Applestein v. Mayor of Baltimore

⁴² Offutt, J., delivered the opinion of the Court. This appeal grows out of a protracted and bitter controversy over the location of a drug store and a grocery store in a building at the northwest corner of Gwynn Oak and Oxford Avenues in Baltimore City, and involves the following facts: The building is a two-story brick and tile structure, the first floor of which is adapted for store purposes while the second story is divided into apartments. It is owned by Harry Applestein and Rena Applestein, his wife, who on November 8th, 1927, applied to the buildings engineer of Baltimore City, also referred to as the zoning commissioner, for permission to use the first floor of it for two stores, one a drug store and one a grocery store. In ordinary course the application was considered, approved, and a permit authorizing the location of the two stores on the property granted.

Thereupon the Howard Park Improvement Association and Albert E. Barker appealed from the decision of the buildings engineer to the board of zoning appeals of Baltimore City. That body, on December 13th, 1927, with-v out having heard any testimony, and without assigning any reason for its action, reversed the order of the buildings engineer, and disapproved the permit. The applicants then filed in the Baltimore City Court a petition for a writ of mandamus against the buildings engineer, and the Mayor and City Council of Baltimore, in which, after alleging the facts to which we have referred, they said: “That the action of said board of appeals was arbitrary, unreasonable and without any just basis, and that said board took such action without producing any witnesses to furnish any substantial reason for such action or without any evidence of any kind before it that would furnish the basis of such action, and that such action was in violation of said Ordinance 825.” Hpon those facts they prayed the court to issue the writ of mandamus “against the defendants ordering and compelling them or any of them to issue to your petitioners a permit to use the property as requested in accordance with the terms of Ordinance No. 825 above referred to.” Later, the board ⁴³ of zoning appeals and Albert E. Barker, a protestant, were joined as defendants, a demurrer to the petition was filed and overruled, answers were filed by all the defendants but Barker, testimony was taken, the case was argued and, on March 31st, 1928, the petition was dismissed. Prom that order this appeal was taken.

While the issue raised by the pleadings in the mandamus proceeding was simple and direct, to wit: whether the board of zoning appeals had arbitrarily and without any lawful reason denied appellants’ application, the evidence adduced in the Baltimore City Court took a wide range and covered many collateral and wholly irrevelant matters, such as the good faith of the applicant in procuring the introduction of a certain ordinance of the Mayor and City Council of Baltimore, the fact that his privies in title had made other applications of the same character for the same property which had been refused, and whether the building itself had been erected in compliance with the permit issued therefor. To review all of this evidence would be quite idle, and reference will be made to only so much of it as is needed to indicate the nature of the controversy, and explain the issues. The land on which the building stands was formerly owned by one Haskel Feldman, who-, on January 27th, 1926, filed an application in the office of the buildings engineer for a permit to erect on it a building to be used for a drug store and a grocery store. Residents of Howard Park protested against the issuance of the permit, and it was refused on March 20th, 1926.

On April loth, 1926, Feldman filed another application which was substantially the same as the first. Again there was a protest and again the permit was refused. He then appealed to the board of zoning appeals, which also' refused the permit, and then to the Baltimore City Court, which affirmed the action of the board of zoning appeals, and there the matter rested until October, 1926. During or shortly after that month Ordinance 896 was introduced in the city council of Baltimore', authorizing Harry Applestein, Feldman’s son-in-law, to erect a two story brick building for use as an apartment house and store property ⁴⁴ on the lot formerly owned by Eeldman at the northwest corner of G-wynn Oak and Oxford Avenues, and that ordinance eventually was adopted, approved on November 20th, 1926, and, on December 1st, 1926, the property was conveyed to Applestein and his wife by Ida Eeldman, who had acquired it from her husband.

