Givner v. Cohen

• Decision Date: 27 July 1955
• Docket Number: No. 168,168
• Parties: Abraham GIVNER v. Paul A. COHEN, Building Inspections Engineer, and Mayor and City Council of Baltimore.
• Court: Maryland Court of Appeals

Page 23

208 Md. 23

116 A.2d 357

Abraham GIVNER v. Paul A. COHEN, Building Inspections Engineer, and Mayor and City Council of Baltimore.

No. 168.

Court of Appeals of Maryland.

July 27, 1955.

Modification Denied Oct. 4, 1955.

Eugene Hettleman, Baltimore, for appellant.

Francis J. Valle, Asst. City Sol., Baltimore (Thomas N. Biddison, Baltimore, City Sol., on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The appeal in this case is from a decree dismissing a bill for a declaratory judgment filed by the owner of several properties in Baltimore City against the Building Inspection Engineer and the City.

The plaintiff-appellant alleged that a subordinate of the Building Inspection Engineer notified the plaintiff that he (the subordinate), accompanied by representatives of the Health Department and of the Fire Department wished to inspect three buildings located close together and owned by the plaintiff, to ascertain whether there were any violations in them of regulations with which their respective departments were concerned, that he wished the plaintiff to accompany them on the inspection and to open any locked portions of any of these buildings, and threatened the plaintiff with arrest if he failed to accompany the inspectors on their survey and to open locked doors as requested. The answer admitted these allegations.

The plaintiff next set up his legal contentions and coupled with them factual allegations to the effect that the defendants' proposed action constituted a fishing expedition unsupported by any reason to believe that there was any violation. These allegations, both legal and factual, were denied, and the defendants also set up affirmative defenses more fully referred to below.

The plaintiff further set forth a claim that a bona fide dispute existed between him and the defendants and that he was entitled to a declaratory judgment as to what personnel, if any, might go upon his premises, the circumstances under which they might enter, and whether or not he could be required to accompany the inspectors and open any locked rooms. The prayers of the bill were for a declaratory judgment upon these matters, for an injunction pendente lite and for a permanent injunction against the defendants' entering upon the plaintiff's premises without the consent of the occupants thereof.

The plaintiff's other legal contentions as set out in his bill were, in brief, that the proposed or threatened inspections, without either permission or a search warrant and without any cause or reason for such inspections being shown, constituted a violation of his constitutional rights against 'unlawful' searches and seizures and also a trespass and a wrongful taking of his property.

The defendants' answer set up as authority for their action and proposed action provisions of Section 74 of the Charter and Public Local Laws of Baltimore City which were quoted and certain Sections of the Baltimore City Code, 1950 Edition, designated by Article and Section number, those contained in Article 40 being those Sections as amended by Ordinance No. 711, approved May 21, 1953. This ordinance was merely referred to by number and date. Section 74 provides that the Building Inspection Engineer (in his capacity as Zoning Commissioner) 'shall exercise such powers and perform such duties as have heretofore been performed by the Buildings Engineer pursuant to Ordinance No. 1247, approved March 30, 1931, or shall hereafter be conferred upon the Building Inspection Engineer by law or ordinance.' His past powers and duties under Ordinance No. 1247 are not stated. Section 74 further provides that the 'Bureau [of Building Inspection] shall issue such permits for, and exercise such supervision and inspection over, private construction and installations, the use of land and buildings, the alteration, relocation, repair, reconstruction and change of occupancy of buildings and the number of families housed in buildings in the City, and shall have such powers and duties to inspect, repair, condemn and remove private property in Baltimore City at the expense of the owner thereof as are now or may hereafter be conferred upon it by law or ordinance.'

For a statement of specific powers of inspection, the defendants rely upon Article 5, Section 120, par. 1202 of the Baltimore City Code (1950). It provides that the Building Inspection Engineer 'or his authorized representative, upon exhibiting the proper credentials or proof of identity, if necessary, shall have the right to enter any building, structure or premises at any time during daylight hours, or at such other time as may be necessary in an emergency resulting from or arising out of any cause that endangers or tends to endanger the public health or safety, for the purpose of performing his duties under this Code or enforcing the provisions of this Code.'

