Brown v. Stubbs

• Decision Date: 10 February 1916
• Docket Number: 13.
• Citation: 97 A. 227,128 Md. 129
• Parties: BROWN v. STUBBS, Inspector of Buildings.
• Court: Maryland Court of Appeals

97 A. 227

128 Md. 129

BROWN v. STUBBS, Inspector of Buildings.

No. 13.

Court of Appeals of Maryland

February 10, 1916

Appeal from Superior Court of Baltimore City; John J. Dobler, Judge.

Petition for mandamus by Ambrose S. Brown against Clarence E. Stubbs Inspector of Buildings. From an order overruling demurrer to the answer and entering judgment for defendant, with costs plaintiff appeals. Order affirmed.

Argued before BOYD, C.J., and BURKE, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.

J.Leiper Winslow, of Baltimore, for appellant. E. J. Colgan, Jr., of Baltimore (S. S. Field, of Baltimore, on the brief), for appellee.

BOYD C.J.

This is an appeal from an order overruling a demurrer to an answer to a petition for a mandamus and entering a judgment for the defendant for costs. The petition alleges that the appellant is the owner of the properties known as Nos. 842 and 844 West North avenue, Baltimore city, and that he applied to the appellee, inspector of buildings for Baltimore city, for a permit to erect a moving picture theater upon said properties, in accordance with section 3 of paragraph 1 of an ordinance of the mayor and city council of Baltimore approved June 19, 1908, and known as No. 155, etc. That section is as follows:

"The inspector of buildings shall receive applications examine plans, and grant permits for the erection, construction, alteration, repairs and removal of buildings."

The inspector of buildings refused to issue a permit until the petitioner secured the assent of the mayor and city council of Baltimore as required by Ordinance No. 269, passed May 20, 1913. That ordinance provides that:

"No permit shall be issued for the construction of any new building or for the conversion of any existing building, or for the construction or conversion of any tent or other inclosure of any kind whatsoever, or for the erection or operation of any appliance or paraphernalia, whether inclosed or on open lot, to be used for the exhibiting of moving picture shows, until the said application for permit is first assented to by the mayor and city council of Baltimore, by ordinance, nor shall such ordinance be passed until public notice is first given in two daily newspapers of Baltimore city at least once a week for fifteen days prior to the introducing of said ordinance, which notice shall set forth the intention of introducing said ordinance, and which notice shall contain a sufficient description of the provisions of said ordinance for everybody interested to understand the scope and purpose of such measure. The cost of the advertisement of said notice to be borne by the applicant for said permit."

The petition alleges that Ordinance No. 269 was illegal, invalid, and of no force or effect in law, in that:

"1. The mayor and city council had no power or authority to pass said ordinance, and it is therefore ultra vires and void; (2) that at the time of the passage of same there was no statute of the General Assembly of Maryland in force authorizing the passage of said ordinance, and it has never since been ratified by an act of the General Assembly of Maryland; (3) even if there was such a statute, it would have been void and illegal, in that it would be unconstitutional as depriving a citizen of Baltimore of his property without due process of law; (4) said ordinance is discriminatory, oppressive, and unequal in its application, and therefore unconstitutional; (5) said ordinance is invalid and unreasonable, in that it commits to the mayor and city council unlimited discretion in granting or refusing said permits, and does not undertake to provide any general rules or regulations limiting the exercise of said discretion."

Before discussing those questions it may be well to refer to several other matters mentioned in the appellant's brief. It is said that from the pleadings it cannot be logically deduced that the appellant intends to erect a building, which must necessarily be used for moving picture exhibitions. Inasmuch as the petition alleges that the appellant applied "for a permit to erect a moving picture theater upon said property," and the refusal to grant that permit is the foundation for the proceeding, we must assume for the purposes of the case that such was his intention. It is also contended that the ordinance is invalid because the title is defective and in violation of the provision of the city charter that:

"Every ordinance enacted by the city shall embrace but one subject, which shall be described in its title," etc. Section 221 of charter.

It is said that:

"The title gives no inkling to a lot owner that he cannot erect a tent or install the machine on a vacant lot, without such assent as required in the body of the ordinance."

It is sufficient to say that the appellant's application was not for a permit to erect a tent or install the machine on a vacant lot, and hence they are in no way involved in this case. The title is as explicit as could be desired or required in reference to the construction of new buildings, or the conversion of existing buildings, which are to be used for the exhibition of moving picture shows, and hence no one could be misled by the prior reference to the section proposed to be repealed and reordained, as suggested by the appellant.

1. The first and second reasons assigned in the petition for the alleged invalidity of the ordinance can be considered together. Assuming that a valid statute could be passed containing such provisions as the ordinance does (which we will consider later), there can be no doubt about the power of the mayor and city council to pass the order. Section 6, subsec. 18, of the charter gave it full power and authority:

"To pass ordinances for preserving order, and securing property and persons from violence, danger and destruction, protecting the public and city property, rights and privileges from waste or encroachment, and for promoting the great interest and insuring the good government of the city. To have and exercise within the limits of the city of Baltimore all the power commonly known as the police power to the same extent as the state has or could exercise said power within said limits," etc.

By subsection 14 of section 6 it has the power:

"To license, tax and regulate all businesses, trades, avocations, or professions."

And by subsection 29:

"To provide for licensing, regulating and restraining theatrical or other public amusements within the city of Baltimore."

Then subsection 31 of section 6 provides:

"The foregoing or other enumeration of powers in this article shall not be held to limit the power of the mayor and city council of Baltimore, in addition thereto to pass all ordinances not inconsistent with the provisions of this article or the laws of the state as may be proper in executing any of the powers, either express or implied, enumerated in this section and elsewhere in this article, as well as such ordinances as it may deem expedient in maintaining the peace, good government, health and welfare of the city of Baltimore," etc.

In Rossberg v. State, 111 Md. 394, 74 A. 581, 134 Am. St. Rep. 626, Judge Pearce, in speaking for the court, said:

"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) greater 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."

Again he said:

"The powers thus vested in the city are broad and sweeping, and are expressed in terms which indicate a liberal view of the need of broad powers for effective local government of a great city."

As these provisions are so clear and broad, we deem it unnecessary to further discuss this branch of the case. There would seem to be no doubt that, if the Legislature can lawfully adopt such regulations as are contained in the ordinance, the mayor and city council can do so under the powers conferred on it.

2. We will therefore determine whether it was within the power of the Legislature to grant such powers. The Legislature by chapter 693 of the Acts of 1910 created a "board of examining moving picture machine operators," and required such operators to take out a license and submit to an examination. In the preamble the danger to life and property from explosions caused by the carelessness and incompetency of moving picture machine operators was referred to. This court sustained that act in State v. Loden, 117 Md. 373, 83 A. 564, 40 L. R. A. (N. S.) 193, Ann. Cas. 1913E, 1300. Judge Pattison, in delivering the opinion of the court, said:

"The danger to life and property incident to the use of moving picture machines when operated by incompetent persons is known to all. The films used in connection with the machine are highly explosive and dangerous in their character, and, if not properly managed and cared for, are liable to explode. In large cities, compactly built, like Baltimore, there exists possibilities of immense loss of property by fire as was shown by the great fire of 1904, which swept the business section of the city and destroyed property worth many millions of dollars. Moreover, in large cities moving picture machines are usually operated in large, crowded rooms or halls filled with a constantly changing assemblage,

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