Storck v. Mayor of Baltimore

Fowler, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court of Baltimore City. Edward J. Storck, the owner of a lot of ground on Patuxent street in that city, desiring to improve it by building thereon a number of dwelling houses, made application in due form of law for a building permit, which was granted. Subsequently he applied to the Board of Estimates for a permit to put front steps to these houses extending out on the sidewalk beyond the building line.

It appears from the minutes of the proceedings of the board that it was willing to grant this permit for the erection of steps, but it declined to do so solely on the ground that it was prohibited by the Act of 1904, ⁴⁷⁸ ch. 616. Whereupon Mr. Storck filed the bill in this case asking for an injunction to restrain the city from obstructing or in any way interfering with the construction and erection by him or his employees of the steps in question. It was alleged in the bill, among other things that the Board of Estimates have the right to grant him the privilege of building the said steps in accordance with his application therefor, notwithstanding the Act of 1904, ch. 616; that said Act does not repeal the Act of 1900, ch. 109, under which said board has such authority; that said Act of 1904, ch. 616, is invalid, because its meaning cannot be ascertained under any of the rules of construction known to the law, and that it is, therefore, too uncertain to be enforced; that said Act of 1904, ch. 616, if it can be construed in the way claimed by the city authorities, is unconstitutional and void, as it deprives the plaintiff of his property without due process of law, and denies to him the equal protection of the laws. The defendants demurred to the whole bill, the Court below passed a decree sustaining this demurrer and dismissing the bill.

From this decree the plaintiff has appealed, and the only question involved is whether the Act of 1904, ch. 616, is a valid exercise of legislative power. On the part of the plaintiff it is contended this Act is invalid for two reasons, first, its meaning is too uncertain to be enforced; and second, if sufficiently certain it deprives the plaintiff and all bthers in like situation, of the equal protection of the laws. The contention of the defendants is just the reverse, namely that the Act in question is free from any fatal uncertainty and that it in no way deprives the appellant of his constitutional rights. In addition to this contention, however, the defendant urges that even if it should be held that a portion of the Act is void, the remainder thereof is valid, and the plaintiff, by its terms, is not entitled to the privilege asked for.

It may be said at the outset that. it is conceded that the plaintiff, but for the Act of 1904, ch. 616, had done everything required to' entitle him to the permit to erect steps as set forth in his application, and hence we may at once proceed to the ⁴⁷⁹ consideration of the Act which has given rise to this controversy. It is entitled “An Act to prevent the obstruction of the sidewalks of the streets * * * of Baltimore City” and for that purpose it repeals and re-enacts sections 6 and 8 of the City Charter. As section one alone relates to steps we will direct our attention to that section without referring to the other parts of the Act. Upon an examination of section one of the Act we find that it re-enacts section 6 of the City Charter in totidem verbis down to the sentence beginning ’'‘To regulate the limits” as found in the fourth line from the end of the old section.

The amended section then reads: “To regulate (subject to the restrictions hereinafter set forth) the limits within which it shall be lawful to erect any steps, porticos, bay windows, show windows, signs, columns, piers or other projections or structural ornaments of any character for the houses fronting on any of the streets, lanes, &c., of said city, but no such regulation shall permit any such erection at any point between the grade of the sidewalk of any such street, &c., and a point ten feet above such grade; provided, that outside which such erections or any of them shall lawfully exist between the grade of the sidewalk and a point ten feet above such grade at the time of the passage of this Act, other such erections of the same kind as those hereinbefore specified, may be permitted, under such regulations as the said Mayor and City Council, &c., may from time to time prescribe. The burned district within the meaning of this section shall be the territory comprised within the following metes and bounds.” Then follows the description of the “Burned District.” “Block” is then defined to mean, as used in this section, “the portion of one side of any street, See., included between the nearest two cross streets.” And finally the section ends with this proviso “provided that no such erections between the grade of the sidewalk and a point ten feet above thereof shall in any case be permitted, unless there shall lawfully exist at the time of the passage of this Act, on the same side of such street, Sec., such an erection upon or on the said block, at a point within two hundred feet of that at which it is proposed to make another such erection.” ⁴⁸⁰ It will thus be seen that the part of section I of the Act under consideration, namely, that portion of the section which relates to steps and certain other erections particularly referred to, confers upon the city the power to regulate the limits within which it shall be lawful to erect steps for houses fronting on any of its streets. Immediately following this general and sweeping power the city is absolutely prohibited from granting permits for any such erections, including steps, at any point betw.een the grade of the sidewalk and a point ten feet above such grade. Of course this prohibition, necessarily includes steps—and if there were nothing else, it would be clear that the Act prohibits the erection in the city of Baltimore of any more steps outside the building line for they, must of necessity; rest on the sidewalk and therefore be below the ten-foot point.

