Fulker v. Rider

• Decision Date: 25 January 1929
• Docket Number: 92.
• Parties: FULKER ET UX. v. RIDER ET AL.
• Court: Maryland Court of Appeals

144 A. 640

156 Md. 408

FULKER ET UX. v. RIDER ET AL.

No. 92.

Court of Appeals of Maryland

January 25, 1929

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Petition for writ of mandamus by Joseph F. Fulker and wife against Harrison Rider and others, constituting the County Commissioners of Baltimore County and another, to compel respondent to issue a building permit. From a judgment dismissing the petition, petitioners appeal. Affirmed.

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

Charles F. Harley, of Baltimore (Michael J. Manley, of Baltimore, and W. Gill Smith, of Towson, on the brief), for appellants.

Elmer J. Cook, of Towson, for appellees.

OFFUTT J.

In April, 1928, Joseph T. Fulker, for himself and his wife applied to Warner D. Heim, inspector of buildings for the Ninth election district of Baltimore county, for a permit to erect a two-story building with a gasoline filling station in the rear on their property which is located at the southwest corner of the York road and Regester avenue, in Baltimore county. Heim, without any hearing or other proceeding refused the permit, and so informed the board of county commissioners of Baltimore county, and that board, without "any hearing whatever," on May 28, 1928, also refused it. Thereupon (1) Fulker appealed from the order of the county commissioners refusing the permit to the circuit court for Baltimore county, and (2) he and Julia J. Fulker his wife, on June 20, 1928, filed in that court a petition in which they prayed that a writ of mandamus be issued directing and commanding the board of county commissioners of Baltimore county and Heim, the building inspector for the Ninth election district of Baltimore county, to issue to Joseph T. Fulker a permit for the erection of the two "story building with gas filling station in the rear," as described in the application and plans and specifications accompanying it. The defendants demurred to the petition, the demurrer was sustained, the petition dismissed, judgment entered for the defendants, and this appeal was taken from that judgment.

The judgment must be affirmed for two reasons: First, if, as appellants contend, chapter 300 of the Acts of 1908, is unconstitutional and void, there is no legislation on the subject at all, there is no such office as building inspector of the Ninth election district of Baltimore county, and the county commissioners of Baltimore county are neither charged with the duty of issuing such permits as that for which the appellants apply in this case, nor have they the power to do so. Second, if the statute is constitutional and valid, then it itself furnishes the appellants with a plain, simple, and adequate remedy by an appeal to the circuit court for Baltimore county, and mandamus will not lie. Respecting the first proposition, it is axiomatic that the powers and duties of such a body as the board of county commissioners of Baltimore county are essentially statutory, Chaney v Com'rs of Anne Arundel County, 119 Md. 386, 86 A. 1039, and that it can exercise no authority save such as is expressly conferred upon it by the General Assembly of Maryland or the Constitution of the state, or which may be requisite to the reasonable exercise of its express powers. Id. article 7, § 1, Const. of Md., provides that its duties shall be such as "now or may be hereafter...