Tighe v. Osborne

Walsh, J., delivered the opinion of the Court. This appeal involves the question of the constitutionality of Ordinance Ho. 522 of the Mayor and City Council of Baltimore, which ordinance undertakes to regulate the issuance of “use” permits in Baltimore City for structures to be used for other than residential purposes. A case between the same parties was before this Court at the October Term (see Tighe v. Osborne, 149 Md. 349 ), ⁴⁵⁴ and we then decided that the ordinance involved in that case, which dealt with the same matter, was unconstitutional, and the case was remanded for further proceedings. Mrs. Tighe, the appellant in both cases, thereupon renewed her application for a building permit to erect a stable for thirty horses on Cokesbury Avenue in Baltimore, and upon her application being refused because of her failure to apply for and secure a “use” permit, she again filed a petition in the Baltimore City Court asking that a mandamus issue compelling the inspector of buildings for Baltimore City, the appellee, to give her a building permit.

The answer of the inspector set up as a defense the failure of Mrs. Tighe to comply with the provisions of Ordinance Ho. 522, regulating “use” permits, which was approved by the Mayor and City Council of Baltimore on December 14, 1925, just four days after the first case of Tighe v. Osborne, supra, was decided, and to this answer the petitioner demurred on the ground that the ordinance was unconstitutional and void. The lower court overruled the demurrer, and, upon Mrs. Tighe declining to plead further, judgment was rendered in favor of the defendant, the inspector of buildings, and from this judgment the petitioner has appealed. As the only difference between the present case and the first case between these parties is to be found in the two ordinances, we think the foregoing statement of the facts and circumstances sufficient, and we will accordingly proceed to a consideration of these ordinances. The ordinance in the first case was known as Ordinance Ho. 334, and its chief provisions will be found set out in the opinion in that case, Tighe. v. Osborne, supra.

It was held invalid because of the provisions attempting to give the zoning commissioner the power to refuse to grant a permit for a building to be used for any purpose other than a residence where, in his judgment, the use to which such building was to be put or its location “would, in any way, menace the public welfare.” In the' course of the opinion, ⁴⁵⁵ which was delivered bv Judge Offutt, the Court, after discussing generally the police power and calling' attention to the use of the phrase “general welfare” in many definitions of the power, said: “But the police power even as thus defined, vague and vast as it is, has its limitations, and it cannot justify any act which violates the prohibitions, express or implied, of the State or Federal Constitutions. Byrne v. Md. Realty Co., 129 Md. 210 ; Goldman v. Crowther, 147 Md. 293 . If this were not so and if the police power were superior to the constitution and if it extended to all objects which could be embraced within the meaning of the words ‘general welfare’ as defined by the lexicographers, the constitutions would be so much waste paper, because no right of the individual would be beyond its reach, and every property right and personal privilege and immunity of the citizen could be invaded at the will of the State whenever in its judgment the convenience, prosperity, or mental or physical comfort of the public required.” And further on it was said that: “Such a grant of power is in our opinion arbitrary and in conflict with both of the constitutional guaranties referred to above (article 23, Bill of Rights, and section 40 of article 4 of the Constitution of Maryland), because it commits to the arbitrary discretion of subordinate officials the power of depriving' the citizen of his property without compensation by taking from him the beneficial use thereof, regardless of whether such deprivation is required for the protection of the public order, security, health or morals.” It was accordingly decided in that case that Ordinance Ho. 334, under which the zoning commissioner could refuse to issue permits if “in his judgment, after investigation, the proposed buildings or structures, use or changes of use, would create hazards from fire or disease, or would in any way menace the public welfare, security, health or morals,” was invalid because the attempted delegation of the power to determine what structures or uses of them might affect the ⁴⁵⁶ “public welfare” was, standing by itself, too broad and indefinite. The ordinance in the present case contains no reference to “public welfare,” it omits entirely sub-section E of section 3, to which special objection was found by the Oourt in the previous case, and there are several other changes which will be adverted to later on in this opinion.

The part with which we are now concerned provides that the zoning commissioner can refuse to issue permits if “the proposed buildings or structures, use or changes of use, would create hazards from fire or disease, or would menace the public security, health or morals,” and the chief question to be determined on this appeal is whether this delegation of power by the Mayor and Oity Council of Baltimore to the zoning commissioner is valid. In Tighe v. Osborne, supra, after discussing generally the police power and the frequency with which the courts have had to deal with it, we said: “"While that mass of litigation has resulted in no single comprehensive definition of the power so far as it is applicable to cases like this one, which has been universally accepted, by the weight of authority it has been given a meaning narrower than that first stated, which we think fairly expressed by the following formula, which is that the police power is the power inherent in the state to prescribe within the limits of the federal and state constitutions reasonable regulations necessary to preserve the public order, health, safety or morals.” Applying this formula to the delegation of power contained in the ordinance now before us, we find that we are not required to pass upon any novel or doubtful application of the police power. In fact, the language of this part of the ordinance (aside from the words “hazards from fire or disease” which are really covered by the terms “public security” and “health”), is almost identical with the language of the formula, and it cannot now be doubted that this language correctly designates objects to which it is uni ⁴⁵⁷ versally conceded the police power applies. Boehm v. Baltimore, 61 Md. 259 ; Deems v. Baltimore, 80 Md. 164 ; State v. Broadbelt, 89 Md. 565 ; State v. Hyman, 98 Md. 596 ; Bostock v. Sams, 95 Md. 400 ; Brown v. Stubbs, 128 Md. 129 ; Byrne v. Md. Realty Co., 129 Md. 210 ; Goldman v. Crowther, 147 Md. 282 ; Tighe v. Osborne, supra, 12 C. J. 913, 916, 918.

