Mayor of Pocomoke City v. Standard Oil Co.

Offutt, J., delivered the opinion of the Court. Pocomoke City is an incorporated town located on the main highway which runs north from Cape Charles, Virginia, to Maryland, and there.becomes a part of the Mary ³⁷¹ land state road system. It is a busy thriving country town of some twenty-live hundred or three thousand inhabitants, located in Worcester County near the southern boundary of the Eastern Shore of Maryland, and is the center of much of the commercial and business life of that part of this state, as wrell as of that part of the Eastern Shore of Virginia lying immediately south of it. Its principal thoroughfare is Market Street, which is a link in the Maryland state road system, and over it passes much of the local traffic from both Maryland and Virginia, as wrell as through traffic between points in and south of Virginia and points in and north of Maryland.

It runs in a general direction from the southeast to northwest, and the greater part of the commercial, financial, and amusement interests of the town are located on that part of it which lies between Front Street and Second Street, two blocks south. Between Front and Second Streets is Clark Street and these three streets, Front, Clark, and Second, all intersect it, and on the two blocks between Front and Second there are nineteen store buildings, two theatres, two1 banks, an office building, and a miniature golf course. On the southwest corner of South and Market Streets there is a garage and filling station, known as Wessell’s Garage, on the northwest corner of Market and Front Streets there is another filling station known as the Atlantic station, on the northeast corner across the street from the Atlantic station is the Peninsula Produce Exchange, and adjacent to that on the east is the post office. One block north of Front Street Market Street ends at the Pocomoke River, and south of Second Street it is residential in character.

Traffic approaching the town from the south first passes Wessell’s Garage, and traffic from the north the Atlantic station. There are on Front Street, on either side of Market, “stop” signs warning vehicular traffic on Front Street to come to a stop before entering Market Street. Market Street between those two points is seventy-two' feet wide, of which forty-eight feet is taken up by the roadway and twenty-four feet by sidewalks twelve feet wide on either side. Automobiles are permitted to park on each side of the ³⁷² roadway at an angle of about forty-five degrees, and when that parking space is occupied there remains a clear space or lane for traffic something over twenty-four feet wide.

The town, theretofore known as Newtown, was incorporated by chapter 253 of the Acts of 1878 under the name of the “Commissioners of Pocomoke City,” and by that act a board of five commissioners was created and given power to pass such ordinances as might be required for the regulation and good government of the town and the inhabitants thereof. From time to time amendatory acts were adopted under which the name of the municipality was changed to the “Mayor and Council of Pocomoke City,” and the powers of its legislative branch more clearly defined. Assuming to act under the powers granted by certain acts of the Legislature, to which more particular reference is made below, the Mayor and Council on June 7th, 1915, passed an ordinance known as “Ordinance No. 8, Series C,” “regulating building operations” within the corporate limits of Pocomoke City, which provided in part that after its passage no building or other structure should be erected within those limits without a permit from the town clerk, to be issued on the order of the Mayor and Council; that such permits should be granted only upon the written application of the owner of the proposed structure1, in which was stated the location and construction details of the structure to be built, and the use to be made of it -when completed; and that, if the Mayor and Council upon such application should believe “the building or structure to be, in all respects a proper one to be erected at the location named,” they should order a permit issued for its erection. After the passage of that ordinance, there was at least one application for the erection of a gasoline filling station on Market Street, between Front and Second, and after some consideration of the question the Mayor and Council, as an expression of a general municipal policy, on March 1st, 1929, adopted Ordinance No. 63, Series C, which provided that: ³⁷³ “Yo person, firm, corporation, or association of persons, shall erect, construct, operate or maintain any station for the sale of gasoline, oils, greases, etc., commonly known as a Tilling Station,’ on Market Street, in Pocomoke City, "Worcester County, Maryland, between the northwest side of Second Street and the southeast side of Front Street; and that no permit for the erection, construction, operation, or maintenance of the same shall be issued by the said Mayor and Council. * * * “That any such station for the sale of gasoline, oils and greases, commonly known as Tilling Station,’ erected, constructed, operated or maintained within the aforesaid limits shall be and constitute a public nuisance; and upon the order of the said Mayor and Council, may be abated and removed by the Chief of Police of Pocomoke City.” Following the passage of that ordinance, the Standard Oil Company of Yew Jersey appeared at a regular meeting of the Council, and presented an application for a permit to erect a filling station at the southeast corner of Front and Market Streets, but, while it was given a hearing, it was not permitted to file the application.