About the middle of December, 1926, Applestein began work on the building, which was immediately noted by officials of the Howard Park Improvement Association, who promptly procured the introduction of an ordinance to repeal Ordinance No. 896, which was also passed, and, on February 5th, 1927 approved. Applestein then filed a bill in Circuit Court No. 2 of Baltimore City to restrain the operation of the repealing ordinance, and that bill was dismissed on the ground that Eeldman had induced a member of the council to introduce the ordinance by falsely informing him that there was no opposition to it, and had thereby committed a fraud. On March 30th, 1927, Applestein applied for permission to use the property for four apartments, a permit authorizing that use was issued, and the work of erecting the building was resumed. During the progress of the work Applestein was continually harried by the improvement association, which complained that hel was departing from the plans approved for the erection of an apartment house, and was actually constructing a building which could be used for stores.

Their apprehensions were probably well founded, for, on June 6th, 1927, Feldman procured the introduction of still another ordinance in the city council to secure permission to use the property for store purposes. The council referred the matter to the zoning board “for advice” and when that board disapproved the ordinance, it was defeated. There the matter again rested until the application involved in this appeal was filed. It is apparent from a reference to these many, intricate, and confused proceedings, extending over a period of nearly three years, and involving, as they do the legislative, judicial, and administrative branches of the city government, that they have arisen from a determined effort on the part of the ap ⁴⁵ pellants to locate an ordinary chain grocery store and an ordinary drug store on their property on Gwynn Oak and Oxford Avenues, and an equally determined effort on the part of certain residents of that neighborhood to prevent them from doing’ so.

That they had the right to use their property for the purposes contemplated, so long as such use did not substantially menace the public health, security, or morals, or create hazards from fire or disease, is declared by the ordinance. The engineer of buildings and the board of zoning appeals, therefore, in dealing with appellants’ application for a permit, were strictly limited by the ordinance, from which they derive such authority as they have, to determining whether the proposed use would create a hazard from fire or disease, or would menace the public security, health, or morals, and unless they affirmatively found, after a. fair and actual consideration of all relevant facts, that it would have such an effect, the appellants were entitled to have the permit for which they applied issued to them. As has been stated, appellants in their petition charge that the board of zoning appeals, in refusing the permit, acted arbitrarily, unreasonably, and without evidence of any kind before it, and in their brief they charge that the “real reason” for the board’s action was an attempt to keep alive certain provisions of the zoning ordinance which were held by this court to be invalid. So that the major questions presented by the appeal are (1) whether, assuming that the board of zoning appeals did exceed its powers in refusing appellants’ application, a petition for a writ of mandamus will lie in this case, and (2) whether in fact the act of the board was ultra vires and void.

It is fundamental that the writ will not lie if the appellants have any other adequate and convenient remedy, George's Creek Coal, etc., Co. v. Allegany County Commrs, 59 Md. 255 ; Legg v. Annapolis, 42 Md. 203 ; Booze v. Humbird, 27 Md. 1 ; State v. Graves, 19 Md. 351 , 81 Am. Dec. 639 ; 38 C. J. 559; and it is generally held that the right to have the facts upon which the petition for the writ is based reviewed upon appeal is a sufficient remedy, and that ⁴⁶ one who fails to- take advantage of it is not entitled to the writ of mandamus. 38 C. J. 565; State etc. v. County Commrs., 46 Md. 621 . And while there is authority for the proposition that, where the remedy by appeal will result in unreasonable delay, or, as a result of circumstances peculiar to the case, will occasion substantial loss or damage, that the writ may issue, it is inapplicable here, because the utmost relief that could be obtained through the remedy by mandamus would be to require the zoning board of -appeals to perform the duties imposed upon it by law. And the appellants can obtain that relief as speedily by filing a new application for a permit, for it cannot be assumed that public officials will not fairly and adequately discharge the duties of their respective offices.

The real question, then, is whether the appellants could have appealed from the decision of the zoning board of appeals to the Baltimore City Court. The prayer of the'petition asks that the writ issue to compel the defendants, “or any of them” to issue a-permit authorizing the appellants to use their property for the purposes stated in the petition. But obviously, unless the ordinance under which the application was made is itself invalid and void, the court would not be authorized to grant that relief until after the applicant had exhausted all the remedies open to him under the ordinance, and the permit had been refused as a result of the refusal of the agencies empowered to deal with his application to consider it at all, or as the result of some unlawful or ultra vires act on the part of such agencies in dealing with it. The validity of the ordinance is conceded by the appellants, and, for the purposes of this opinion, will be assumed.