And as Baltimore City, under its charter, has the right to exercise within the limits of the municipality the full police power of the State, no doubt can he entertained as to the authority of the city to pass an ordinance prohibiting the erection of buildings or any use of them which “would create hazards from fire or disease, or would menace the public security, health or morals.” Charter of Baltimore, art. 1, sec. 18; Tighe v. Osborne, supra ; Osborne v. Grauel, 136 Md. 88 ; Brown v. Stubbs, supra ; Rossburg v. State, 111 Md. 394 . The real question in the case then is not whether the City of Baltimore had the power to pass an ordinance protecting the public security, health or morals, but whether it had the right to delegate to the zoning commissioner the power to determine, in the manner prescribed by Ordinance Mo. 522, whether buildings or the proposed use of them would menace the public security, health or morals. If this was a question of first impression there might be considerable difficulty in determining it, but the past decisions of this Court, as well as the prevailing trend of authority elsewhere, seem to us to have settled the matter. An examination of the opinion in Tighe v. Osborne, supra, shows that the chief difficulty with the ordinance in that case was caused by the phrase “public welfare,” and all that was there decided was that the city could not delegate to any one the power to decide what was detrimental to the “public welfare.” In the present case there is no such delegation.

Here the authority of the zoning commissioner is limited to prohibiting structures or uses of them which would menace the public «^curity, health or morals. These things, as we have seen, ⁴⁵⁸ are proper objects of the police power, and many of the matters which can legitimately be said to affect any of them, as well as many matters which cannot be properly said to affect them, have been passed upon in previous decisions of this Oourt. These decisions are binding on the zoning commissioner, and in addition, the ordinance itself provides in section 3 that in passing on permits the commissioner shall give consideration to: “(a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application; (b) The number of persons residing, studying, working in or otherwise occupying buildings adjoining or in the vicinity of the projierty mentioned in tbe application; (c) The location, kind and size of surface and sub-surface structures in the vicinity of the property mentioned in the application, such as water mains, sewers and other utilities; (d) Traffic conditions in so far as they or any of them relate to hazards from fire or disease, or to the public security, health, or morals.” It is thus apparent that the ordinance does not vest an unlimited discretion in the zoning commissioner. He can not refuse a permit unless the building or its proposed use would menace the public security, health or morals; he is required to secure information about and give consideration to all the matters just enumerated in reaching a decision; and finally, he is bound by numerous decisions of this Oourt as to what does and what does not bear a: substantial relation to the public security, health or morals.

Among these decisions are Cochrane v. Preston, 108 Md. 220 , holding that a limitation on the height of buildings was valid; Byrne v. Md. Realty Co., supra, holding that ah act prohibiting the erection of dwelling houses in a certain part of Baltimore City unless of brick, semi-detached and at least ten feet apart, or if of frame, twenty feet apart, is invalid; Brown v. Stubbs, supra, holding that an ordinance requiring the ⁴⁵⁹ assent of the Mayor and City Council of Baltimore to the licensing" of building's for moving picture shows was valid; State v. Hyman, supra, holding that an act requiring, inter alia, a permit to manufacture coats, etc., in a tenement, and authorizing an inspector to revoke the permit at any time the health of the community required it, was valid; Goldman v. Crowther, supra, holding that certain provisions in the ordinance in that case attempting to regulate the use of property were void; Bostock v. Sams, supra, holding that a municipal ordinance providing that no building could be erected without securing a permit from the appeal tax court and that “no such permit shall be granted unless in the judgment of the judges of the appeal tax court or a majority of them, the size, general character and appearance of the building to be erected will conform to the general character of the building previously erected in the same locality and will not in any way tend to depreciate the value of the surrounding improved or unimproved property” was void; and Stubbs v. Scott, supra, in which it was held that the building inspector of Baltimore City could not, under the ordinances then existing, lawfully refuse to issue a building permit for a building to be erected in a residential neighborhood simply because the proposed structure was to be used for store purposes. The foregoing considerations make it abundantly evident that the ordinance before us contains many limitations on the powers of the zoning commissioner, and while he could disregard these limitations, it is not to be presumed that he will do so, nor is such a possibility a proper ground for declaring the ordinance invalid. State v. Hyman, supra. And should these limitations be disregarded the party injured thereby has a right of appeal to the board of zoning appeals, and thence to the Baltimore City Court, under section 2 of the ordinance.

And finally, there is ample authority to sustain even broader delegations of power to administrative boards or ⁴⁶⁰ subordinate officials. It was strongly intimated throughout the majority opinion in Tighe v. Osborne, supra, that the delegation of power contained in the ordinance involved in that case would have been valid