Thereafter, on September 2nd, 1929, it did file its written application for the permit with the Mayor and Council, who after a hearing refused it, and on March 18th, 1930, the appellant filed in the Circuit Court for Worcester County a petition for a writ of mandamus, in which, after stating in substance the facts to which we have referred, it prayed that a writ of mandamus be issued directed to the Mayor and Council of Pocomoke City, commanding them to issue to the applicant a permit for the erection of the filling station. The defendants answered, the case was heard on March 24th, 1931, by the court without the intervention of a jury, upon petition, answer, replication, and testimony, and on October 15th, 1931, the court ordered the writ of mandamus to issue, and from that order the Mayor and Council of Pocomoke City appealed to this court. ³⁷⁴ In the course of the trial the facts stated above appeared without contradiction and may be taken as established, and it also appeared without contradiction that the petitioner held the lot, described in the application, under a conditional contract of sale with Lillie B. King and John Watson, Jr., Esq., substituted trustee, who intervened as co-petitioners, which will become void unless the permit is issued, and there was evidence that a greater volume of traffic passes Wessell’s Garage than over that part of Market Street between Eront and Second Streets. The first and most important question presented for the consideration of this court is whether Ordinance No. 63, Series C, is a valid exercise of the power delegated to the appellant by the several acts of the General Assembly of Maryland referred to above, for, if it is, it is a complete answer to the appellee’s petition, and the right of the municipality to refuse the permit under the provisions of Ordinance No. 8, Series 0, need not be considered. The effect of the ordinance was to impose certain use restrictions on all property bounded by Market Street between Eront and Second Streets.

The prohibited use was not such as to create a nuisance per se (Smith v. Standard Oil Co., 149 Md. 70 , 130 A. 181 ) ; therefore its prohibition can only be justified on the ground that it is a legitimate exercise of the police power of the State. The nature and extent of that power is not susceptible of precise definition, nor reducible to any exact or final formula, but must rather be gathered from its application to the varying facts of actual cases as they arise. To define it or to prescribe its extent would be to instantly reduce the doctrine to the unyielding and permanent rigidity of a statute or a constitutional mandate, and so to destroy its usefulness as an instrument for the interpretation of. organic and statutory laws, so as to protect the whole people from evils and dangers which would follow the strict and literal application of such law to actual facts under existing conditions. It rests in the end upon the maxim that the safety of the people is the highest law, and ³⁷⁵ upon the principle that self-preservation is the first law of nature.

It has, in recent years, especially in its relation to various phases of zoning legislation, been the subject of careful, critical, and extensive examination in this court, and, in spite of some confusion, and some apparent conflict, the result has been to establish certain general principles, definite as to their elements, but flexible as to their application, which serve with reasonable certainty to guide the courts in applying the doctrine to concrete cases. The difficulty in its application lies not so much in its nature as in its limitations. It may be regarded as settled that the power can only be invoked to protect the health, comfort, morals, welfare, or safety of the public (Goldman v. Crowther, 147 Md. 293 , 128 A. 50 ; and cases cited therein), but doubt arises as to how far, for even such a purpose, it can prevail against plain and positive constitutional mandates. As stated in Eubank v. City of Richmond, 226 U. S. 142 , 33 S. Ct. 76, 77 , 57 L. Ed. 156 : “Necessarily it has its limits and must stop when it encounters the prohibitions of the Constitution,” but that rule loses much of its force when considered in connection with the construction, placed on it in the very paragraph quoted ,that: “A clash will not, however, be lightly inferred.

Governmental power must be flexible and adaptive. Exigencies arise, or even conditions less peremptory, which may call for or suggest legislation, and it may be a struggle in judgment to decide whether it must yield to the higher considerations expressed and determined by the provisions of the Constitution.” In the course of that struggle the courts have, in applying the doctrine in aid of legislation or governmental acts, where-ever possible, avoided any construction which would involve a direct clash between the power and constitutional prohibitions, and, in aid of that intent, have frequently resorted to the expedient of measuring the nature and extent of constitutional rights and privileges, when considered in connection with the precise object in respect to which they are asserted, rather than the extent of the police power. ³⁷⁶ So that, while the police power cannot be invoked to take private property without just compensation first paid or tendered to the owner thereof, in a case where private property is subjected to restrictions which prevent complete freedom in the use of it by the owner, and perhaps lessen the value it would have if not subject to such restrictions, the question may and frequently does arise, Is the property right protected by the Constitution anything more than a right to hold and use the property subject to restrictions in favor of the public which its location and character render essentia] to! the adequate protection of the public welfare ? The natural, logical and almost inevitable answer to that question is that there is no such thing as absolute ownership of property in the sense that it is held free from any possible restrictions of any kind, for, as property owes its value to the protection of the State, it is held subject to the right of the State to impose such restrictions upon its use as may be necessary to enable it to afford that protection. It has upon that principle been consistently held that urban property may, under the police power, be lawfully subjected to restrictions which would not be tolerated with respect to rural property, but in every case the test by which the applicability of the doctrine has been determined is whether the restriction is reasonably necessary for the protection of the public welfare, health, safety, comfort, or morals.