And since the buildings engineer granted the permit, and the zoning board of appeals did actually consider the application, the specific complaint of the appellants was that that board acted ultra vires in disapproving it. Under the ordinance the buildings engineer was required to “grant permits unless the proposed use of buildings or structures, or changes of use, would create hazards from fire or disease, or would menace the public secu ⁴⁷ rity, health or morals, and in determining whether any proposed use of buildings or structures or change of use would create hazards from fire or disease, or affect the public security, health or morals, the building engineer and the board of zoning appeals on appeal shall give consideration to the following facts in so far as they or any of them may relate thereto: “(a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application; “(b) The number of persons residing, studying, working in or otherwise occupying buildings adjoining or in the vicinity of the property mentioned in the application; “(c) The location, kind and size of surface and subsurface structures in the vicinity of the property mentioned in the application, such as water mains, sewers and other utilities; “(d) Traffic conditions; “(e) Materials of a combustible, explosive or inflammable nature to be sold, stored or kept on the premises.” So that the board of zoning appeals and the buildings engineer, in respect to the granting of buildings or use permits, had no power to refuse such permits, unless it appeared from actual and substantial evidence of some character that the proposed use would create hazards from fire or disease, or would menace the public security, health or morals. Necessarily t-he board of zoning appeals derives all of its powers from the ordinances, creating it and prescribing its duties., and except as granted by such ordinances it has no powers. Any order or decision it made, or any action it took, not within the terms of the grant, are therefore ultra vires and void; since it had no power to refuse the permit except upon the grounds stated in the ordinance, if it refused it for any other reason, its act was ultra vires and unlawful.

Moreover, since the burden of supporting its refusal rested upon it, it was bound to show reasons sufficient to support the authority it exercised, for, as was said ⁴⁸ in Boarman v. Patterson, 1 Gill, 381 : “Where a special limited jurisdiction, distinct from and not embraced by its general jurisdiction, is conferred by act of assembly on any tribunal, its power to act, as it has done, must appear upon the face of its proceedings.” In Dorsey v. Dorsey, 28 Md. 394 , the court in effect said much the same thing, and in Kane v. State, 70 Md. 546 , it added that “this maxim, ommia praesumuniur rite esse acta, does not apply to inferior courts, and proceedings by magistrates, or others, acting judicially under special statutory powers, so- as to give jurisdiction. In all such cases, every fact required by the statute to give jurisdiction must appear on the face of the proceedings, either by averment, or by reasonable intendment. Boarman v. Israel, 1 Gill, 372, 381 ; Swann v. Cumberland, 8 Gill, 150 . But if it appear that jurisdiction was obtained, both of the person and subject matter, and that such jurisdiction has not been exceeded, the validity of the judgment rendered will not be affected by the fact that there may have been irregularities and want of form in the proceeding upon which the judgment is founded.” These cases, it is time, dealt with the acts of judicial officers acting under a special limited statutory jurisdiction, but the reasoning upon which they rest applies with even greater force to the acts of an official or board exercising at least quasi judicial powers.

For the rule that the acts of p-ublic officials done in the performance of ministerial or administrative duties will be presumed to be valid and regular (Gregg v. Pub. Serv. Commn., 121 Md. 1 ), has no application to a case where the effect of the act is to deprive a citizen of his property or vested rights. 22 C. J. 141. .The exemplification of that exception to the general rule was thus stated in Polk v. Rose, 25 Md. 160 , where the court was dealing with a tax sale: “While the maxim of law 'omnia rite praesumuntw1’ is appropriate only to judicial proceedings, no intendment in respect to the exercise of it is to be made in favor of a specially delegated power; so- that every act, the performance of which is made a condition precedent .to the validity of the acts of a special agent, whether appointed for a public or private purpose, must be ⁴⁹ shown by proof. The onus is upon the purchaser at a tax sale, he must establish affirmatively that the officers acted strictly in conformity with the law.

The acts of the officers are matters in pais; their existence is not made out by intendment but must be proved.” And in Knox v. Kearney, 37 Nev. 393 , where the court, referring to the acts of the acting state engineer of the State of Revada and the water engineer of the Muddy River water