Osborne v. Grauel

Stocicbridge, J., delivered the opinion of the Court: The record in the above entitled case presents as the foundation of the action an application for a building permit. The permit, under the ordinances of the Mayor and City Council of Baltimore-, required the approval of the Mayo-r, and a paper is presented evidencing the permit, bearing date May 14th, 1919, and which reads as follows: “Permission is hereby granted to Jos. S. Small to erect Public Garage, W. S. Prospect Av., 100 ft. S. of Oakdale Av.” This was approved by James H. Preston as Mayor of tbe City, and by him handed to the ap-pellant.

Across the face of this permit was written the word “Disapproved.” According to the evidence adduced in support of the application for a mandamus, this entry of disapproval was made after Mr. Preston ceased to he Mayor, and Mr. B-roening had succeeded him in that office. The appellant gives, as the reason for the disapproval and refusal to deliver the permit, a discrepancy in the* place intended to be filled in with the name of the owner, and which was actually filled in in the name of the builder; hut inasmuch as this paper bore the signature both o-f Mr. Grauel, the owner of the property, and Mr. Small, the contractor, that can hardly constitute an adequate reason for the failure to deliver the permit. ⁹⁰ There further appears what is called an application for a new building, and which application is for the erection of nineteen buildings, to be used in its entirety as a public .garage. This bears no mark of approval, nor any signature except that of O. H. Osborne, the Inspector of Buildings. Here is a discrepancy between the application for the permit .and the permission granted of a far more serious nature than the transposition of the two names.

The lot upon which this public garage was to be erected was 190 feet 8 inches by 25 feet, and according to the testimony, the purpose was not to erect it immediately upon Prospect Avenue, but upon the rear portion of a lot fronting on Prospect Avenue, and which portion so to be improved, it is testified, was accessible by means of an alley, the other improvements upon which were of not an especially desirable type in a resident section, as, for example, paint shops and plumbing shops. The evidence is to the effect that Mr. Broening as Mayor «declined to approve this application, in which act he was discharging one of his official functions as the head of the ■municipal corporation, and not acting in any personal capacity. He should, therefore, as Mayor, have been made a ■co-defendant with Mr. Osborne, whereas the application for the mandamus was against Mr. Osborne alone, as the Inspector of Buildings. The lot upon which it is proposed to erect this garage adjoined the then suburban development known as Roland Park, and by the Annexation Act now within the corporate .limits.

The reason assigned by Mayor Broening for his refusal to sanction the permit was, that “he didn’t think garages ought to be built in that community; that it was a very nice class of property out there and that these garages would ■depreciate the value of the property * * * and that the character of the proposed buildings did not conform to the •other improvements in the neighborhood.” ⁹¹ The appellee, in his argument and in his brief, speaks of the permit as issued, but not delivered; but this is a distinction which cannot be validly drawn. The mere manual signing by the Mayor of a municipal corporation is not an issuance of the paper so signed, but to constitute a completed issuance there must be delivery, as well as the manual signing. The theory of the appellee is that the refusal of Mayor Broening to sign and issue1 the desired permit was based solely on esthetic reasons, and that such reasons could not constitute a valid ground for his action. On the other hand, the theory of the city is that by his action, or inaction, the Mayor was exercising a police power, or acting under the Welfare Clause of the City Charter, and that this called for the exercise of a discretion, and that the Court would not override the action of the chief executive of the city, where he-had been invested with such discretionary power.

Eor good reasons courts have been extremely loath to attempt any precise definition of what constitutes the police power, and whatever the police power’ of the State may be, so far as Baltimore City is concerned, that power has been granted to the municipal corporation. This subject was fully’ discussed by Judge Pearce in Rossberg v. State, 111 Md. 394 , and upon this point he says: “Broader or more comprehensive police powers could not be conferred under any general grant of police power, for the purposes mentioned in Section 18, than those granted in that section, and when we consider the “Welfare Clause” of the charter, Section 31, greater1 emphasis could not be laid upon the implied powers of the city for the maintenance of the peace, good government, health and welfare of the city, than is. there laid.” The foregoing language was. cited with approval by Chief Justice Both in the case of Brown v. Stubbs, 128 Md. 129 , and is now to be regarded as