbury ordinances in its description of the conditions with reference to which the issuance or refusal of building and use permits should be determined. The duty of acting upon applications for permits under those ordinances was committed to the members of the governing bodies of the municipalities, while the Baltimore ordinance provides for its execution by an administrative officer. But provision is made for the review of his decisions by a municipal board of appeal and by a court of justice. The right of the city to commit the duty of administering the ordinance to one of its officials is undeniable, in view of authorities already cited, and the provisions in the ordinance to that end do not distinguish this case in principle from the cases in which the police powers of Easton and Salisbury, as exerted for the protection of the welfare of those communities, by the regulation of building construction and uses, were under consideration. The ordinance now before us cannot, in my judgment, be invalidated consistently with those decisions, and I am unwilling to join in overruling them or modifying their effect. The opinion in the Easton case was delivered by Judge Miller, with the concurrence of Chief Judge Alvey and Judges Robinson, Irving, Bryan, Fowler, McSherry and Briscoe. It may be safely assumed that there was no lack of concern on the part of those judges for the constitutional rights of the citizen, whose desire to erect a stable in Easton they were unable to gratify. Their decision was followed unanimously and without qualification by their successors in the comparatively recent Salisbury case. The principle upon which the Court sustained the Easton and Salisbury ordinances should be equally available for the promotion of the public welfare of the City of Baltimore. I am unable to agree with the majority conclusion, because I think it places too strict a limitation upon the right of the city to regulate its development for the general benefit of its rapidly increasing population.