Mayor of Baltimore v. Scott

Constable, J., delivered the opinion of the Court. This ease is a sequel to that of Stubbs v. Scott, reported in 127 Md. 86 , wherein the appellant in that case, as Inspector of Buildings of Baltimore City was directed, by the writ of mandamus, to issue to the appellee a permit to erect a building as prayed for. The present appeal is from an order dismissing the bill of complaint of the appellant in the present case, praying for an injunction to restrain the appellees from using the building, erected under the aforesaid permit, in the manner they are now doing. It appears from the record that Walter Scott, one of the appellees, on the 18th day of June, 1915, filed his petition in the Superior Court of Baltimore City, praying that the writ of mandamus be directed to the Building Inspector of Baltimore City, requiring him to issue to the petitioner a permit for a building, to which we will refer more in detail later.

The petitioner recited therein that “in or about the month of February, 1915, desiring to erect and conduct a salesroom and service station for the sale of automobiles, and for the other purposes incident to the business of such establishments,” he applied to the defendant for a permit to erect a building suitable for that business, on the lot of ground situated on the east side of St. Paul street, between Mt. Royal avenue on the north, and Preston street on the south, having a frontage on said street of one hundred and ten feet ²³⁰ ' and a depth of one hundred and twenty-two feet and six inches bach to an alley running parallel with said St. Paul street and of a width of twenty feet. It was then recited that the said permit was not granted, and that “subsequently, your petitioner, being still anxious to secure a location on said lot for the sale of automobiles, abandoned the idea of establishing a service station at the place named, and purchased said lot of ground from the owners of the same and now owns said property,” and that he again made application to the defendant “for a permit to erect on said lot four stores for general business purposes, in accordance with the provisions of the plat and specifications herewith filed. * * * That your petitioner proposes to use one of said stores for the purpose of exposing for sale, and for selling automobiles. That the other stores he proposes to rent, or if it proves to be expedient so to do to sell them when they will be used for such purposes as stores so located may be profitably used.” This application was also-refused.

The Court, after hearing the testimony, in which the petitioner fully explained the purposes for which he intended to use the building under his first application as well as under his second application, directed the writ of mandamus to issue. This Court on appeal affirmed that decree. Chibe Judge Boyd, in delivering the opinion of the Court, on that appeal, said: “He (Stubbs) admitted that he was influenced by the facts that the plan of the building was susceptible of being used as a garage, and that the second applicant was the same person as the first applicant. He also admitted that he discredited Mr. S'cott’s good faith and his statement that he wanted it now for stores. ■* * * As we have seen, the petitioner in this case asked for a mandamus to compel the respondent to issue a permit To erect on said lot four stores for general business purposes, in accordance with the provisions of the plat and specifications herewith filed.’ The order of the lower Court directed That the writ of mandamus be forthwith issued in manner and form as prayed in said petition,’ and we can not admit, as we understood it to ²³¹ be suggested at the argument by counsel for appellant, that the petitioner can obtain a permit, through the aid of the Court, to erect a building for purposes set out in his petition, and then after he has erected the building make use of it for purposes such as he is not entitled to use it for without first obtaining the approval of the Mayor, particularly for such purposes as his petition shows he first asked a permit for, which was refused.

That would he a fraud on the Court which granted him the relief prayed for, and any attempt to perpetuate it could and should promptly he checked. We are not now called upon to1 pass on the validity of the ordinance, in so far as the particular provisions applicable to garages, etc., and numbered 5, are concerned, inasmuch as if the petitioner desired to attack the ordinance he could have done so, but, practically conceding it to be valid, abandoned further effort to get that permit and now seeks one for another avowed purpose. Hence we say he would not he permitted to erect a building, under a permit obtained by the help of the Court, for the purpose stated in the petition, and then use it for other purposes which were denied him. We do not mean to say he can not use a. store to exhibit automobiles for1 sale, as he says his intention is, but. be can not under the permit to he granted under this petition use it as a garage or service station, such as he first applied for.” All that remains for us to determine, upon this appeal, is whether or not there has been such a use of the building as to evidence a total disregard of the reasons expressed by this Court, as to why the permit should be granted.

