Lipsitz v. Parr

• Decision Date: 15 February 1933
• Docket Number: 112.
• Parties: LIPSITZ v. PARR ET AL.
• Court: Maryland Court of Appeals

164 A. 743

164 Md. 222

LIPSITZ v. PARR ET AL.

No. 112.

Court of Appeals of Maryland

February 15, 1933

Appeal from Circuit Court of Baltimore City; Charles F. Stein Judge.

Suit by Morris Lipsitz, trading as the Northwestern Lumber Company against William A. Parr, Buildings Engineer of the Mayor and City Council of Baltimore City, and others. From the decree plaintiff appeals.

Affirmed.

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

Louis S. Ashman, of Baltimore, for appellant.

R. E. Lee Marshall, City Sol., and Ernest F. Fadum, Asst. City Sol., both of Baltimore, for appellees.

PARKE Judge.

Morris Lipsitz, trading as Northwestern Lumber Company, began on February 16, 1932, a proceeding in the circuit court of Baltimore city against William A. Parr, buildings engineer of the mayor and city council of Baltimore city and the named members of the board of zoning appeals of Baltimore city, to restrain these defendants and their agents from interfering with a permit issued on January 4, 1932, to the plaintiff to erect a building in which to manufacture ice at the northwest corner of Calhoun and Winchester streets, in Baltimore city.

Two days after the permit was given, the plaintiff leased the premises to a tenant, who is not a party to these proceedings, for a term of five years, with the privilege of renewal for a similar term. The lease was in writing, but was neither acknowledged nor recorded. The words of the permit unquestionably granted the plaintiff permission to erect an ice manufacturing building, and carried an indorsement that the use of the land and structure applied for was in conformity with the provisions of zoning ordinance approved March 30, 1931. However, the land upon which the building was so authorized to be built was in one of the zones of the city, designated as "Second Commercial Use Districts" in which an ice factory was prohibited. Ordinance No. 1247, par. 6, class 32; Acts of 1927, c. 705, pp. 1607-1614, article 66B, §§ 1-9 of 3 Bagby's Code. Accordingly, the plaintiff was duly notified by an official letter, under date of January 21, 1932, that the permit was revoked and annulled as being violative of law and as having been issued by the inadvertence and mistake of a clerk. The plaintiff had proceeded with the erection of the plant pursuant to the purporting permit issued on January 4th, and, for the purpose of protecting the existing construction from deterioration, and the public and property, a temporary permit was issued to the plaintiff authorizing him to resume the work of construction pending action by the board of zoning appeals. On further consideration, the temporary permit of January 23d was revoked on January 27, 1932, and the plaintiff was ordered to cease all work until the appeal before the board of zoning appeals had been decided.

Before this appeal was determined, the suit in equity for an injunction was begun, and, upon the filing of the bill of complaint, the chancellor passed an order requiring the defendants to show cause why an injunction should not issue as prayed, and directing that meanwhile and pending the final decree of the court the plaintiff should be permitted to proceed with the construction of the building then in course of erection pursuant to the permit in question, provided, however, that the order of the chancellor and whatever might be done by the plaintiff pursuant to its tenor should be without prejudice to the rights or powers of the defendants under any and all valid laws or ordinances equitably or legally applicable to the plaintiff in reference to the subject-matter of the litigation.

The defendants answered the bill of complaint and alleged that the permit of January 4, 1932, was invalid and had been issued by mistake and without authority; and, on May 7, 1932, filed a petition for an order enjoining the plaintiff from operating the premises as an ice plant and from manufacturing and selling ice therein in violation of the city ordinance with respect to zoning. The cause was heard before the chancellor, who gave the questions involved careful consideration, embodied his conclusions on the facts and the law in an able and thorough opinion, and decreed on September 29, 1932, a dismissal of the plaintiff's bill of complaint, and the defendants' petition of May 7, 1932, but amply protected the interests of the parties by preserving for the plaintiff his right to prosecute his appeal now pending before the board of zoning appeals and his privileges, if any there be, under a permit of October 7, 1930, to use the building for the manufacture of ice cream; and by reserving to the municipality whatever right it may have to proceed either against the plaintiff's tenant to enforce the provisions of the zoning ordinance or against the plaintiff for any use by him of the building in any manner and for any purpose not allowed by law.

The bill of complaint proceeds upon the grounds that the municipality is barred from denying the plaintiff's right to use the premises as an ice factory by laches and estoppel and by the asserted invalidity of the restriction prohibiting an ice factory within the district where plaintiff's property is situated.