Finally, the defendants cite Sections 34, 41, 42 and 46 of Article 40 of the Baltimore City Code (1950) which is a codification of the Zoning Ordinance, as amended in 1953. How these sections aid the defendants is not apparent. Section 34, entitled 'Enforcement', deals with permits and authorizes the Zoning Commissioner (the Building Inspection Engineer), in addition to other remedies, in case any building is used in violation of the Zoning Ordinance, 'to institute any appropriate action or proceeding' to prevent the use or occupancy of the building in violation of the ordinance. It confers no right of inspection and exacts no consent to inspection as a condition for the grant of a permit. It evidently presupposes that evidence of a violation of the ordinance has already been found, for a violation of the ordinance must constitute the basis for the action or proceeding. Section 41 contemplates a request by the owner for an inspection, and hence his consent to it, in order that he may obtain a certificate of occupancy. Section 42 provides for the issuance of a notice requiring a correction to be made if, after inspection, a building is found not to be in conformity with the ordinance. This section confers no authority to make an inspection. Section 46, which is the general penalty section, does not make refusal to permit an inspection subject to any penalty.

On the plaintiff's motion the case was set for hearing on bill and answer. The decree dismissing the bill was passed in accordance with the following memorandum opinion of the Chancellor:

'Bill of Complaint Dismissed, there being nothing in the record to show any unreasonable search of property occupied by the complainant contrary to the provisions of the constitutional protection. The inspection complained of are necessary for the protection of the public health.'

The defendants have moved to dismiss the appeal on the ground that the questions sought to be presented to this Court do not clearly appear to have been decided by the trial court. We overrule that notion, but deem it appropriate to consider whether or not the case as it comes before us is such a case as calls for a declaratory judgment on any of the questions presented or sought to be presented here or in the trial court.

The effect of the plaintiff's election to set the case for hearing on bill and answer is fully stated in Miller on Equity Procedure, Sections 255, 256, and in numerous cases both before and since the publication of that work. Any averment of the bill which is denied by the answer cannot be considered. Among the comparatively recent cases supporting this rule, see County Trust Co. of Md. v. Stevenson, 170 Md. 550, 185 A. 435. A mere conclusion of law stated in the answer, of course, is not admitted. Aetna Indemnity Co. v. Baltimore, S. P. & C. Ry. Co., 112 Md. 389, 76 A. 251. Applying these rules to the pleadings, the plaintiff's allegation that there was no reason for believing that there is any violation must be disregarded, and it cannot be assumed that the proposed inspections were without such a reason.

We note at this point that questions as to what officials may inspect, whether rented premises should be opened by the landlord and the circumstances under which an inspection may be made are all subordinate to the question whether an inspection may be made without a search warrant; and unless that question is so presented as to call for decision, a decision on the subordinate points would be futile.

Pursuing our inquiry further as to the principal question, we find that the bill does not, on its face, challenge the construction or validity of any ordinance, for it does not so much as refer to any ordinance. Such ordinances as were at all properly drawn in question before the trial court came before that court by virtue of the defendants' answer and by the plaintiff's motion to set the case for hearing upon bill and answer. Courts of this State do not ordinarily take judicial notice of the ordinances of the City of Baltimore. Central Savings Bank v. Mayor, etc. of City of Baltimore, 71 Md. 515, 18 A. 809, 20 A. 283; Field v. Malster, 88 Md. 691, 41 A. 1087; Shanfelter v. City of Baltimore, 80 Md. 483, 31 A. 439, 27 L.R.A. 648. These ordinances must be proved as are other facts, except that printed volumes (such as the Code of 1950 and the Ordinances of 1953) which appear to have been published by proper authority may be accepted as evidence of the law. Code 1951, Article 35, Section 75. Following substantially what was done in the Shanfelter case, and taking into consideration the references in the answer and the hearing of the case on bill and answer, we shall give consideration to the ordinances referred to in the answer. Two other ordinances are quoted in the appellant's brief in this Court, but they are not so much as referred to in the pleadings and we regard them as not properly before us.

It is also to be observed that although in his complaint the appellant spoke of intended inspections by officials of the ...