Osborne v. Grauel

• Decision Date: 05 February 1920
• Docket Number: 23.
• Parties: OSBORNE, Building Inspector of Baltimore City, v. GRAUEL.
• Court: Maryland Court of Appeals

110 A. 199

136 Md. 88

OSBORNE, Building Inspector of Baltimore City, v. GRAUEL.

No. 23.

Court of Appeals of Maryland

February 5, 1920

Appeal from Superior Court of Baltimore City; Carroll T. Bond Judge.

"To be officially reported."

Application for mandamus by Harry Grauel against Charles H. Osborne Building Inspector of Baltimore City. From an order granting the writ, respondent appeals. Order reversed, and cause dismissed.

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

Edward F. Johnson, Asst. City Sol., and Roland R. Marchant, City Sol., both of Baltimore, for appellant.

Daniel C. Joseph and J. Le Roy Hopkins, both of Baltimore, for appellee.

STOCKBRIDGE J.

The record in the above-entitled case presents as the foundation of the action an application for a building permit. The permit under the ordinances of the mayor and city council of Baltimore required the approval of the mayor, and a paper is presented evidencing the permit, bearing date May 14, 1919 and which reads as follows:

"Permission is hereby granted to Jos. S. Small to erect Public Garage, W. S. Prospect Av. 100 ft. S. of Oakdale Av."

This was approved by James H. Preston as mayor of the city, and by him handed to the appellant. Across the face of this permit was written the word "Disapproved."

According to the evidence adduced in support of the application for a mandamus, this entry of disapproval was made after Mr. Preston ceased to be mayor, and Mr. Broening had succeeded him in that office.

The appellant gives as the reason for the disapproval and refusal to deliver the permit a discrepancy in the place intended to be filled in with the name of the owner, and which was actually filled in in the name of the builder; but, inasmuch as this paper bore the signature both of Mr. Grauel, the owner of the property, and Mr. Small, the contractor, that can hardly constitute an adequate reason for the failure to deliver the permit.

There further appears what is called an application for a new building, and which application is for the erection of 19 buildings, to be used in its entirety as a public garage. This bears no mark of approval, nor any signature except that of C. H. Osborne, the inspector of buildings. Here is a discrepancy between the application for the permit and the permission granted of a far more serious nature than the transposition of the two names.

The lot upon which this public garage was to be erected was 190 feet 8 inches by 25 feet, and according to the testimony the purpose was not to erect it immediately upon Prospect avenue, but upon the rear portion of a lot fronting on Prospect avenue, and which portion so to be improved, it is testified, was accessible by means of an alley, the other improvements upon which were of not an especially desirable type in a resident section, as, for example, paint shops and plumbing shops.

The evidence is to the effect that Mr. Broening as mayor declined to approve this application, in which act he was discharging one of his official functions as the head of the municipal corporation, and not acting in any personal capacity. He should therefore as mayor have been made a codefendant with Mr. Osborne, whereas the application for the mandamus was against Mr. Osborne alone, as the inspector of buildings.

The lot upon which it is proposed to erect this garage adjoined the then suburban development known as Roland Park, and by the Annexation Act now within the corporate limits. The reason assigned by Mayor Broening for his refusal to sanction the permit was that "he didn't think garages ought to be built in that community; that it was a very nice class of property out there, and that these garages would depreciate the value of the property, *** and that the character of the proposed buildings did not conform to the other improvements in the neighborhood."

The appellee in his argument and in his brief speaks of the permit as issued, but not delivered; but this is a distinction which cannot be validly drawn. The mere manual signing by the mayor of a municipal corporation is not an issuance of the paper so signed, but to constitute a completed issuance there must be delivery, as well as the manual signing.

The theory of the appellee is that the refusal of Mayor Broening to sign and issue the desired permit was based solely on esthetic reasons, and that such reasons could not constitute a valid ground for his action. On the other hand, the theory of the city is that by his action or inaction the mayor was exercising a police power, or acting under the welfare clause of the city charter, and that this called for the exercise of a discretion, and that the court would not override the action of the chief executive of the city, where he had been invested with such discretionary power.

For good reasons courts have been extremely loath to attempt any precise definition of what constitutes the police power, and, whatever the police power of the state may be, so far as Baltimore city is concerned, that power has been granted to the municipal corporation. This subject was fully discussed by Judge Pearce in Rossberg v. State, 111 Md. 394, 74 A. 581, 134 Am. St. Rep. 626, and upon this point he says:

"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

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