But following the language just referred to we are confronted with the first proviso; that “outside which,” steps, bay windows, &c., may lawfully exist between the grade of the widewalk and the ten-foot point, at the time the Act was passed, other such erections including steps may be permitted under regulations prescribed by the city. • In the first place it may be conceded that if this proviso had been enacted as suggested by the learned counsel for the city no difficulty, so far as this proviso is concerned, could have existed, for his contention is that the object of the Legislature was to prohibit absolutely, the erection of steps, &c., beyond the building line anywhere within the “Burned District” which is particularly described in the Act by metes and bounds, and to allow such erections outside of that District under such regulations as the city should prescribe. If we could adopt this view the proviso would then read; provided that outside of the “burned district” where any such erections shall lawfully at the time of the passage of this Act, other such erections may be permitted under regulations, &c. There could be, we think, no valid objection to this proviso if it had been enacted in this revised form. And while we have no doubt this was the form, substantially, in which the Act was drawn by its learned author and submitted to the Legislature, yet we ⁴⁸¹ must be guided solely by the language found in the Act, and from it, if possible, discover the intention- of the lawmaking power.

Before proceeding further, perhaps we should say we cannot agree with the contention of the plaintiff that under this Act the cify has power to regulate only the limits of the sidewalks within which steps may be erected. In our opinion when this language is used in sec. I of Act 1904, viz: “To regulate (subject to the restrictions hereinafter set forth) the limits within which it shall be lawful to erect any steps,” &c., the Legislature referred to the limits of the city and not to the limits of the sidewalk. But that question is not material now in the view we have been forced to adopt.

What then is the meaning of the words “outside which” as used in the section under consideration? No attempt was made by counsel to define these words themselves, but it is contended, as we have seen, that they should be understood to mean “outside the burned district.” But there is no justification for this interpolation. The “Burned District” had not been mentioned in the previous part of the Act. So far as the Act itself is concerned it might with equal propriety be suggested that the words “South Baltimore,” or “Old Town” ought to be inserted after the words “outside which.” It is true the section contains a definition of “Burned District” following the proviso—and so also the same section embraces a definition of the word “Block.” If the mere fact of being defined justifies the use of the words “Burned District”—the word “Block” is equally entitled to consideration.

But it is apparent this addition to the text of the Act would “make confusion worse confounded.” If that portion of the section of the Act immediately preceding this proviso had in terms applied to a defined and limited area of the city, then it would have to be conceded that the words “outside which” would necessarily have applied to such area, but, as we have seen there is no such limitation; and it cannot be said, we think, that it is the duty of this Court to supply in this case what the Legislature has omitted. There are, we have often said, cases in which the Court will, perhaps, add to or take away ⁴⁸² certain words from a statute in order to effectuate the clear intention of the Legislature. Thus in the case of Waters v. Laurel, 93 Md. 221 , cited by the defendant, the words “Town of Laurel” omitted in the first section were supplied by the Court. But that was a very different case from this.

The title of the Act is: “An Act to authorize and empower the Mayor and City Council of Laurel to borrow money, &c.,” and the first section provided that for the purpose of supplying water to the town the “Mayor and City Council” were authorized to borrow money. The question was, which Mayor and City Council? The plain answer was, the Mayor and City Council mentioned in the title and in every other section of the Act,.except in the first. Indeed it is difficult to understand how any serious objection can be based upon such an omission as was relied on in the case just cited, for the section alleged to have been incomplete was quite as intelligible before as after the desired interpolation was made.

But looking to the title of the Act of 1904, ch. 616, now before us we fail to find in its title any reference whatever to the “Burned District.” N.or indeed are those words used anywhere in the affirmative provisions of the Act, but only where what is known as the Burned District is described or defined. In addition to