Bostock v. Sams

Jones, J., delivered the opinion of the Court. This case originated in a petition for a mandamus filed in the Court of Common Pleas of Baltimore City by the appellants against the appellees to compel the latter to issue to the former a permit to erect a building upon a lot situated at the northeast corner of Mount Royal and Maryland avenues in the city of Baltimore. The case will turn upon the powers and duties of the appellees, composing the Appeal Tax Court, a sub-department of the municipal government of Baltimore City under the provisions of its charter, in respect to the issuing of a permit of the kind applied for. These powers and duties are defined in the following provisions of the ordinances of the city now codified and appearing in the City Code, (1893), in Article 50, as secs. 24, 25, 27 and 28 and which read as follows : Section 24 “It shall not be lawful for any person, without a permit from the Appeal Tax Court, to erect within the limits of the city any building upon a new foundation, whether in connection with an existing building or not, or to pull down any old building or part of a building to the ground, and build upon the old foundation, or to put an additional story upon any building or part of a building by increasing the height of the walls : and any person or persons who may build within the city of Baltimore shall be required to take out a permit for each and every house he or they may purpose to build.” • ⁴⁰⁸ Section 25. “All persons receiving permission for the erection of any special improvements from the City Council shall, before commencing the erection of the same, obtain the endorsement of the Appeal Tax Court on said permit.” Seetion 27. “Whenever application accompanied by the payment of the cost of the advertisement provided for in section 28 is made to the Judges of the Appeal Tax Court for a permit or permits to erect any new building or buildings on any street or avenue of the width of fifty feet or more, the person or persons making such application shall be required, before such permit or permits shall be granted, to file with the Appeal Tax Court a plat accurately describing the piece or parcel of ground to be improved, giving the front and depth thereof, its distance from the nearest established corner of a street, lane or alley, and the number of improvements (if more than one) proposed to be erected thereon ; also an accurate description of the frontage, height, depth, material to be used in the proposed building or buildings and the general appearance and cost of same.” Section 28. “It shall be the duty of the Judges of the Appeal Tax Court to grant such permits on application, without charge, except as hereinbefore provided, and to keep a record of all permits issued; provided, that no such permit shall be granted unless in the judgment of the said Judges of the Appeal .Tax Court, or a majority of them, the size, general character and appearance of the building or buildings to be erected, will conform to the general character of the buildings previously erected in the same locality, and will not in any way tend to depreciate the value of surrounding improved or unimproved property ; and provided further, that before any such permit shall be granted, at least ten days notice by advertisement inserted in some daily newspaper shall be given by the Appeal Tax Court that application for such permit has been made.

And before any permit shall be granted to erect any building or buildings within the limits of the city of Baltimore, the applicant shall first satisfactorily prove to the Judges of the Appeal Tax Court that provision has been made for such drainage as the topography of the ground re quires.’ ⁴⁰⁹ The petition for mandamus filed by the appellants alleged that the appellant, Frank C Bostock, had leased for a valuable consideration from a certain William P. Harvey, who was the owner thereof, the lot of ground which has been referred to, and was in possession thereof with authority from the owner to erect thereon the building for the erection of which a permit was applied for; and that he had entered into an agreement with the appellant, Edgar M. Noel, to erept for a consideration a building on the said lot; and that for the purpose of executing this agreement the said Noel had duly applied to the Appeal Tax Court for a permit to erect said building. The petition then sets out the provisions of the ordinances of the city regulating the application for and the granting of permits for the erection of buildings within the city and shows upon its face that all of the requirements of the said provisions were complied with by the appellants in making application for the permit which they seek to have granted in this case. The petition then shows that the appellees composing the Appeal Tax Court refused the application of the appellants for a permit to erect the building therein indicated and passed an order to that effect in which they assigned as reasons for their refusal, that the plans and specifications for the proposed building “presented to the inspector of buildings and examined by the Appeal Tax Court” did not in their opinion “conform to the general character of the buildings in the said locality,” and that the use of the building proposed to be erected “will be for the purposes of a ‘zoo ” among which purposes was “to show wild animals, in reality conducting a continuous circus upon one of the most beautiful streets in the city of Baltimore.” It also appeared from the petition that Mount Royal avenue, the street upon which the building was proposed to be erected was more than fifty feet in width. The appellees in their answer admit all the allegations of fact of the petition except those contained in the first paragraph thereof, which were that the appellant, Bostock, had leased and was tenant in possession of the lot upon which the ⁴¹⁰ building for the erection of which the permit was applied for, was to be erected,* and had entered into an agreement with the appellant Noel, to construct a building thereon.