Laches is an equitable defense. It is an inexcusable delay, without necessary reference to duration, in the assertion of a right. No basis is found for the application of that doctrine to the facts of this record. Hagerty v. Mann, 56 Md. 522, 525, 526; Kaliopulus v. Lumm, 155 Md. 30, 42, 141 A. 440; Sinclair v. Auxiliary Realty Co., 99 Md. 223, 234, 57 A. 664; Lawson v. Mullinix, 104 Md. 156, 170, 171, 64 A. 938; Boggs v. Dundalk Realty Co., 132 Md. 476, 481, 104 A. 45. Laches and estoppel possess elements in common, and difficulty is encountered in clearly stating the distinction, particularly as the courts have studiously avoided a general or inflexible definition of laches in order to be free to apply its principles to the particular circumstances of the instant case. Robertson v. Mowell, 66 Md. 530, 539, 8 A. 273; Wood on Limitations, §§ 60, 63.

Unless mounting to the statutory period of limitations whose application is not denied upon equitable considerations, mere delay is not sufficient to constitute laches, if the delay has not worked a disadvantage to another. Demuth v. Old Town Bank, 85 Md. 315, 326, 37 A. 266, 60 Am. St. Rep. 322; 4 Pom. Eq. Juris. (4th Ed.) §§ 1442, 1443; Wood on Limitations, §§ 60, 61.

There was no blameful delay by the municipality, and so the question of estoppel must be considered.

A municipality may be estopped by the act of its officers if done within the scope and in the course of their authority or employment, but estoppel does not arise should the act be in violation of law. Paragraph 31 of the ordinance forbade the officials of the municipality to grant the permit which the plaintiff asked and obtained; and paragraph 41 made it a misdemeanor for the plaintiff to use his premises as a factory to make ice as the invalid permit purported to empower.

If the provision of the ordinance be constitutional, it was therefore unlawful for the officers and agents of the municipality to grant the permit, and it would be unlawful for the licensee to do what the purporting permit apparently sanctioned. A permit thus issued without the official power to grant does not, under any principle of estoppel, prevent the permit from being unlawful nor from being denounced by the municipality because of its illegality. In the issuance of permits pursuant to the ordinance at bar, the municipality was not acting in any proprietary capacity nor in the exercise of its contractual powers, but in the discharge of a governmental function through its public officers of limited authority, and the doctrine of equitable estoppel cannot be here invoked to defeat the municipality in the enforcement of its ordinances because of an error or mistake committed by one of its officers or agents which has been relied on by the third party to his detriment. Every one dealing with the officers and agents of a municipality is charged with knowledge of the nature of their duties and the extent of their powers, and therefore such a person cannot be considered to have been deceived or misled by their acts when done without legal authority.

So even where a municipality has the power, but has done nothing, to ratify or sanction the unauthorized act of its officer or agent, it is not estopped by the unauthorized or wrongful act of its officer or agent in issuing a permit that is forbidden by the explicit terms of an ordinance. J. Burton Co. v. Chicago, 236 Ill. 383, 86 N.E. 93, 96, 15 Ann. Cas. 965; and see Bower on Estoppel by Misrepresentation, §§ 217, 218; Hibbard, Spencer, Bartlett & Co. v. Chicago, 173 Ill. 91, 50 N.E. 256, 258, 40 L. R. A. 621; New York, etc., R. Co. v. York, etc., Co., 215 Mass. 36, 102 N.E. 366, 368; Monson v. Tripp, 81 Me. 24, 16 A. 327, 10 Am. St. Rep. 235; Board of Com'rs of Ramsey County v. Nelson, 51 Minn. 79, 52 N.W. 991, 993, 38 Am. St. Rep. 492; Mayor of Nashville, Tenn., v. Ray, 19 Wall. 468, 22 L.Ed. 164; Fowle v. Alexandria, 3 Pet. 398, 409, 7 L.Ed. 719; Valentine v. Road Directors, 146 Md. 199, 206, 126 A. 147; Baltimore v. Eschbach, 18 Md. 276, 283; Baltimore v. Reynolds, 20 Md. 1, 10, 11, 83 Am. Dec. 535; Johnson v. Frisbie, 29 Md. 76, 83, 96 Am. Dec. 508; State v. Kirkley, 29 Md. 85, 110; Baltimore v. Musgrave, 48 Md. 272, 283, 30 Am. Rep. 458; Baltimore v. Keyser, 72 Md. 106, 108, 19 A. 706; Mealey v. Hagerstown, 92 Md. 741, 753, 48 A. 746; see Smith v. Standard Oil Co., 149 Md. 61, 70, 130 A. 181. Compare Hagerstown v. Hagerstown Rwy., 123 Md. 183, 192, 91 A. 170, 7 A. L. R. 1239, Ann. Cas. 1916B, 1267, in which the rule here applied is stated but...