Mayor and City Council of Baltimore v. Linthicum

• Decision Date: 20 February 1936
• Docket Number: No. 49.,49.
• Citation: 183 A. 531
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. LINTHICUM.
• Court: Maryland Court of Appeals

183 A. 531

MAYOR AND CITY COUNCIL OF BALTIMORE et al.

v. LINTHICUM.^*

No. 49.

Court of Appeals of Maryland.

Feb. 20, 1936.

Appeal from Baltimore City Court; Engene O'Dunne, Judge.

Proceeding by Sarah Louise Linthicum against the Mayor and City Council of Baltimore and others, constituting the Board of Zoning Appeals of Baltimore City. Judgment for plaintiff, and defendants appeal.

Reversed, and order of the Board of Zoning Appeals reinstated.

Argued before BOND, C. J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

Ernest F. Fadum, Asst. City Sol, of Baltimore (R. E. Lee Marshall, City Sol, of Baltimore, on the brief), for appellants.

Joseph S. Goldsmith, of Baltimore, for appellee.

BOND, Chief Judge.

This is an appeal in a third proceeding on applications for a use of a lot of ground in Baltimore City which the buildings engineer and the board of zoning appeals refused in each instance. The appellee, who was the applicant, owns a lot in a residential use district of the city, and has leased it to the United States for a substation post office there. A first application for a permit for the use, made in January, 1933 was refused because it was considered to be a business use prohibited for such a district by the zoning ordinance of the city. In October of the same year the second application was made by the appellee for the same use, and from the refusal in that instance, on the same ground, an appeal was prosecuted to the Baltimore City Court, as permitted by law. Applestein v. Baltimore, 156 Md. 40, 54, 143 A. 666. And after due hearing, the action of the board of zoning appeals was affirmed. As there was then no appeal allowed to this court, the owner subsequently, with a view to having an appealable order passed, sought a writ of mandamus to compel the buildings engineer to issue the desired permit, but the proceeding was held inappropriate, and no appeal was taken.

By the act of 1935, chapter 448, an appeal to this court in proceedings under the zoning ordinance was allowed, and on September 20, 1935, the owner made her third application for the same use. It is conceded that there had been no change in the proposal, either in the use planned, or in the neighborhood conditions; and there was none in the relevant ordinances. The Baltimore City Court, on appeal, however, this time reversed the action of the board of zoning appeals. The city now appeals to this court.

The effect of the decision on the earlier appeal to the Baltimore City Court presents a foremost question. No appeal having been allowed from that decision, it is questioned whether the rule of res judicata ordinarily applicable could give it a binding effect now that the case has reached this court under the act of 1935. The rule is not so qualified. It is a rule limiting parties to one final decision from the courts on one controversy between them. "An existing, final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon matters within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit." Christopher v. Sisk, 133 Md. 48, 51, 104 A. 355, 356; Emmert v. Middlekauff, 118 Md. 399, 404, 84 A. 540.

The fact that the decision on the earlier application was rendered by a court of inferior jurisdiction does not detract from its binding force under the rule when the controversy is brought up on a further appeal. A right of further appeal was not necessary to constitute the earlier decision a complete, final adjudication. In Johnson Steel Street Rail Co. v. Wharton, 152 U.S. 252, 256, 14 S.Ct. 608, 609, 38 L.Ed. 429, a case on infringement of a patent, the question at issue had been decided in an earlier suit in the lower federal court when the amount of money involved was too small to permit an appeal, and the question was nevertheless held closed by the first decision. "Does the principle of res judicata," said the Supreme Court, "in its application to the judgments of courts of general jurisdiction, depend, in any degree, upon the inquiry whether the law subjects such judgments to reexamination by some other court? Upon principle and authority, these questions must be answered in the negative. We have not been referred to, nor are we aware of, any adjudged case that would justify a different conclusion. The object in establishing judicial tribunals is that controversies between parties, which may be the subject of litigation, shall be finally determined. The peace and order of society demand that matters distinctly put in issue and determined by a court of competent jurisdiction, as to parties and subject-matter, shall not be retried between the same parties, in any subsequent suit in any court. The exceptions to this rule that are recognized in cases of judgments obtained by fraud or collusion have no application to the...