If it is not, the doctrine has no application; if it has, it will be applied unless it encounters some plain, positive, constitutional prohibition, to which it must yield as the supreme law of the land. Primarily the power belongs to the State and is ordinarily exercised by its legislative department, but the right to exercise it may lawfully be delegated to some subordinate agency of the State, such as a municipal corporation (Tighe v. Osborne, 149 Md. 359 , 131 A. 801 ), and such an agency may delegate to others the purely administrative duties incident to it (Id.), or may itself directly exercise the entire power. Where such an agency acts directly, the only limitation upon its right to' exercise the power is that it must act impartially, that any interference by it with the unrestricted use of pri ³⁷⁷ vate property must be reasonably necessary to- the- public welfare-, and consistent with the prohibitions- of the Constitution. Where the power is exercised directly by the agency -or delegate, the validity of acts done under its authority is determined by whether its acts in a particular case are upon the facts of such case reasonably necessary to the protection of the- public welfare, but, when any part of it is further delegated by the municipality to subordinate officials, the validity of their acts under it may depend upon whether the grant or delegation toi such officials vested them with a complete and uncontrolled discretion, or whether it vested them with mere ministerial and administrative functions, to- be exercised in obedience to and in conformity with definite rules, guides and standards.

In the former case-, the right to use the power in support of an act pretended to be- done under its authority is denied, not because the act is not reasonably necessary to the public welfare, but because the delegation of power is too broad and indefinite, while in the second case ordinarily it is permitted, and the sole inquiry is whether acts done under it are reasonably necessary to the public welfare. The case of Baltimore v. Radecke, 49 Md. 217 , illustrates the application of those principles in the one instance, and Easton v. Covey, 74 Md. 262 , 22 A. 266 , in the other. The Badecke case involved the validity of a city ordinance, which provided that no person should install a steam engine in Baltimore City without first obtaining a permit therefor from the Mayor and City Cotoncil, and which further provided that any such permit might be revoked and the person installing the- same required to remove it upon six months’ notice from the mayor. In construing that ordinance this court said: “But the Legislature- has granted ample power of legislation upon the subject of the erection and use of steam engines within the city limits, to the Mayor and City Council of Baltimore, independent of the power ‘to prevent and remove nuisances.’ They are clothed with the power to pass ordinances ‘for the prevention and extinguishment of fires,’ for ‘securing persons and property from danger or destruc ³⁷⁸ tion, and for promoting the great interests and insuring the good government of the city,’ and ‘to pass all ordinances necessary to give effect and operation to all the powers vested in'the corporation of the city.’ It has been well said in reference to such general grants of power that, as to the degree of necessity for municipal legislation on 'the subjects thus committed to their charge, the Mayor and City Council are the exclusive judges, while the selection of the means and manner (contributory to the end) of exercising the powers which they may deem requisite to the accomplishment of the objects of which they are made the guardians is committed to their sound discretion.

Harrison v. Baltimore, 1 Gill, 264 . This discretion is very broad, but it is not absolutely and in all cases beyond judicial control.” And, in holding the ordinance inoperative and void, it added: “It lays down no rules by which its impartial execution can be secured or partiality and oppression prevented. It is clear that giving and enforcing these notices may, and quite likely will, bring ruin- to the business of those against whom they are directed, while others from whom they are withheld may be actually benefited by what is thus done to their neighbors, and when we remember that this action or non-action may proceed from enmity or prejudice, frotm partizan zeal or animosity, from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment’s consideration. In fact an ordinance which clothes a single individual with such power, hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void.” In Easton v. Covey, supra, the Commissioners of Easton, acting under proper legislative authority, adopted an ordinance forbidding the erection of any building within the town without a permit from the commissioners.

Covey applied to the Commissioners for permission to erect a frame stable on a lot in Easton. His application was refused, and ³⁷⁹ he then sought by a mandamus proceeding to compel the Commissioners to issue the permit. The Commissioners in their answer asserted that the safety of property and the best interests of the town required them to refuse to issue the permit, and their action was sustained by this, court as a reasonable exercise of the police power delegated to them by the Legislature. In Farmers’ &