Smith v. Standard Oil Co. of N.J.

• Decision Date: 06 August 1925
• Docket Number: 67.
• Parties: SMITH ET AL. v. STANDARD OIL CO. OF NEW JERSEY ET AL.
• Court: Maryland Court of Appeals

130 A. 181

149 Md. 61

SMITH ET AL. v. STANDARD OIL CO. OF NEW JERSEY ET AL.

No. 67.

Court of Appeals of Maryland

August 6, 1925

Appeal from Circuit Court of Baltimore City; George A. Solter Judge.

"To be officially reported."

Bill by Mary H. Smith and others against the Standard Oil Company of New Jersey and others. From a decree of dismissal, plaintiffs appeal. Affirmed in part, and reversed in part, and cause remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and WALSH, JJ.

William L. Marbury, Sr., of Baltimore (Marbury, Gosnell & Williams and Fendall Marbury, all of Baltimore, on the brief), for appellants.

Wirt A Duvall, Jr., Deputy City Sol., and Edward F. Johnson, both of Baltimore (Philip B. Perlman, City Sol., and Johnson & Adams all of Baltimore, on the brief), for appellees.

ADKINS J.

The appellants were plaintiffs in a bill for injunction to restrain the Standard Oil Company of New Jersey from building or using an automobile storage station and tank for the storage of oil or gasoline or sale thereof on the premises on the southeast corner of Cathedral and Eager streets in the city of Baltimore, and to have the permits therefor declared null and void; to have Ordinance No. 611 1/2 of Baltimore city, approved June 22, 1921, declared null and void; to restrain the inspector of buildings and the mayor of Baltimore city from approving any permit to be issued to erect, maintain, or use such stations. The appellees, who were defendants below, are the Standard Oil Company of New Jersey, the mayor of Baltimore, the members of the board of estimates of Baltimore city, and the inspector of buildings of said city. It is alleged in the bill of complaint, among other things, that:

"(3) The mayor and city council of Baltimore, acting in pursuance of the police power conferred upon them by the Legislature of Maryland, enacted an Ordinance No. 858, approved April 15, 1923, amendatory of paragraph 12 of section 47, Ordinance No. 155, approved June 19, 1908, dealing with the same subject, wherein it was and is provided that certain classes of buildings, buildings to be used for certain purposes such as livery stables, junk shops, paint factories, breweries distilleries, and various other classes of buildings, to be used for the carrying on of a business, injurious to the residents of any neighborhood in the city, and including garages and automobile stations in which gasoline is supplied to the users of automobiles and to their automobiles, should be 'limited as to location,' and it was and is provided, in paragraph 13 of said section, as amended by Ordinance No. 648, approved December 7, 1921, that 'no permit shall be given by the inspector of buildings for the erection of any such buildings; nor shall any building not already used for any of the purposes specified in the preceding paragraph be converted or used for any of the said purposes without the approval of the mayor, and, if such erection, conversion or use be approved by him, there shall be incorporated in the permit therefor such regulations regarding the location of said building as may be necessary, in the judgment of the mayor, to properly safeguard the interests of the public. No permit for such buildings or the conversion or use of same, shall be issued unless at least ten days notice of the application therefor shall be published not less than four times in at least two daily newspapers in Baltimore city, and every such application shall be conspicuously posted upon the property and the application, accompanied by a sum sufficient to pay the cost of such notice and posting.' "

That:

"(4) It was, and is, the duty of the mayor of Baltimore city to exercise the powers conferred upon him by the ordinance above set forth, as amended, on behalf and solely on behalf of the health, safety, morals, and welfare of the public, and not to exercise such powers in such a manner as to conflict or interfere with the powers of the police commissioner of the city of Baltimore, or in any manner to impede, obstruct, hinder, or interfere with said police commissioner or any of his agents."

That:

"(5) The mayor and city council of Baltimore, further acting in pursuance of the police power conferred upon them on June 22, 1921, enacted an Ordinance No. 611 1/2, a duly certified copy of which ordinance is herewith filed as 'Plaintiffs' Exhibit No. 3,' said ordinance being entitled: 'An ordinance to repeal and reordain with amendments, section 75 of article 11 of the Baltimore City Code of 1906, title "Police Regulations and Prevention of Fires," subtitle "Inflammable and Explosive Materials," by authorizing an increase in the size of storage tanks for gasoline.' Said ordinance reading as follows: 'Section 1. Be it ordained by the mayor and city council of Baltimore, that section 75 of article 11 of the Baltimore City Code of 1906, title "Police Regulations and Prevention of Fires," subtitle "Inflammable and Explosive Materials," be and the same is hereby repealed and reordained with amendments to read as follows.' "

By the ordinance--

"the inspector of buildings is authorized to grant a permit subject to the approval thereof by the board of estimates, to any person or persons firm or corporation applying, to construct and maintain an automobile storage station, in which naptha or gasoline may be stored by one of the following methods only:

(A) In an iron or steel tank of design and construction approved by the inspector of buildings, said tank to be buried underground at least two feet beneath the surface and the maximum amount stored therein shall not exceed one thousand (1,000) gallons, and more than one tank may be permitted upon the same premises."

There follows an alternative method, not important here, and a further section providing that any permit granted in pursuance of the provisions of the ordinance may be revoked at any time by the board of estimates upon giving 90 days' notice of such revocation to the holder of the permit. The concluding allegations of the bill are as follows:

"(8) The defendant, the Standard Oil Company, made its application on March 19, 1924, and said application was approved by the mayor, and the permit was thereupon granted by the defendant, Charles H. Osborne, the inspector of buildings, in pursuance thereof under and by virtue of Ordinance No. 858 hereinbefore referred to. On October 14 1924, the defendant the Standard Oil Company made a further application in accordance with Ordinance No. 611 1/2, hereinbefore set forth, to the defendant Charles H. Osborne, the inspector of buildings, for permission to install 4 1,000-gallon gasoline tanks with pumps upon the said premises, known as 925 Cathedral street, and to make certain other alterations and improvements thereon. This application was approved by the defendants Howard W. Jackson, mayor of Baltimore city, R. Walter Graham, Howard Bryant, Philip B. Perlman, and Bernard L. Crozier, constituting and acting as the board of estimates of Baltimore city, under the authority conferred upon them by the said Ordinance No. 611 1/2, and thereupon, on November 7, 1924, the said defendant Charles H. Osborne, the inspector of buildings, granted the permission requested in said application. Your orators aver and charge that this action on the part of the board of estimates in approving and on the part of the Building Inspector in granting, the permission so requested is totally illegal and void, in that Ordinance No. 611 1/2 was passed in violation of section 221 of the Charter of Baltimore City (revised edition) which provides that 'Every ordinance enacted by the city shall embrace but one subject, which shall be described in its title, * * * ' and this ordinance is therefore null and void in so far as it purports to repeal the limitation, provided by its predecessor upon the number of tanks permitted upon any one premises, since such repeal is not in any way indicated in its title.

(9) After both of the aforesaid permits were issued by the defendant, Charles H. Osborne, upon approval by the mayor and the board of estimates respectively, the defendant the Standard Oil Company promptly began and has continued the work of preparing the said premises known as

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