And for this purpose, no better method can he employed than to examine the testimony of Scott, given during the1 trial of the petition for the mandamus, in reference as to what purpose he had intended to put. the building to when he first applied for the permit, and what he said his intention was on his application for the second permit, and to contrast that testimony with that in the present appeal. “Q. Did you ever apply to the authorities in Baltimore for a permit to erect and conduct a salesroom and service station ²³² for the sale of automobiles ou St. Paul street ? A. Yes, sir. Q. When was that? A. That was early in the spring, or late winter.

Q. What did you contemplate having there at that time? A. A service department. Q. What is a service station ? A. It is a- service department.

It is a place where you take care of cars you sell and keep them in running order, if anything gets out of order and needs attention, it is the place where you give it to ..them; they get attention there. Q. You have workmen for the purpose of repairing ? A. Yes, sir. Q. Some-blacksmithing is done?' A. No. Q. Is not that an incident to repairs that take place?

A. It could but we don’t run it that way; most of the parts we get from the factory. Q. You do have hammering and noises of that kind incident to making repairs ? A. Yes, sir. Q. This peculiarity of a service station is different from some other kind of station, is it not?

A. I don’t exactly get that. Q. A service station is where you repair automobiles? A. Yes; give them whatever attention is required. Q. As they come in, do you take them on storage?

A. No, sir. Q. That is not an incident of a service station? A. We do not, but probably some other places do. 'Q. Is not that one of the incidents of a service station also taking them on storage? A. That is optional with the man, of course, some do.” He then testified from the plans and specifications, filed as exhibits, that the building to be erected would be a two-story one, containing four stores on the lower floor, each with a frontage of twenty-seven and a half feet, and a depth of one hundred and twenty-two and a half feet; that the part of the building he intended.to occupy was the front portion of the second store from the south end of the building, the dimensions of which were twenty-séven and a half feet at the front to a depth of forty feet. “Q. You are going to use the first forty feet as a store room, that is an exhibition room?

A. Yes, sir. Q. What are you going to use the balance in the rear for ? A. In the rear, I am going to rent that for anything that I can use it for, anything at all, it is for rent. Q. You are going to keep ²³³ automobiles there for sale?

A. Yes, that is the idea. Q. As a matter of fact, that in reality is the kind of business you wish to conduct, the kind that the Zell and the Mardel people conduct?' A. Hot exactly, no, sir; I wish to conduct what I now conduct, sales agency, and to' take care of my own customers, my business has grown and I am not in a proper neighborhood for the business I want to get, I want to- get in an automobile district; I want to show my goods where the other large dealers in Baltimore show theirs; that is why I want to get down there; that is the main reason; a service station can be added afterwards; it makes no difference about a service station but I want to have the sales store there, I want to get there so that when people go from Zell’s, they will walk into my place, or from the Mardel place, which is only a square or less than a square further. Q. Your original plans, the ones which were not granted, call for a service station? A. Yes.

Q. What do you mean by service station ? A. I mean a place to take care of cars I sell, and keep them in running order. Q. Keep them in repair, is that right? A. Yes, sir.

Q. Back of that salesroom, will there be one or more rooms ? A. Back of the salesroom, on aecount of not getting the permit that I wanted, I would rent for some purpose, I would rent out, I would have to rent that out; what I am desirous of getting is a salesroom; in the rear of that, I can not have a service station, and I will rent it out for any purpose I can rent it out for; I would fix that up to suit some tenant I will have to get; that room will not be any good to me there.” Gould testimony have been made stronger than this to convince the Court that Scott had absolutely given up all idea of having a service station upon the premises, and that he had fully made up his mind to confine his efforts to' a salesroom alone without thought of doing repair work of any kind? It is not necessary to quibble over the technical meaning of the expressions, “public or private service stations,” or “public or private