These allegations they refused to admit and called for proof of the same. The defense made by the answer was in substance and effect that the appellees had a discretion as to the granting or refusing of the permit and were justified in their refusal thereof because the building for which the permit was applied for, “would not conform to the general character of the buildings previously erected in the same locality, and would tend materially to depreciate the value of the surrounding improved or unimproved property.” The answer was demurred to and the demurrer was overruled. The petitioners then joined issue upon that part of the answer which did not admit the allegations óf the petition contained in the first paragraph thereof, and demurred to all other parts thereof which demurrer being overruled the petitioners joined issue thereon “as far as said answer in any way denies the averment of facts contained iri the petition. ” The case was then tried before the Court without a jury. Testimony was taken arid there was proof on the part of the appellants going to show that the appellant Bostock had, with the owner of the lot upon which the proposed building was to be erected, a contract founded upon a valuable consideration which gave hiin the right to erect a building upon said lot and that said Bostock had possession of the lot for that purpose if a permit could, be obtained ; and that he had entered into an agreement with the appellant Noel for a consideration to have a building erected thereon.

At the conclusion of the testimony the petitioners offered a prayer to the effect that if the Court should find from the evidence, (i) “That on the 22nd day of October, 1901, the petitioner, Frank C. Bostock, was and now still is, the tenant in possession of the lot of ground mentioned in the petition, with authority from the owner thereof to erect thereon the building mentioned in said petition (2) “and that on said day the petitioner, Edgar M. Noel, as agent and builder for the petitioner, Frank C. Bos ⁴¹¹ stock, applied for the permit mentioned in said petition (3) “That then under the pleading in this case the verdict must be for the petitioners.” This prayer was refused by the Court to which refusal the petitioners excepted. The Court ordered that the writ of mandamus be refused and the petition therefor be dismissed. From this order the petitioners have appealed. It will be seen from the course of the pleading and the nature of the defense relied upon by the appellees that the most important and the substantial inquiry involved in the case before us is as to what lawful discretion is given to the appellees to withhold a permit, upon application made, by virtue of the proviso in the ordinance of the city regulating the issuing of permits which is embodied in section 28 of the City Code and which reads as follows: “Provided, that no such permit shall be granted unless in the judgment of the said Judges of the Appeal Tax Court, or a majority of them, the size, general character and appearance of the building or buildings to be erected, will conform to the general character of the buildings previously erected in the same locality, and will not in any way tend to depreciate the value of surrounding improved or unimproved property.” Treating this proviso as not being contained in the provisions of the ordinances relating to the granting of permits that have been recited, and assuming that the allegations of the petition for mandamus, in respect to the tenancy and possession of the appellant, Bosstock, of the lot of ground mentioned in the petition as the site of the proposed building, to have been sufficiently proved, it having been admitted on the face of the pleadings that all the requisites and formalities prescribed by the ordinance to accompany an application for a permit to build had been complied with, it became the duty by the very terms of the ordinance of the Appeal Tax Court to issue the permit upon the application of the appellants as made.

What remained to be done therefore by the appellees would, upon the hypothesis stated, have become a plain duty and a mere ministerial act which they could not arbitrarily refuse to perform and upon such refusal mandamus would lie to compel the performance of the duty. Brayshaw v. Ridout, 79 Md. 454 . ⁴¹² Taking up now for consideration the defense set up by the appellees based upon the discretion with which they claim to be invested perforce the proviso which has been recited, the fundamental question to be determined is whether this proviso is a valid part of the ordinance under which the appellees were called upon to act, and as to this, the first inquiry is, was the corporation, the Mayor and City Council of Baltimore, empowered by any provision of its charter to prescribe the conditions contained in the proviso in the connection in which it occurs. As a guide to.this inquiry we may very aptly quote from what was said by Mr. Dillon in his admirable work on Municipal Corporations in relation to the construction of the powers of such corporations : “The fundamental and universal rule which is as reasonable as it is necessary is, that while the construction is to be just, seeking first of all for the legislative intent in order to give it fair effect, yet any ambiguity or doubt as to the extent of the power is to be determined in favor of the State or general public and-against the State’s grantee.” Then after saying that this is not so directly applicable to municipal as to private corporations he proceeds as follows : “But it is equally applicable to grants of power to municipal and public bodies which are out of the usual range, or which may result in public burdens or which in their exercise touch the right to liberty or property or as it may be compendiously expressed any common law right of the citiizen or inhabitant.” 1 Dillon on Mun. Corp., p. 148, sec. 91, (4th ed.) Again at p. 394, sec. 317 of the same work it is said “since all the powers of a corporation are derived from the law and_ its charter it is evident that no ordinance or bylaw of a corporation can enlarge, diminish or vary its powers.” The foregoing citations are made as a clear and terse statement of the rules and principles of law applicable to the case at bar and not because we think there is need that they should be fortified by citing authority.

Now undoubtedly the proviso in the ordinance here under consideration attempts to confer powers that affect the citizen in his right of property and his common law right. It cannot be pretended that the ⁴¹³ citizen has not the common law right to acquire title to a lot