Bostock v. Sams

• Decision Date: 19 June 1902
• Citation: 52 A. 665,95 Md. 400
• Parties: BOSTOCK et al. v. SAMS et al., Judges.
• Court: Maryland Court of Appeals

52 A. 665

95 Md. 400

BOSTOCK et al. v. SAMS et al., Judges.

Court of Appeals of Maryland

June 19, 1902

Appeal from court of common pleas; J. Upshur Dennis, Judge.

Mandamus by Frank C. Bostock and another against Conway W. Sams and others, judges of the appeal tax court of Baltimore city, to compel the issuance of a building permit. From an order refusing the writ, petitioners appeal. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, PEARCE SCHMUCKER, and JONES, JJ.

Wm. J O'Brien, Jr., and Gans & Haman, for appellants.

Wm Pinkney Whyte, for appellees.

JONES J.

This case originated in a petition for a mandamus filed in the court of common pleas of Baltimore city by the appellants against the appellees to compel the latter to issue to the former a permit to erect a building upon a lot situated at the northeast corner of Mt. Royal and Maryland avenues, in the city of Baltimore. The case will turn upon the powers and duties of the appellees, composing the appeal tax court,--a subdepartment of the municipal government of Baltimore city, under the provisions of its charter,--in respect to the issuing of a permit of the kind applied for. These powers and duties are defined in the following provisions of the ordinances of the city, now codified and appearing in the City Code, in article 50, as sections 24, 25, 27, and 28, and which read as follows:

"Sec. 24. It shall not be lawful for any person, without a permit from the appeal tax court, to erect within the limits of the city any building upon a new foundation, whether in connection with an existing building or not, or to pull down any old building or part of a building to the ground, and build upon the old foundation, or to put an additional story upon any building or part of a building by increasing the height of the walls; and any person or persons who may build within the city of Baltimore shall be required to take out a permit for each and every house he or they may propose to build.

"Sec. 25. All persons receiving permission for the erection of any special improvements from the city council shall, before commencing the erection of the same, obtain the endorsement of the appeal tax court on said permit."

"Sec. 27. Whenever application accompanied by the payment of the cost of the advertisement provided for in section 28 is made to the judges of the appeal tax court for a permit or permits to erect any new building or buildings on any street or avenue of the width of fifty feet or more, the person or persons making such application shall be required, before such permit or permits shall be granted, to file with the appeal tax court a plat accurately describing the piece or parcel of ground to be improved, giving the front, and depth thereof, its distance from the nearest established corner of a street, lane or alley, and the number of improvements (if more than one) proposed to be erected thereon; also an accurate description of the frontage, height, depth, material to be used in the proposed building or buildings and the general appearance and cost of same.

"Sec. 28. It shall be the duty of the judges of the appeal tax court to grant such permits on application, without charge, except as hereinbefore provided, and to keep a record of all permits issued: provided, that no such permit shall be granted unless in the judgment of the said judges of the appeal tax court, or a majority of them, the size, general character and appearance of the building or buildings to be erected, will conform to the general character of the buildings previously erected in the same locality, and will not in any way tend to depreciate the value of surrounding improved or unimproved property: and provided further, that before any such permit shall be granted, at least ten days' notice by advertisement inserted in some daily newspaper shall be given by the appeal tax court that application for such permit has been made. And before any permit shall be granted to erect any building or buildings within the limits of the city of Baltimore, the applicant shall first satisfactorily prove to the judges of the appeal tax court that provision has been made for such drainage as the topography of the ground requires."

The petition for mandamus filed by the appellants alleged that the appellant Frank C. Bostock had leased, for a valuable consideration, from a certain William P. Harvey, who was the owner thereof, the lot of ground which has been referred to, and was in possession thereof, with authority from the owner to erect thereon the building for the erection of which a permit was applied for, and that he had entered into an agreement with the appellant Edgar M. Noel to erect, for a consideration, a building on the said lot, and that for the purpose of executing this agreement the said Noel had duly applied to the appeal tax court for a permit to erect said building. The petition then sets out the provisions of the ordinances of the city regulating the application for and the granting of permits for the erection of buildings within the city, and shows upon its face that all of the requirements of the said provisions were complied with by the appellants in making application for the permit which they seek to have granted in this case. The petition then shows that the appellees, composing the appeal tax court, refused the application of the appellants for a permit to erect the building therein indicated, and passed an order to that effect, in which they assigned as reasons for their refusal that the plans and specifications for the proposed building "presented to the inspector of buildings, and examined by the appeal tax court," did not, in their opinion, "conform to the general character of the buildings in the said locality," and that the use of the building proposed to be erected "will be for the purposes of a 'zoo,' " among which purposes was "to snow wild animals, in reality conducting a continuous circus upon one of the most beautiful streets in the city of Baltimore." It also appeared from the petition that Mt. Royal avenue, the street upon which the building was proposed to be erected, was more than 50 feet in width. The appellees in their answer admit all the allegations of fact of the petition, except those contained in the first paragraph thereof, which were that the appellant Bostock had leased and was tenant in possession of the lot upon which the building for the erection of which the permit was applied for was to be erected, and had entered into an agreement with the appellant Noel to construct a building thereon. These allegations they refused to admit, and called for proof of the same. The defense made by the answer was, in substance and effect, that the appellees had a discretion as to the granting or refusing of the permit, and were justified in their refusal thereof because the building for which the permit was applied for "would not conform to the general character of the buildings previously erected in the same locality, and would tend materially to depreciate the value of the surrounding improved or unimproved property." The answer was demurred to, and the demurrer was overruled. The petitioners then joined issue upon that part of the answer which did not admit the allegations of the petition contained in the first paragraph thereof, and demurred to all other parts thereof, which demurrer being overruled, the petitioners joined issue thereon "as far as said answer in any way denies the averments of facts contained in the petition." The case was then tried before the court without a jury. Testimony was taken, and there was proof on the part of the appellants going to show that the appellant Bostock had, with the owner of the lot upon which the proposed building was to be erected, a contract, founded upon a valuable consideration, which gave him the right to erect a building upon said lot, and that said Bostock had possession of the lot for that purpose, if a permit could be obtained, and that he had entered into an agreement with the appellant Noel, for a consideration, to have a building erected thereon. At the conclusion of the testimony the petitioners offered a prayer to the effect that if the court should find from the evidence (1) "that on the 22d day of October, 1901, the petitioner Frank C. Bostock was, and now still is, the tenant in possession of the lot of ground mentioned in the petition, with authority from the owner thereof to erect thereon the building mentioned in said petition"; (2) "and that on said day the petitioner Edgar M. Noel, as agent and builder for the petitioner Frank C. Bostock, applied for the permit mentioned in said petition"; (3) "that then, under the pleading in this case, the verdict must be for the petitioners." This prayer was refused by the court, to which refusal the petitioners excepted. The court ordered that the writ of mandamus be refused, and the petition therefor be dismissed. From this order the petitioners have appealed.

It will be seen from the course of the pleading and the nature of the defense relied upon by the appellees that the most important and the substantial inquiry involved in the case before us is as to what lawful discretion is given to the appellees to withhold a permit, upon application made, by virtue of the proviso in the ordinance of the city regulating the issuing of permits, which is embodied in section 28 of the City Code and which reads as follows: "Provided, that no such permit shall be granted unless in the judgment of the said judges of the appeal tax court, or a majority of them, the size, general character and appearance of the building or buildings to be erected, will conform to the general character of the buildings previously erected...